At Summary, Judgment, William Baude: Originalism and "Dual-Track Incorporation". From the introduction:
There’s lots to say about [the Supreme Court's] decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn’t exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.
And from further along:
The kind of two-track incorporation that Justice Gorsuch rejects [in Ramos] is the “the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” I think he rejects this notion for good reason, and it’s easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.
But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government….
I agree, at least to this extent: the proposition that incorporated rights under the Fourteenth Amendment mean the same thing that those rights mean in the Bill of Rights (a) isn't self-evident, and (b) hasn't been conclusively demonstrated by originalist scholars or judges.
Posted at 6:06 AM