INTRODUCTION
Different Constitutional Worlds
For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, (1) pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. (2) Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. (3) To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment -- which guarantees only the right to compel the attendance of witnesses (4) -- to hold that Burr was entitled to compel production of the letter. The distinction between compelling witnesses to attend and compelling witnesses to bring papers with them, Marshall wrote, "is too much attenuated to be countenanced in the tribunals of a just and humane nation." (5) Marshall's view is widely regarded as a "sweeping construction to the compulsory process clause." (6)
Fast forward just over 180 years and imagine Justice John Paul Stevens sitting at his desk pondering the interpretation of the right to compulsory process in Taylor v. Illinois. (7) Taylor subpoenaed two witnesses who would testify to his innocence of the charge of attempted murder, but his lawyer failed to include their names on the list of defense witnesses that Illinois law required him to turn over to the prosecutor. From a list of sanctions for the lawyer's failure, the state trial judge chose the most draconian -- he forbade the witnesses from testifying. The Court held in an opinion by Stevens that the right to compulsory process, as applied to the States through the Fourteenth Amendment, did not forbid the judge from barring the testimony of witnesses that might have moved the jury to vote not guilty.
In 1807, Chief Justice Marshall interpreted the right to compulsory process broadly to protect the rights of someone charged with treason against our young republic. In 1988, Justice Stevens, one of the Rehnquist Court liberals, interpreted the right to compulsory process narrowly in a garden variety state felony case. What happened along the road between these two decisions?
One crucial cause of the change in the Court's interpretive theory is the doctrine of "incorporation." For almost all of our history, the federal government and each of the States operated independently in defining, investigating, and prosecuting crime. The Bill of Rights' limitations on government did not apply to the States, (8) which were free to protect -- or not protect -- individual liberties as they saw fit. Though all the criminal systems in this country drew from the colonial common law, the federal criminal process was doctrinally a world unto itself. It was separate from the worlds of the state processes.
Then came the Fourteenth Amendment, ratified in 1868 in response to the refusal of the Southern States to protect the rights of former slaves and Union loyalists. The Fourteenth Amendment gave the Court, for the first time, a constitutional device for reviewing state law. Its broad, vague language permitted the Court to insist that, at least in some limited circumstances, (9) the States must honor fundamental rights. The States could no longer abridge the privileges and immunities of citizens, or deny any person due process or equal protection of the laws. But no one in the Congress or in the ratifying state legislatures attempted to present a comprehensive account of privileges and immunities, due process, or equal protection. (10)
For decades, the Court sought to articulate a Fourteenth Amendment theory of fundamental rights. Benjamin Cardozo, one of the Court's leading thinkers, defined Fourteenth Amendment protections to include the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." (11) Felix Frankfurter and John Marshall Harlan II continued the effort. (12) Ultimately, however, the Court abandoned the attempt to build from scratch a comprehensive theory of the rights protected by the Fourteenth Amendment (13) and, instead, turned to the Bill of Rights for a model. By its own hand, the Court forced the world of the Fourteenth Amendment to collide with that of the Bill of Rights. Incorporation resulted.
The Court began the incorporation journey with the First Amendment, but it has now incorporated almost the entirety of the Bill of Rights into the Fourteenth Amendment. (14) Most of these rights limit the power of government to investigate and prosecute crime. Incorporation thus caused the world of federal criminal process to collide with the fifty different worlds of state criminal processes. In incorporating the criminal procedure guarantees, (15) the Court sought to provide the benefits of the broad federal protections to state criminal defendants. But the Court has never had the appetite to apply the provisions to the States as rigorously as it had applied them against the federal government.
Scholars agree that the Burger and Rehnquist Courts have limited the scope of criminal procedure guarantees (16) What remains largely hidden is the role of incorporation in the steadily diminishing scope of the criminal procedure guarantees. And this shrinking scope is not the only problem. The Court also has demonstrated a willingness to bend precedents to accomplish its goal of facilitating more effective state policing. As Donald Dripps puts it, "In the criminal procedure context, the Court rather openly decides cases with minimal respect for doctrinal constraints.... [which] has generated an unprincipled and inconsistent body of law" filled with "arbitrary distinctions." (17) No satisfactory understanding of the constitutional implications of incorporation exists because almost everyone looks at the phenomenon "postcollision," ignoring or trivializing what those very different worlds looked like before the collision. (18) The key to understanding incorporation is to look at the two doctrines before they collided. Only then do we have a proper background and framework against which to examine the world in which we find ourselves.
Return to the 1790s. The States eye the central government, to which they have just ceded much of their sovereignty, as a potential bully or, worse, as a tyrant. The States look upon the freshly minted central government as it looms above them, and it reminds them of King George III and Parliament. Evidence of this strong antigovernment attitude can be seen in the intense reaction of some of the States to the Alien and Sedition Laws, enacted in 1798. Thomas Jefferson predicted a quasi monarchy if those laws were accepted by the citizenry: "[W]e shall immediately see attempted another act of Congress, declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the Senate for life!" (19)
Eight years earlier, in 1790, many feared precisely that abuse of power. The government was but three years old, and no one knew how it might exercise its powers. Because of this fear of the distant, unknown government, the Bill of Rights is added in 1791, and the States grow more comfortable. They view the Bill of Rights as a wall between themselves and the central government. It guarantees free expression, forbids a national religion, guarantees a criminal process that is difficult to manipulate, and, in the Ninth and Tenth Amendments, specifically reserves rights and powers to the people and the States.
The potential tyrant has been hobbled. The citizens of the States are free to criticize the central government, to petition it, and to close their doors against its agents. Moreover, the prosecutors and judges of the central government can reach the citizens of States only through a rigorous process that includes the right to nonexcessive bail, to trial by juries drawn from the community, to assistance of counsel, and to confront accusers who might not be telling the truth. The Supreme Court comprehends that the Bill of Rights was meant to limit severely the powers of the central government, erecting a formidable wall between the citizens and the government. The Court interprets these provisions to require federal prosecutors to walk through a narrow gate in the wall. The gate is hedged with a series of requirements designed to make convictions more difficult to obtain. In the meantime, the States remain sovereign, free to conduct their affairs in most criminal matters as if the federal government did not exist.
Time passes. The debate over slavery and state sovereignty erupts into the Civil War, wrecking the country's peace and prosperity. Most Americans come to realize that too much state sovereignty is as hazardous as too little. Many begin to view the States, which they once thought of as responsive and protective of rights, with suspicion, particularly in their treatment of the freed slaves. The Fourteenth Amendment arrives with its explicit, though vague, limitations on state power. It takes the Court many years, but eventually it turns to the Bill of Rights to understand what rights the Fourteenth Amendment should protect from state intrusion.
Now the Bill of Rights applies to the States, through the fundamental rights lens that is the Fourteenth Amendment, and the States struggle under this projection. Litigation explodes and the fundamental rights versions of the Bill of Rights evolve through thousands of interpretations. We have been living with incorporation so long that any other system seems unthinkable. Of course the States should have to provide the same right to counsel or the same freedom of speech as the federal government, shouldn't they?
But there is one flaw in the process. Once...
