Antonin Scalia has been given much credit as a champion of “originalism,” a school of constitutional interpretation that bases its deductions on the common understanding reached at the time of ratification. Rejecting the view that the Constitution should be settled by gradual legal precedents, originalism generally places emphasis on original intent over historical trends. But despite his reputation, Scalia’s embrace of the “incorporation doctrine” undermines his credentials as a staunch originalist.

To his credit, Scalia did much to revive a virtually forbidden idea that had largely expired. By the time of his elevation to the Supreme Court, the position that the Constitution’s originally ratified understanding had remained relevant had frankly fallen out of favor for the greater part of a century.

The Progressive Era, the case of Lochner v. New York, and Franklin Roosevelt’s open threat to add as many as five additional Supreme Court justices to guarantee the endorsement of his constitutionally dubious New Deal programs did much to erode the Constitution’s original intent. In its place, a full embrace of stare decisis – the legal concept that judicial precedents are the most important factors in adjudicating disputes – took hold.

At the time of Scalia’s promotion to the Supreme Court, the subject of original ratified intent was neither routinely discussed by federal judges, nor widely accepted. To many observers, Scalia’s propensity to root many his opinions in an originalist frame of mind seemed as a radical departure from traditional legal norms. He also helped promote the Federalist Society, an organization that set out to disseminate originalist precepts and influence American jurisprudence.

Notwithstanding these circumstances, Scalia was no “originalist” in the technical sense. This can be determined categorically due to his adherence to the incorporation doctrine, the mythical notion that the 14th Amendment incorporated the first Eight Amendments as limitations against the state governments.

In the 2010 case of McDonald v. Chicago, Scalia argued that Chicago’s local ordinance banning the possession of handguns violated the federal Second Amendment. In a brief concurrence, he specified his reasoning was based on the “settled doctrine” of incorporation:

“I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it….”[1]

Incorrectly determining that the Second Amendment applied to the state governments, Justice Samuel Alito’s majority opinion held that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty,” and therefore “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right” against the states.[2]

Scalia’s concurrence in the McDonald case appeared to contradict his prior position on incorporation. In his 1997 book, A Matter of Interpretation, Scalia held instead that “properly understood,” the Second Amendment “is no limitation upon arms control by the states.”[3] Additionally, in a recorded interview at the Hoover Institution in 2009, he argued that incorporation was “a mistake” and commented that the notion that the Fourteenth Amendment was meant to be applied to the states is “probably false.”[4] These views, of course, are incompatible with Scalia’s concurrence in McDonald.

Despite his propensity to consider incorporation fallacious and unfounded, Scalia seemed to reconcile the disconnect between his public views and judicial actions by arguing that some subjects, with the passage of time and precedent, could never be reconsidered by modern courts:

“Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew…The whole function of the doctrine is to make us say that which is false under proper analysis must nonetheless be held to be true, all in the interest of stability.”[5]

By 2012, Scalia seemed to reverse his position on incorporation completely, considering it as a battle that could never be waged again.  In Reading Law: The Interpretation of Legal Texts, published two years after the McDonald decision, Scalia again considered incorporation as “settled law”:

“We would…accept as settled law the incorporation doctrine – whereby the Bill of Rights is made applicable to the states…even though it is based on an interpretation of the Due Process Clause that the words will not bear.”[6]

While admitting that the words and ratified intent of the 14th Amendment had no such purpose, he scolded the mere suggestion that incorporation could be reassessed or overturned. Despite this perspective, Scalia has often been deemed a “textualist” who derived his constitutional understanding from ratified prose. One prominent summary of Scalia’s legacy, for instance, considered Scalia’s adherence to textualism to be “his most important contribution to legal thought.”[7]

Scalia also opined in favor of the incorporation doctrine in the controversial 2005 case of Kelo v. City of New London, adopting the outlook that the Fifth Amendment takings clause applied to local governments.[8] He had also acquiesced to incorporation in the 1994 case of Albright v. Oliver on the grounds that the incorporation doctrine “is both long established and narrowly limited.”[9]

Scalia’s writings clearly demonstrate that he understood the historical controversy behind the incorporation doctrine, and at some points even questioned its legal legitimacy. Still, several of his written opinions show that he decided to eschew the ratified understanding of the 14th Amendment in order to blend in with orthodox jurisprudential approaches. By embracing the incorporation doctrine, he disavowed actual originalism.

Despite orthodox legal theory, history proves that incorporation of the Bill of Rights against the states was not intended by the 14th Amendment, and in the contemporary federal judges most often use the theory as an excuse to meddle with the internal affairs of the states. In effect, the incorporation doctrine allows federal judges to rule by personal preference rather than original intent. By overriding the independent will of the states, incorporation has effectively transformed the federal judiciary into an oligarchy.

Undoubtedly, Scalia deserves much credit for resurrecting some founding principles in a time wherein they had almost become extinct. Still, the adulation he receives should also be met with a fair amount of criticism as well. There is no element of legal dogma that has empowered federal judges more, to the detriment of the states, than the incorporation doctrine.


[1] McDonald v. Chicago, 561 US, 742 (2010).

[2] McDonald v. Chicago, 561 US, 742 (2010).

[3] Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997), 137.

[4] “Uncommon Knowledge: Antonin Scalia,” FOR, January 13, 2017; available at

[5] Antonin Scalia, A Matter of Interpretation, 138-139.

[6] Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson West,  2012).

[7] Noah Feldman, “Scalia’s Classic ‘Textualism’ Will Be His Legacy,” BloombergView, January 14, 2017; available at

[8] Keo v. City of New London, 545 US 469 (2005).

[9] Albright v. Oliver, 510 US 266 (1994).

Dave Benner
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