The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control laws. Lost in this, however, is the story of how conservatives stopped worrying about the Court applying (“incorporating”) the Bill of Rights against the states. Not only is this story underemphasized, when recounted it has been rendered inaccurately. Contrary to existing accounts by legal scholars and historians, it was neither academic lawyers nor the vanguard of libertarian legal interest attorneys who cleared the path for constitutional conservatives to embrace incorporation.
In short, here’s what happened: instead of continuing to complain that the Warren Court had erred in applying the full force of the Fourteenth Amendment and First Amendment’s religion clauses to the states—an important ideational aspect of judicial and movement conservatism in the 1950 through the 1970s—farsighted entrepreneurial political actors in the 1980s saw that arguments for “disincorporation” hindered movement conservatives’ larger constitutional politics project.
The more detailed story starts with originalism’s official coming-out party. Friend and foe agree that came on July 9, 1985 at an American Bar Association conference. To that audience Reagan’s Attorney General Ed Meese gave an important and now canonical speech. The speech, drafted by his constitutional theorist speechwriter, Gary McDowell (who self-consciously relied on the scholarship of Robert Bork and Raoul Berger in crafting the speech), set forth what would soon be known as originalism. Meese called for a “jurisprudence of original intent,” arguing for exclusive reliance on “original intent,” the “text of the document,” the “structure of the Constitution,” and the historical understanding of the Founding Fathers—all in the service of “constitutional fidelity.” (Academic lawyers sympathetic to originalism call this, somewhat erroneously, “old originalism”).
As intended by the Meese DOJ, the speech sparked a high-salience debate with public responses from the liberal and moderately liberal Justices Brennan and Stevens, an unusual occurrence in the mid-1980s. In fact, Senator Barry Goldwater, who had invoked the “original intent” construct a quarter-century earlier in his movement-defining The Conscience of a Conservative, took to the Senate floor to praise Meese for his ABA speech: “the Attorney General is acting in the best tradition of American freedom” by “breath[ing] fresh life into the concepts of the framers of the Constitution, particularly relative to the principles of limited governmental powers and federalism.”
But the speech is also as important for the content Meese left on the cutting room floor. At the 1985 ABA speech, Meese importantly omitted from his prepared text this sentence: “Nowhere else has the principle of federalism been dealt so politically violent and suspect a blow as by the theory of incorporation.” Charles E. Rice, a conservative Notre Dame law professor who was given an advance copy of Meese’s speech, was enraged by this omission. In the Wall Street Journal, Rice rebuked Meese: “It may take 96 years . . . but the incorporation doctrine will be overturned. And some law school will someday establish the Brevard Hand Chair of Constitutional Principle.” (Brevard Hand was a Nixon-appointed Alabama federal district court judge who had issued a cri de couer taking the form of a judicial opinion in 1983 (Wallace v. Mobile County) contending that, based on the “original intent” of the Founders, the First Amendment did not apply to the states).
To journalistic follow-up on his decision to drop the incorporation debate, Meese simply responded that, “I do not have any particular quarrel at this stage of the game with what the court has done.” Meese’s purposeful of omission of the text about incorporation was not missed by Robert Bork. In 1991, the prominent originalist announced that no one cared about incorporation anymore, telling PBS “those battles are long over.”
However, scholars appear to have missed this important development. For example, in an otherwise dazzling analytic history of libertarian legal groups–groups Jefferson Decker demonstrates pioneered many of the novel legal arguments libertarian legal scholars and activists now champion–he argues that Meese’s speech hanging on to “disincorporation” places the Reagan-era constitutional conservatives against the libertarian rights revolution he so ably documents.
This is hardly the only instance. In 2009—in the wake of Heller and presumably looking forward to McDonald (2010)—a number of legal scholars, including prominent originalists, held a conference at a hotbed of originalist legal thought: University of San Diego. The conference was meant to flesh out the interaction of the Bill of Rights and the Fourteenth Amendment—that is, incorporation. Indeed, one prominent originalist, apparently unaware that the nature of the relationship between constitutional conservatism and incorporation had long since been determined by political actors in the Reagan DOJ, wrote on the topic at length. Even today, originalists still cite to the incorrect text of Meese’s speech.
The incomplete nature of the National Archives’ Reagan DOJ collection has likely contributed to scholarly confusion. NARA contains only the prepared text of Meese’s speeches, including the important ABA speech. (Moreover, if one searches for the ABA speech on the internet or any of its “published” guises, the inaccurate version of the speech is ubiquitous). However, Meese’s papers–housed at the Hoover Institution–solve the apparent tension between the contemporaneous reaction to Meese’s choice to drop the incorporation debate and received scholarly wisdom. It is clear from Meese’s papers that he did not hesitate to depart from the text (perhaps ironically) of the speeches presented to him by DOJ and Office of Legal Policy lawyers. This is precisely what happened on July 9, 1985–Meese scratched the incorporation line (among others) from the text prepared by McDowell (N.b., McDowell does not recall why Meese did so).
Meese’s decision to put to bed the debate over incorporation is crucial to understanding the constitutional rights project of movement conservatives invoking (certain) rights. For economic conservatives and libertarians, the Takings Clause was crucial to combat state economic regulations. In 1985, before the Lochner rehabilitation project was fully underway, it would have created cognitive and legal argumentation dissonance for conservatives to continue to push disincorporation while protecting the Takings Clause. And as the Christian Right demanded religious liberty and religious freedom vis-a-vis cultural minorities it found morally problematic and simultaneously desiring to enlist the state to support religious schools and rites, following Brevard Hand’s lead would have proven problematic in keeping this Court-focused coalition group satisfied. Finally, and importantly, it was racial conservatives who gave up the most in ceding this constitutional debate–their dream of disincorporating the equal protection clause. (In 1978, Buckley had Raoul Berger on Firing Line. Buckley offered, “I can see an argument for simply ignoring the 14th Amendment”). However, as constructed—awkwardly on this point—originalism could provide an acceptable middle-ground for both GOP racial moderates–especially pro-business economic conservatives–and racial conservatives: the colorblind constitution. Moreover, the colorblind constitution could also serve as a constitutional backstop to racial conservatives worried about protecting the rights of (primarily) white men concerned about affirmative action.
In short, this is not mere trivia. It is important to recover what actually happened because it sheds light on the scope and development of constitutional originalism, the hegemon of constitutional politics on the Right and an approach legal liberals pay some fealty. This account is a first step in setting forth a new and more accurate way of understanding why and when conservatives began to embrace incorporation. Now that the empirical ground is cleared, scholars should continue to explore this “move” and the implications it holds for paths taken (and abandoned) by constitutional conservatives.
 Charles E. Rice, “Flimflam Under the 14th,” Wall Street Journal, July 31, 1985.