I’m going to start off by saying that I am not a lawyer and that the main purpose of this article is to facilitate a discussion, which I hope will be thought-provoking.

In Tom Woods’ Episode 2154 on July 2, “Roe Overturned: Historians Discuss the Decision”, he discusses the recent Dobbs v. Jackson Women’s Health Organization decision with historians Kevin Gutzman and Brion McClanahan. The topics covered expanded to include a brief description of the incorporation doctrine, how it has been applied (or not) to recent Supreme Court opinions, and whether or not it is valid.

First, the Dobbs decision. Unsurprisingly, Woods, Gutzman and McClanahan were all in agreement that Roe v. Wade and Planned Parenthood v. Casey were improperly decided. They bemoaned the tendency of the court, starting in the 20th century, to issue rulings that are closer to policy decisions than an exercise in Constitutional law. Symptomatic of this was William Brennan’s infamous (alleged?) comment to some law clerks that he operated according to the rule of five; with five votes he could do anything.

They noted that the written Dobbs decision addressed this explicitly: that Roe, with its detailed listing of the conditions under which abortions could and could not be performed, was more like a piece of legislation than a court decision based on the Constitution. Furthermore, they disagreed with progressives’ claims that Dobbs was legislating from the bench, since the Supreme Court did not impose blanket restrictions on abortion, but left that decision to the states. None of this is new or revelatory to a Glibertarian, of course.

They next contrasted Dobbs with New York State Rifle & Pistol Association v. Bruen, the recent decision which ruled that New York’s law requiring applicants requesting a concealed carry permit had to state a “proper cause” or special need distinguishable from the general public. Under Bruen states are not free to impose such restrictions on potential gun owners, but under Dobbs, states are allowed to place certain restrictions on abortion.

The standard argument for this distinction is that abortion is not specifically mentioned in the amendments to the Constitution, whereas obviously gun ownership is. However, Gutzman and McClanahan argue that this misses the point. The key principle is whether the various amendments apply to the states, and not just the federal government – the so-called incorporation doctrine.

After all, the First Amendment starts “Congress shall pass no law …” (italics mine), and doesn’t on its face restrict the states from doing so. (Of course, the other amendments do not use this construction.) For example, in 1833, in the case Barron v. Baltimore, the Supreme Court ruled (via a 9-0 decision) that the Fifth Amendment prohibition on unjust takings of private property for public use applied only to the federal government.

This attitude changed with the passage of the Fourteenth Amendment in 1868, the first article of which is

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment was used to claim that the restrictions on government in the Bill of Rights applied to not just the Federal Government, but to the states as well.

But Gutzman argued that historically of the Bill of Rights was intended to limit the powers of Congress and the federal government, and the idea of incorporation was not in the language of the Fourteenth Amendment or the Bill of Rights; due process and equal protection do not speak to incorporation. Therefore using the Fourteenth Amendment as the basis for incorporation is “nonsensical.”

McClanahan added that Madison proposed an incorporation amendment, but it was explicitly not included in the Bill of Rights. Therefore he claims that the Supreme Court needs to consistently argue against incorporation. Gutzman mentioned that Clarence Thomas’s concurring opinion – which has been excoriated in progressive circles – was in reality a call to do just this, and not necessarily a call to impose conservative values. Logically, we can’t undo one (Roe) without undoing the others (Bruen et al.).

McClanahan commented that the constitution would not have been ratified without the understanding of originalism, which did not include, he claimed, the idea of incorporation. Gutzman and McClanahan make the case that states should be able to pass laws restricting their citizens’ rights that the federal government is not allowed to. New York should be able to pass restrictive gun laws, Mississippi restrictive abortion laws, and so on. People who disagree with a state’s law can appeal in state court, but not in federal court.

For me (and again, IANAL), since the Fourteenth Amendment came after the constitution and the Bill of Rights, an appeal to originalism in the Constitution and the Bill of Rights (the first ten amendments) does not necessarily apply to an interpretation of the Fourteenth Amendment. So, does the prohibition on states making laws which abridge the privilege and immunities of U.S. citizens also apply to making laws abridging their rights as outlined in the Constitution and the various amendments? If so, why not specify “rights” explicitly?

On the other hand, Congressman John Bingham of Ohio, one of the original drafters of the Privileges and Immunities Clause of the Fourteenth Amendment, said in 1871 that the P&I Clause was deemed necessary for the enforcement of the corresponding Privileges or Immunities Clause in Article IV of the Constitution as an express limitation upon the powers of the States.

What are your thoughts on this? Are there any lawyers or constitutional scholars out there who can add any clarification? Have at it.