Un-Incorporating the Bill of Rights: The Tension between the Fourteenth Amendment and the Federalism Concerns That Underlie Modern Criminal Procedure Reforms
Marceau, Justin F., Journal of Criminal Law and Criminology
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. …