Nonincorporation: the Bill of Rights after McDonald v. Chicago.

• Author: Thomas, Suja A.

Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, "nonincorporated" rights--the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right--rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court's jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation--that a right is not fundamental--or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court's jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court's theory of selective incorporation more justifiable.

INTRODUCTION

For many years, justices of the Supreme Court have articulated theories regarding whether rights in the Bill of Rights apply against the states to defend their decisions on which rights apply against the states. (1) Likewise, using such theories, scholars have argued for and against the application of rights in the Bill against the states. (2) Also, over time, many of the rights that the Court initially decided do not apply against the states shifted to decisions to incorporate. (3) However, certain rights have remained "nonincorporated." (4)

The question of incorporation has never been viewed from the perspective of "nonincorporation." Prior to McDonald v. Chicago, in what this Article terms the "nonincorporation" decisions, the Court decided against incorporating the Second Amendment right to bear arms, (5) the Fifth Amendment grand jury right, (6) the Sixth Amendment criminal jury unanimity requirement, (7) and the Seventh Amendment civil jury trial right. (8)

In McDonald, the Court incorporated the Second Amendment pursuant to the Fourteenth Amendment, the plurality under selective incorporation under the Due Process Clause, (9) and Justice Thomas who concurred under the Privileges or Immunities Clause. (10) In the decision, the Court left open the possibility that the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right could be incorporated in the future. It emphasized that in past decisions on the Fifth Amendment grand jury right and the Seventh Amendment civil jury trial right, it had decided against incorporation prior to selective incorporation, similar to the pre-McDonald decisions on the Second Amendment. (11) For the remaining right that it had affirmatively decided not to incorporate against the states in the past--the Sixth Amendment criminal jury unanimity requirement--the Court stressed that an odd decision had resulted from the division of the Court in that case. (12) Importantly, a "single, neutral principle" based on whether a right was fundamental should guide the incorporation of the Bill of Rights against the states; only this principle and, if applicable, stare decisis stood in the way of incorporation of the remaining nonincorporated rights in the Bill. (13) In dissent, Justice Stevens criticized the plurality's opinion by, among other things, pointing out the parts of the Bill of Rights that the Court had decided did not apply against the states, and the unwillingness of the Court to grant certiorari on the unanimity question. (14)

Scholars have never studied the nonincorporated rights and examined whether the Court has a theory of nonincorporation. The theory could be simply the opposite of selective incorporation--that a right is not fundamental--or, it could be, that the Court has not incorporated the rights for some other reasons. This Article explores these possible theories of nonincorporation. It further discusses whether nonincorporation of the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right is justifiable under any such theory of nonincorporation.

Part I begins with a brief discussion of the theories of incorporation that existed prior to the Supreme Court's decision in McDonald. Next, the Court's decisions not to incorporate the Second Amendment right to bear arms, the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right are discussed. Then, there is a description of the possible theories of nonincorporation prior to McDonald. After a discussion of the Supreme Court's decision in McDonald the possible theories of nonincorporation after McDonald are set forth. Part II examines the future of nonincorporation. It begins with a fresh examination of each of the nonincorporated provisions under the incorporation theory articulated in McDonald and also briefly discusses the rights in the Bill that the Court has never examined at all for application against the states. After deciding that the nonincorporated provisions are fundamental rights, the circumstances for stare decisis are explored and dismissed. The Article concludes that a nonincorporation theory is not defensible under the Court's current due process jurisprudence.

1. NONINCORPORATION UNDER THE JURISPRUDENCE OF THE SUPREME COURT

   Prior to McDonald v. Chicago, the Supreme Court decided that the Second Amendment right to bear arms, the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right did not apply against the states. (15) This Article refers to these decisions not to incorporate certain rights under the Bill of Rights as the "nonincorporation" decisions. In McDonald, the Court incorporated the Second Amendment. This Part explores the Court's possible theories of nonincorporation prior to and after McDonald.

   1. Theories of Incorporating Rights in the Bill of Rights Against the States

      To examine possible theories of nonincorporation of rights, it is helpful to start with a brief look at how incorporation of rights under the Bill of Rights has been viewed to date by the Supreme Court and scholars. In the first decision on the application of rights in the Bill to the states, Barron v. Baltimore, (16) the Supreme Court rejected that the Bill of Rights applied against the states. (17) After the adoption of the Fourteenth Amendment, in the Slaughter-House Cases, (18) the Court also dismissed any notion that the Privileges or Immunities Clause of the Fourteenth Amendment protected significantly against states' intrusion on rights. (19) Beginning in the late nineteenth century, the Court examined whether pursuant to the Due Process Clause in the Fourteenth Amendment, rights in the Bill should be incorporated against the states. (20) In these cases, the Court decided: whether a right was within due process was not related to the Privileges or Immunities Clause; (21) due process protected rights against state infringement if they were "in the conception of due process of law" and "not because those rights are enumerated in the first eight Amendments;" (22) the right did not apply to the states if a civilized system could be imagined that would not accord the particular protection; (23) some parts of the Bill of Rights applied against the states and some did not; (24) and the state fight was not always the same as the federal right. (25) In the 1960s, the Court began "selective incorporation" by deciding that the "Due Process Clause fully incorporates particular rights contained in the first eight Amendments." (26) Under this incorporation theory, the right was incorporated if it was essential to liberty and justice and therefore was a fundamental fight. (27) In the process of selective incorporation, the Court rejected the civilized society requirement, (28) it embraced the incorporation of the rights in the Bill, (29) and it rejected different interpretations of rights for the states and for the federal government. (30) Importantly, many of the rights that the Court previously had decided were not incorporated were deemed incorporated. (31)

      As this brief history describes, justices of the Supreme Court have discussed theories of incorporation, some under the Due Process Clause and some under the Privileges or Immunities Clause. Justice Black is the most well-known judicial advocate for incorporation under the Privileges or Immunities Clause. He propounded what has been referred to as "total incorporation" of the Bill of Rights. (32) He believed that the Fourteenth Amendment incorporated the Privileges or Immunities of citizens of the United States contained in the Bill against the states. (33) Justice Brennan proposed "selective incorporation"--the incorporation of fundamental rights in the Bill pursuant to the Due Process Clause of the Fourteenth Amendment. (34) Justice Frankfurter, on the other hand, had the view that no part of the Bill was "incorporated" against the states through the Fourteenth Amendment. (35)

      Professor Akhil Reed Amar also has discussed incorporation. In one of...