Kurt T. Lash (Loyola Law School Los Angeles) has posted Beyond Incorporation on SSRN. Here is the abstract:
Incorporation
as a theory of constitutional interpretation is dying. Incorporationist
scholars are killing it. In this paper, I argue that they are right to
do so, whether they mean to or not. The current incorporation debate
bears so little resemblance to the theory of incorporation as it
originally emerged at the time of the New Deal that I argue it is time
to abandon the metaphor of incorporation altogether and admit that what
we are after has nothing to do with incorporated texts from 1787. Our
search is for the public understanding of texts added to the
Constitution in 1868. Because members of the Reconstruction Congress
often linked the meaning of the Fourteenth Amendment to the Bill of
Rights, at first glance my proposal may seem to offer a distinction
without a difference. In fact, I believe a complete break from
incorporation-talk is an important step towards a more
historically-contextual investigation of the original meaning of the
Fourteenth Amendment. Not only does it allow for a more historically
accurate account of Fourteenth Amendment-period rights, it also opens
the door to a more nuanced historical account that gives due weight to
federalism concerns which informed the original understanding of the
Amendment.
Lash gave this paper yesterday at the excellent conference on the Bill of Rights and the 14th Amendment at the University of San Diego. Highly recommended.