Un-incorporating the Bill of Rights: the tension between the Fourteenth Amendment and the federalism concerns that underlie modern criminal procedure reforms.

AuthorMarceau, Justin F.

Judicial self-restraint which defers too much to the sovereign powers of the states and reserves judicial intervention for only the most revolting cases will not serve to enhance Madison's priceless gift of "the great rights of mankind secured under this Constitution."

--Justice William J. Brennan, 1961 (1)

Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination.... The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.

--Justice Felix Frankfurter, 1953 (2)

The selective incorporation of the Bill of Rights through the Fourteenth Amendment is the hallmark of modern criminal procedure and represents a turning point in our nation's collective understanding of federalism. (3) By incorporating the Bill of Rights--both as to non-criminal rights such as free speech, (4) and as to criminal rights such as the right to counsel (5)--the Supreme Court sent a clear message to the states: the protections afforded to individuals under the Bill of Rights applied with equal force to state and federal governments. (6) Concerning the protection of rights enshrined in the Bill of Rights, incorporation and the Supremacy Clause required that "the states were to receive no greater deference for their judgments than the federal government." (7) This was consistent with the view of Alexander Hamilton that, particularly in the case of federal rights that are locally unpopular, the "local spirit may be found to disqualify the local tribunals for the jurisdiction of national cases." (8)

Recently, however, the Supreme Court's understanding of the relationship between state and federal courts regarding questions of federal constitutional law has strayed from the first principles of incorporation. The Court's federalism jurisprudence is so fractured as to defy a coherent narrative. The Supremacy Clause continues to be given the utmost force in the context of federal preemption, (9) but the Supreme Court's unwillingness to insist on a meaningful and uniform application of federal rights, in particular constitutional criminal procedure rights, calls into question the vitality of incorporation as a principle of hornbook constitutional law. (10) The most anticipated federalism decision of the 2007 term, Danforth v. Minnesota, (11) was illustrative of the confusion that surrounds the future of constitutional criminal procedure in general, and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) in particular. (12) In a surprising twist of alliances, Justices Roberts and Kennedy dissented from the seven-member majority's refusal to hold that state courts were constitutionally bound to the rules of retroactivity applicable to federal habeas corpus decisions; the two Justices dissented on the grounds that the role of federal courts in ensuring the uniform application of federal law is a "bedrock" principle of federalism. (13) Notably, both the majority and the dissent agreed that rules of constitutional law dictate uniformity; the disagreement arose as to whether the Court's retroactivity jurisprudence was of constitutional magnitude. (14) This Article sets out to unpack the tension between the view shared by all nine Justices in Danforth that the Supremacy Clause of the Constitution dictates that federal rights be applied uniformly and without exception by all state courts; and the Court's adjudication of the constitutional rights announced in the Fourth, Fifth, Sixth, and Eighth Amendments. (15)

Stated another way, a half-century has passed since the Bill of Rights began to be incorporated through the Fourteenth Amendment, (16) and it is useful to consider whether the fundamental rights announced in the first eight amendments to the Constitution continue to enjoy as much force, effect, and supremacy when applied against the states as they do when applied to the federal government. (17) Recent legislation and federal cases suggest that, at least with respect to the constitutional rights of criminal procedure, there is a movement afoot that defies the black letter conception of incorporation and instead favors deference to local interpretations of the Bill of Rights. That is to say, an argument can be made that the criminal procedure rights are being, if not radically un-incorporated, gradually rendered less effectual.

This Article examines the Court's willingness to tolerate, indeed endorse, localized applications of the constitutional amendments regarding the rights of criminal defendants, and contrasts this with the Court's continued adherence to the principle that it is the Court's "role under the Constitution as the final arbiter of federal law, both as to its meaning and its reach, ... to ensure the uniformity of that federal law." (18) Because the Court continues to describe glowingly the supremacy of federal pronouncements in the field of criminal procedure, the question necessarily arises whether the Court's Fourteenth Amendment (incorporation) and Supremacy Clause jurisprudence are compatible with the limitations imposed on criminal defendants attempting to vindicate their federal rights. (19) Recognizing that federal habeas corpus proceedings may be the best, and in some instances the only, vehicle available for ensuring state court adherence to the Constitution, this Article devotes significant attention to the correlation between the availability of federal habeas corpus relief and the ability of a defendant to vindicate his constitutional rights. (20)

As a matter of history, many fundamental criminal procedure rights were discovered and announced on federal habeas corpus review. As a practical matter, the fact that writ-of-error review as of right no longer exists dictates that the Supreme Court, through its discretionary certiorari jurisdiction, will rarely exercise jurisdiction over state criminal convictions. Accordingly, by curtailing substantive federal review of claims asserting federal constitutional rights in the habeas context, the federal rights themselves are, for all intents and purposes, no longer under the guardianship of the federal system, and instead are largely left to the discretion of state courts. (21) That is to say, legislation and case law, working in tandem, have begun to substantially undermine the principle that was at the core of the incorporation doctrine--that states were to receive no greater deference than the federal government in adjudicating the Constitution. (22) Nonetheless, after exploring the tension between recent criminal procedure reforms and the Fourteenth Amendment, as interpreted by the Supreme Court, this Article suggests that it is an open question as to whether the unincorporation (or shrinking) of federal criminal procedure rights will help more than it hurts criminal defendants. (23)


    When people proclaim that they know their "rights," they are often referring in some general way to the Bill of Rights. (24) As Professor Akhil Amar has observed, persons asked about their rights or privileges as U.S. citizens will almost invariably "invoke rights that are explicitly declared in the Bill of Rights.... " (25) The rights to speech, religion, a fair trial, and to be free of cruel and unusual punishment, to name but a few, are viewed as synonymous with citizenship. (26) However, at least for the first century and a half of our constitution's history, the rights announced in the Bill of Rights were illusory as applied against the states. Until the middle of the twentieth century, an individual could not complain that his rights under the first ten Amendments were being violated by a state or local government; the Bill of Rights applied only to regulate the behavior of the federal governments. (27)

    In Barron v. Baltimore, Chief Justice John Marshall considered the question of whether the Bill of Rights applied to the states as well as the federal government. (28) In Chief Justice Marshall's view, the question was "of great importance, but not of much difficulty." (29) In ruling that the Fifth Amendment's prohibition on the taking of private property for public use without just compensation did not apply to state or local governments, Marshall reasoned that "[t]he [C]onstitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states." (30) Explaining further, Marshall added:

    Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had [C]ongress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language. (31) To be sure, Marshall's interpretation of the Bill of Rights was not an unprincipled limitation on the rights of individuals. (32) The enactment of the Fourteenth Amendment, however, provided the Court with a new lens through which to view this question of "great importance." By the mid-1960s, the Court had abandoned the framework set forth in Barron and ruled, instead, that (most of) the Bill of Rights was incorporated so as to apply against the states by virtue of the Due Process Clause of the Fourteenth Amendment. (33) That is to say, the Court adopted a position akin to the now mainstream view that the Bill of Rights applied against the states, (34) and over time held that the Fourteenth Amendment "impose[s] upon the states all of the [criminal] procedural guarantees of the Bill of Rights except for...

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