Why Is Incorporation of the Bill of Rights Hot Again?

by Michael C. Dorf

Today on Verdict you can find Prof Colb's discussion of the recent cert grant in Ramos v. Louisiana, which poses the question whether the Sixth Amendment is fully incorporated against the states. In 1972 in Apodaca v. Oregon, the Court said that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to jury trial in serious criminal cases in state court but does not incorporate it jot-for-jot; thus, although the Sixth Amendment requires unanimous juries in federal court, the Fourteenth Amendment permits conviction by a less-than-unanimous jury in state court.

Actually, the Court did not say that. Only Justice Powell did. All of the other justices thought that the Fourteenth Amendment incorporates the Sixth jot-for-jot, but some thought both require unanimity and others thought neither requires unanimity. Powell was in the middle and thus his opinion (in the companion case of Johnson v. Louisiana) was controlling, but he was the only justice who thought that a right could be incorporated against the states but not as demanding of the states as it is of the federal government.

Prof Colb's column focuses on the benefits of unanimity and argues in favor of applying the unanimity rule in state courts as a means of reinforcing the beyond-a-reasonable-doubt standard. I highly recommend it. In the balance of this post, however, I want to talk a bit more about incorporation of the Bill of Rights.

In the last decade, the Supreme Court has twice cast doubt on the continuing vitality of Apodaca/Johnson. A footnote in Justice Alito's 2010 opinion in McDonald v. Chicago (incorporating the Second Amendment) and another in Justice Ginsburg's opinion last month in Timbs v. Indiana (incorporating the Excessive Fines Clause of the Eighth Amendment) both indicate that the general rule is jot-for-jot incorporation. In light of these opinions, it seems very likely that the Court will drop the other shoe in Ramos: It will say that Justice Powell's opinion in Apodaca/Johnson, while hitherto controlling in the lower courts, never commanded a majority of the SCOTUS and is thus not entitled to the full force of horizontal precedent; it will then find that the Fourteenth Amendment does indeed incorporate the unanimity requirement of the Sixth Amendment.

Predictions aside, it's worth taking note of an oddity. Incorporation of the Bill of Rights was mostly a mid-20th-century project. By the early 1970s, it was conventional wisdom that Hugo Black -- who favored full jot-for-jot incorporation -- had lost the battle but won the war against Felix Frankfurter -- who opposed incorporation except to the extent that a provision of the Bill of Rights happened to be fundamental to the Anglo-American system of justice. Black had lost the battle, because there were exceptions to incorporation, but he had won the war, because the exceptions were few and far between. There matters stood for the better part of four decades.

What accounts for the long dormancy of incorporation cases and their recent revival? Three data points -- McDonald, Timbs, and Ramos -- provide an admittedly small sample from which to generalize. It is possible to point to factors that make the trend look more like a coincidence. The Court did not find an individual right to own firearms in the Second Amendment until 2008, so it had no prior occasion in the modern era to consider whether the Fourteenth incorporated it. Meanwhile, Timbs may be understood as a response to a relatively recent pattern of states and localities seizing and keeping valuable property; in this view, the Court had no prior occasion to consider whether the Fourteenth Amendment incorporates the Excessive Fines Clause because until recently states were not imposing excessive fines.

Without fully discounting those explanations, I suspect that something else is also going on. After all, the Ramos grant is hard to explain as a response to some idiosyncrasy regarding unanimity. There has been no recent increase in non-unanimous state juries. On the contrary, Ramos itself will have no prospective effect in Louisiana, which has abolished non-unanimous juries, leaving Oregon as the only state that uses them, and pending state court litigation or legislation might soon end the practice there as well. The Court appears to have taken Ramos to "clean up" its incorporation jurisprudence for its own sake.

But the cleanup effort is curious. One can invoke reasons of federalism in favor of allowing states greater latitude under the Fourteenth Amendment than the court allows the federal government under the Bill of Rights. Whether one does so pursuant to the Brandeisian idea that states can serve as experimental laboratories of democracy or pursuant to a more hard-edged notion of residual state sovereignty, traditional arguments for departures from jot-for-jot incorporation give states greater latitude. One might even connect this sort of rejection of jot-for-jot to the idea of a "margin of appreciation" in international human rights law.

Meanwhile, as I explained in a Verdict column and an accompanying blog post last week (and as Prof Josh Blackman wrote in an article called Originalism at the Right Time?), the Court's self-described originalists ought to be prepared in some contexts to enforce constitutional rights more strictly against the states than the federal government in those contexts in which the meaning of a right came to be broader (and thus the meaning of its restriction on government stricter) between 1791 (when the Bill of Rights was ratified) and 1868 (when the Fourteenth Amendment was ratified). I also offered a functional justification for such a doctrine, based on Madison's logic in Federalist 10.

Yet despite plausible arguments for interpreting (some) rights differently as between the states and the federal government, the Court seems strongly committed to jot-for-jot incorporation. And to be clear, I do not oppose jot-for-jot incorporation, which strikes me as having the great virtue of simplicity. Still, given the substantial disagreements among the justices about the substance of constitutional rights, it's a little odd that there is seemingly widespread agreement that, whatever their substance, they should be the same as applied to the states and the federal government.

That oddity is explained, I think, by the fact that incorporation has been largely successful. Again, there continue to be substantial controversies over particular rights. How, if at all, do the First and Fourteenth Amendment restrict campaign finance regulation? What is the scope of the right to keep and bear arms? What limits do the Eighth and Fourteenth Amendments place on the death penalty? Etc. But these controversies somehow have little impact on the generally shared commitment to applying rights against both the federal and state governments.

Assuming that the Court in Ramos overrules Apodaca/Johnson, the remaining frontier will be those rights that the Court has not incorporated at all: the Third Amendment; the Grand Jury Clause of the Fifth Amendment; and the Seventh Amendment right to a jury in civil cases. In McDonald, Justice Alito suggested (in footnote 13) that all three could eventually be incorporated. He noted that the Court has never decided whether to incorporate the Third Amendment and that the cases that rejected incorporation of the grand jury and the civil jury "long predate the era of selective incorporation."

The Court could almost certainly incorporate the Third Amendment without causing much of a stir, because there are vanishingly few circumstances in which states would attempt to quarter troops in private homes. Any controversy would likely involve some sort of penumbral Third Amendment claim (as in question 2 of my con law exam last semester). The Court's ability to fashion properly limited doctrine would prevent any ruling from overwhelming state resources.

The same is not entirely true of the grand jury and civil jury. About half the states use grand juries to charge serious offenses. Those that do not routinely use them typically have a procedure whereby they can use grand juries. Requiring all states to use grand juries in felony cases would impose a burden on those that do not currently use them, while doing little for the benefit of defendants, given the conventional wisdom that grand juries, which receive one-sided presentations of evidence, essentially rubber-stamp prosecutions.

State courts routinely use civil juries but not in all of the circumstances in which the Seventh Amendment requires for the federal courts. Applying all of the requirements of the Seventh Amendment to state courts would add to the expense of state court litigation and in some states would place a greater burden on citizens called for jury duty.

Accordingly, there is no good policy reason for the Court to incorporate the Third Amendment, the Grand Jury Clause of the Fifth Amendment, or the Seventh Amendment, while with respect to the latter two there would be substantial costs. If the Court takes cases to do so, it would be an example of the doctrine working itself pure rather than the justices responding to any real need.