Thursday, November 22, 2007

A Doctrinal "Feedback Effect"

In my last post, I raised a question concerning what I termed (incorrectly, as we will see) “reverse incorporation.” I posed a hypothetical in which one of the provisions of the Bill of Rights (I was using the Second Amendment) was originally understood to convey limited or no individual rights. However, in 1868, when the Fourteenth Amendment was ratified, the same Bill of Rights provision was (incorrectly) understood to convey broader individual rights, and it was generally understood that a purpose and effect of the Fourteenth Amendment was to bestow those broader rights on individuals as against state governments.

Under those circumstances, I asked, which construction would apply to the federal government (and the District of Columbia)? Logically, it would seem that the original, more restrictive understanding would apply. After all, the underlying Bill of Rights provision was not amended, and the Fourteenth Amendment does not apply against the federal government. On the other hand, it certainly is awkward and odd as a practical matter to apply one version of, say, the First Amendment to the federal government and another version to the states.

Finally, I mentioned that I recalled that Professor Akhil Amar had discussed the issue and advanced a justification for “reverse incorporation,” although I had not understood it.

I have found that passage, in Amar’s book The Bill of Rights, and thought I’d discuss it as best I can.

Amar’s discussion of what he calls a “feedback effect” (not “reverse incorporation”) of the Fourteenth Amendment occurs in the context of a discussion of the First and Fourteenth Amendments. By way of background, Amar’s view is that the core purpose of the freedom of speech provision of the First Amendment was, originally (i.e., in 1791), to insure that local citizens had the right to speak out against distant, unfaithful federal representatives. A corollary was that local juries were a key procedural protection – think of the John Peter Zenger case as the paradigm.

How, then, Amar asks, do we reconcile this with the modern tendency to take First Amendment issues away from juries by characterizing them as issues of law? Amar argues that this is justified by the Fourteenth Amendment. In 1868, the paradigmatic speaker in need of protection was not John Peter Zenger, but rather a beleaguered southern Unionist seeking to defend Reconstruction policy amidst a sea of hostile locals. In this context, juries were part of the problem, not part of the solution. The paradigms of the original First Amendment and the 1868 First Amendment (as incorporated by the Fourteenth) are essentially opposite in this respect.

But a question then arises. Let us assume that anti-jury rules are justifiable in Fourteenth Amendment-First Amendment cases involving states. Even so, how does that validate applying the same anti-jury rules to First Amendment cases involving the federal government? Amar puts it this way: “Can it be argued that the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action?”

Amar’s answer is unambiguous: “Yes it can.”

In the next post, I will try to pick my way through Amar’s argument in support of his conclusion to see (a) whether I can understand it, and (b) if so, whether it makes any sense.

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