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.
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. …