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.
Kurt T. Lash, Beyond Incorporation, 18 J. Contemp. Legal Issues (2009).