I’m not sure I understand the bit in Jack Balkin’s post (see also Randy) where he says that “If the Court’s argument about Congress’s intent in McDonald is correct, [i.e., if §1981 already applies the whole Bill of Rights to the states,] it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.”
Suppose it’s true that §1981 really does apply the Bill of Rights to the states. We’d still need to know whether §1981 is within the powers of Congress (most plausibly under §5 of the Fourteenth Amendment). This would require a holding that the Fourteenth Amendment authorizes applying the Bill of Rights to the states — in other words, a holding about incorporation.
Jack seems to deal with this objection in the following paragraph. (More or less; the following paragraph actually appears before the part about the superfluousness of the constitutional holding, and is aimed more at objections to the argument that §1981 incorporates the entire Bill of Rights, an argument I’m assuming to be correct for now.)
Fourth, we can argue that although Congress reenacted this language under its powers to enforce the Fourteenth Amendment, section 1981 is not congruent and proportional to the rights guaranteed by the Fourteenth Amendment, citing the Court’s modern section 5 jurisprudence in cases like Boerne and Garrett. It is therefore unconstitutional to the extent that it attempts to enforce the Bill of Rights. The difficulty here is twofold. First, a law which the Reconstruction Congress believed enforced the same rights as the Fourteenth Amendment must be congruent and proportional to the Fourteenth Amendment if any law is. Second, the fact that the Reconstruction Congress — consisting of the same people who passed the Fourteenth Amendment — passed the 1866 and 1870 Acts strongly suggests that the law is constitutional, and that Courts’ modern section 5 jurisprudence is simply wrong if it suggests otherwise.
This is possibly a good argument that the Fourteenth Amendment (whether §1 alone or §1 with §5) should be read as totally incorporating the Bill of Rights, and that current incorporation doctrine (and/or congruence & proportionality doctrine) is invalid. That sort of argument is not a shocker! Note, though, that most of the Justices do believe in precedent to a certain extent; Scalia has written that incorporation is probably wrong as an original matter but settled enough that it’s worth following as a matter of stare decisis.
But this doesn’t mean the constitutional holding in McDonald is superfluous. Finding that §1981 applies the Bill of Rights to the states requires a constitutional analysis of whether §1981 is within Congress’s §5 powers, which may or may not involve an analysis of whether the Bill of Rights is contained within the guarantees of §1. Under modern doctrine, we do this using our modern incorporation analysis, which is exactly what the Court did. Even if the Court (inadvertently?) held that §1981 applied the whole Bill of Rights to the states, that would require a modern incorporation analysis as part of the §5 inquiry in every case, as long as the Court continues to hold to modern incorporation doctrine. But a constitutional holding of some sort would have been required even if the Court had followed the reasoning in Jack’s paragraph above, junked modern incorporation doctrine, and taken §1981 as inherently within the scope of the Fourteenth Amendment.