When my former law professor, mentor, friend, and colleague at Wake Forest Law School for eighteen years, Professor Michael Kent Curtis, retired in the fall of 2020, I minded, quite frankly, more than I can say. In many ways, Professor Curtis has been the North Pole of my career. Michael inspired me to think that my career as a law professor could be possible. And as one of the earliest advocates for my tenured appointment at Wake Forest, he provided not only the inspiration but, in a material sense, the path to its realization. Words fail me in expressing gratitude for that early and essential support.
Beyond that, Michael has been the model for the kind of scholar I strive to be: always honest (a virtue in the context rarer than one might think), fierce but compassionate, rigorous, path-charting, and practical (translation: useful to lawyers). He knew how to pick his battles, but he never shirked a challenge he thought worth rising to, however the odds may have looked on the outside.
In my view, Professor Curtis’s most important victory came in his clash with Raoul Berger, the most prominent academic opponent of the application of the Bill of Rights of the federal Constitution to the states—so-called incorporation. While the Supreme Court famously shrank the Privileges or Immunities Clause of the Fourteenth Amendment to virtual nonexistence, it had, in fact, beginning in the 1920s, held the states bound by federal constitutional safeguards. By 1968, the Court had applied nearly all of the Bill of Rights to the states by reading substantivity into the Fourteenth Amendment’s Due Process Clause. This approach was the anathema of the country’s archconservatives, and its legitimacy remained under sustained but largely futile attack.
