A reader writes,
I found your most recent post on incorporation to be very intriguing, especially since I just finished taking Crim Pro three weeks ago (summer school), where we studied incorporation briefly. Suffice it to say I took away from it that incorporation was more or less "tit for tat" (with the obvious exceptions of the 7th amendment and the grand jury requirement), and functioned as a sort of substitution, so that the 14th amendment simply imported the protection of the bill of rights against the states.
This is a very common and very clumsy understanding of the doctrine of incorporation; you might call it vulgar incorporation. It is, in fact, the way courts tend to view the subject today. (Note that my post was about how incorporation ought to work.) But it is not supported by the case law.
Incorporation is a function of the due process and privileges and immunities clauses; what the court does is evaluate whether a given right or legal institution is “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), so that it can either be considered fundamental to the concept of “law” in the American legal order, or one of the privileges or immunities of citizenship. If so, then the legal process must respect that institution. If not then states are not required to abide by that institution.
The Palko Court considered whether the right to a jury was of such a nature:
The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.
Id. You can see the reasoning here: it’s not that states simply step into the shoes of the federal government as far as the Bill of Rights is concerned. It’s that the court must evaluate whether the institution at issue (trial by jury in Palko) is so central to American legal institutions that depriving a person of that institution would be to deprive them of either their privileges and immunities, or of due process of law.
This discomfits some conservatives, because it is a dynamic process that does leave room for judges to act on the basis of political philosophy—something that sounds a lot like subjective living constitutionalism to them, and that’s understandable. Yet it’s also clear that that is just what the authors of the Fourteenth Amendment had in mind. Asked what the content of “privileges and immunities” in the Amendment would be, Senator John Sherman explained that judges interpreting the clause would
look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of Lords Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens.
Palko, of course, was overruled in Benton v. Maryland, 395 U.S. 784, 794 (1969), because the Court determined that “the right to trial by jury in criminal cases was ‘fundamental to the American scheme of justice’...[and] that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.” Benton represented something much closer to a one-to-one vulgar incorporationism, and the courts have indeed turned in that direction. But that’s now how it’s supposed to be working.
The reader continues,
I know you mentioned in your post you weren’t trying to encompass the scholarship on this issue, but I was wondering if you wouldn’t mind pointing me towards a good starting point, especially law review articles.
Unfortunately, I don’t know of any. My understanding of these issues is based on the cases themselves. The best available sources I know on incorporation are Michael Kent Curtis’ No State Shall Abridge (about the privileges or immunities clause) and Akhil Amar’s The Bill of Rights, particularly the latter. But neither one gets too deeply into the nuances of incorporation under the due process clause.
Update: From Twining v. State of New Jersey, 211 U.S. 78, 99-102 (1908) (citations omitted):
it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law. Few phrases of the law are so elusive of exact apprehension as this. Doubtless the difficulties of ascertaining its connotation have been increased in American jurisprudence, where it has been embodied in constitutions and put to new uses as a limit on legislative power. This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise. There are certain general principles, well settled, however, which narrow the field of discussion, and may serve as helps to correct conclusions. These principles grow out of the proposition universally accepted by American courts on the authority of Coke, that the words ‘due process of law’ are equivalent in meaning to the words ‘law of the land,’ contained in that chapter of Magna Charta which provides that ‘no freeman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers or by the law of the land.’ From the consideration of the meaning of the words in the light of their historical origin this court has drawn the following conclusions:
First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. This test was adopted by the court, speaking through Mr. Justice Curtis. Of course, the part of the Constitution then before the court was the 5th Amendment. If any different meaning of the same words, as they are used in the 14th Amendment, can be conceived, none has yet appeared in judicial decision. ‘A process of law,’ said Mr. Justice Matthews, commenting on this statement of Mr. Justice Curtis, ‘which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country.’ Hurtado v. California….
Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practised by our ancestors, is an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight jacket, only to be unloosed by constitutional amendment. That, said Mr. Justice Matthews…‘would be to deny every quality of the law but its age, and to render it incapable of progress or improvement.’
Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law, and protect the citizen in his private right, and guard him against the arbitrary action of government.