When constitutional worlds collide: Resurrecting the framers' bill of rights and criminal procedure

Michigan Law Review

Volumn 100, Issue 1, 2001, Pages 145-232

  Thomas III, George C ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042868852     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290406     Document Type: Article

References (369)

1. By leave of Congress, the Court in those days met in a small room, twenty-four feet wide and thirty feet long, located on the first floor of the Capitol. LEONARD BAKER, JOHN MARSHALL: A LIFE IN LAW 355-56 (1974).
2. 25 F. Cas. 30 (D. Va. 1807) (No. 14,692D) (Marshall, C.J., sitting as district court judge).
3. For more on the context and eventual resolution of Burr, see Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 71 (1974).
4. U.S. CONST. amend. VI.
5. 25 F. Cas. at 35.
6. Westen, supra note 3, at 101.
7. 484 U.S. 400 (1988).
8. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
9. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936) (holding that due process forbids a state conviction based on a confession coerced by physical brutality); Powell v. Alabama, 287 U.S. 45 (1932) (holding that due process requires appointment of counsel in a state capital case where the defendants were ignorant and indigent, and the trial was conducted in a frenzy of racial hatred).
10. Senator Jacob Howard stated that the Fourteenth Amendment privileges or immunities included all the rights guaranteed in the first eight Bill of Rights amendments plus certain natural law rights. Howard offered examples of the latter but no definitive account. CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).
11. Palko v. Connecticut, 302 U.S. 319, 328 (1937) (Cardozo, J., writing for eight members of the Court) (quoting Herbert v. Louisiana, 272 U.S. 312, 316 (1926)).
12. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 176 (1968) (Harlan, J., dissenting) (noting that due process includes "immutable principles . . . of free government which no member of the Union may disregard") (quoting Holden v. Hardy, 169 U.S. 366, 389 (1898)); Wolf v. Colorado, 388 U.S. 25, 27 (1949) (Frankfurter, J., writing for the Court) (due process is the "compendious expression for all those rights which the courts must enforce because they are basic to our free society" and which "may not too rhetorically be called eternal verities").
13. The reasons the Court gave up this effort are surely many and complex, and far beyond the scope of this Article. One cause worth noting is our heritage of having a written Constitution. Our federal government began with a written Constitution, and American judges have always been more reluctant than British judges, to "uncover" natural law. In Bram v. United States, 168 U.S. 532 (1897), for example, the Supreme Court engaged in an exhaustive review of the cases dealing with envoluntary confessions. Almost all of these cases were state and English cases based dealing with involuntray confessions. Almost all of these case "constitution" that has its origin in Lockean notions of natural law. When it came time to decide the case before it, however, the Bram Court was careful to note that it was interpreting the Fifth Amendment prohibition of compelling persons to be witnesses against themselves. The Court found that this Fifth Amendments provision included the common law prohibition against the use of involuntary confessions: "the generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled [in the common law] when the Amendment was adopted, and since expressed in the text writers and expounded by the adjudications. . . ." Id. at 543.
14. The exceptions are rights that might be considered exotic (the Second Amendment right to bear arms; the Third Amendment ban on quartering troops in private homes) or irrelevant to ascertaining criminal guilt (bail and grand jury indictment); the Seventh Amendment right to a civil jury; the Ninth Amendment reservation of rights to the people.
15. See Benton v. Maryland, 395 U.S. 784 (1969) (right against double jeopardy); Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to speedy trial); Washington v. Texas, 388 U.S. 14 (1967) (right to compulsory process to obtain witnesses subpoenaed by defendants); Pointer v. Texas, 380 U.S. 400 (1965) (right to confront witnesses who testify for the prosecution); Malloy v. Hogan, 378 U.S. 1 (1964) (privilege against compelled self incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel for indigent defendants charged with felonies); Robinson v. California, 370 U.S. 660 (1962) (right against cruel and unusual punishments); Mapp v. Ohio, 367 U.S. 643 (1961) (right to exclude evidence found in violation of the Fourth Amendment); In re Oliver, 333 U.S. 257 (1948) (right to public trial).
16. See, e.g., Craig Bradley, The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429 (1993); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990); Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. REV. 69 (1989); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257 (1984).
17. See, e.g., Craig Bradley, The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429 (1993); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990); Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. REV. 69 (1989); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257 (1984).
18. See, e.g., Craig Bradley, The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429 (1993); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990); Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. REV. 69 (1989); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257 (1984).
19. See, e.g., Craig Bradley, The Court's "Two Model" Approach to the Fourth Amendment: Carpe Diem!, 84 J. CRIM. L. & CRIMINOLOGY 429 (1993); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990); Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. REV. 69 (1989); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257 (1984).
20. Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: "Here I Go Down That Wrong Road Again", 74 N.C. L. REV. 1559, 1559-61 (1996).
21. Two notable exceptions are Akhil Reed Amar and Donald Dripps. See AKHIL REED AMAR, THE BILL OF RIGHTS (1998); Dripps, supra note 17. As will be clear in the balance of this Article, I think Amar gets the history mostly wrong and often draws unjustified inferences. I mostly agree with Dripps but offer a more comprehensive historical account.
22. THE VIRGINIA REPORT OF 1799-1800, at xiii (J.W. Randolph ed., 1850).
23. See supra note 15. Only one criminal procedure right was incorporated outside the decade of the 1960s. In re Oliver, 333 U.S. 257 (1948) (right to a public trial).
24. See LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS (1983) (discussing the political furor created by the requirement in Miranda v. Arizona, 384 U.S. 436 (1966) that suspects be warned of a right to remain silent); Yale Kamisar, Can (Did) Congress "Overrule" Miranda? 85 CORNELL L. REV. 883 (2000) (discussing the legal consequences of the political reaction to Miranda); George C. Thomas III, The End of the Road for Miranda v. Arizona?: On the History and Future of Rules for Police Interrogation, 37 AMER. CRIM. L. REV. 1 (2000) (discussing reaction of police and prosecutors to Miranda and speculating on impossibility of effectively regulating police interrogation practices).
25. See LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS (1983) (discussing the political furor created by the requirement in Miranda v. Arizona, 384 U.S. 436 (1966) that suspects be warned of a right to remain silent); Yale Kamisar, Can (Did) Congress "Overrule" Miranda? 85 CORNELL L. REV. 883 (2000) (discussing the legal consequences of the political reaction to Miranda); George C. Thomas III, The End of the Road for Miranda v. Arizona?: On the History and Future of Rules for Police Interrogation, 37 AMER. CRIM. L. REV. 1 (2000) (discussing reaction of police and prosecutors to Miranda and speculating on impossibility of effectively regulating police interrogation practices).
26. See supra note 15.
27. See, e.g., Williams v. Florida, 399 U.S. 78, 129 (1970) (Harlan, J., dissenting) (complaining that the majority's acceptance of a six-person jury in a state case was a "backlash" that "dilutes a federal guarantee in order to reconcile the logic of 'incorporation,' . . . with the reality of federalism").
28. A version of total incorporation was urged by Senator Howard when he reported a draft of the Fourteenth Amendment out of committee. See infra text accompanying notes 218-219. It reads all the rights created by the first eight amendments into the Fourteenth Amendment. On this view, States must provide a civil jury as guaranteed by the Seventh Amendment, must not abridge the Second Amendment right to "keep and bear arms," and must not quarter troops in homes in violation of the Third Amendment.
29. Barker v. Wingo, 407 U.S. 514 (1972).
30. One might wonder whether deference to the intent of the ratifying state legislatures dooms the modern Court's progressive doctrine on racial discrimination. The short answer is no. As I will develop in more detail throughout the Article, the legislatures knew they were ceding sovereignty in matters involving legal discrimination against the former slaves. That they did not know the details of the resulting doctrine is no ground to claim its illegitimacy. But if the States were not aware that they were accepting the Bill of Rights criminal procedure guarantees, then there are no details for later Courts to work out.
31. United States v. Fox, 3 Mont. 512 (1880).
32. Id. at 520.
33. 407 U.S. 514 (1972).
34. See, e.g., State v. Morris, 680 A.2d 90 (Vt. 1996) (rejecting Supreme Court's rule that no Fourth Amendment interest exists in garbage in opaque bag placed on curb and still on owner's property); State v. Hempele, 576 A.2d 793 (N.J. 1990) (same); State v. Boland, 800 P.2d 1112 (Wash. 1990) (same).
35. I have no full-blown account of sovereignty but do not need one to make the argument in this Article. I need an account only as it respects the right of the courts and legislatures to make and change criminal laws. Between the time English rule was thrown off and the Articles of Confederation adopted, no institution existed that could design a procedure for determining criminal guilt, or resolving civil cases for that matter, other than the courts and legislatures of each State. The States must necessarily have retained the right to develop court systems and processes to resolve cases except to the extent they ceded this sovereignty by ratifying the Constitution and its amendments. It is in this sense that I use "sovereign."
36. Thomas Davies' recent proof of this historical understanding is a little less than incontestable, but for me it is utterly convincing. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547 (1999).
37. See infra Part IV.
38. 347 U.S. 483 (1954).
39. See AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997).
40. George C. Thomas III, Remapping the Criminal Procedure Universe, 83 VA. L. REV. 1819 (1997) (reviewing AMAR, supra note 35).
41. Louis B. Schwartz, On Current Proposals to Legalize Wire Tapping, 103 U. PA. L. REV. 157, 158 (1954).
42. Id.
43. THE VIRGINIA REPORT OF 1799-1800, supra note 19, at 20 (reprinting Sedition Act of 1798) (quoting Section 2).
44. See, e.g., LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 128, 157 (1985).
45. 529 U.S. 598 (2000)
46. See Bd. of Trs. v. Garrett, 531 U.S. 356 (2001) (holding that the Eleventh Amendment bars congressional creation of money damages in Americans with Disabilities Act); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (finding that the Age Discrimination in Employment Act did not validly abrogate States' Eleventh Amendment immunity from suits by private individuals); City of Boerne v. Flores, 521 U.S. 507 (1997) (explaining that Congress lacks authority to expand judicial interpretations of constitutional rights); United States v. Lopez, 514 U.S. 549 (1995) (holding that the Gun-Free School Zones Act exceeds Congress's Commerce Clause power).
47. U.S. CONST, art. III, § 3, cl. 1.
48. U.S. CONST, art. III, § 2, cl. 2.
49. U.S. CONST, art I. § 9, cl. 2.
50. U.S. CONST, art I. § 9, cl. 3.
51. U.S. CONST, art. III, § 3, cl. 2.
52. U.S. CONST, amend. I. The right to petition, which sounds arcane to us, was in the eighteenth and early nineteenth centuries a vital part of the dialog between the citizens and the government. See Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998).
53. In the movie Double Jeopardy, for example, while the "criminal" seeking refuge in the Double Jeopardy Clause was not powerful, she and her defrocked lawyer ally certainly thought they were clever. DOUBLE JEOPARDY (Paramount Pictures 1999). They concluded that her conviction for murdering her husband, who had disappeared, gave her double jeopardy protection if she killed him after he later turned out to be alive. The screen writers were too clever by half here, asserting that a Washington state conviction provided double jeopardy protection if she killed him in New York or Louisiana. They obviously had not read, or understood, Heath v. Alabama, 474 U.S. 82 (1985).
54. Article I, section 8 grants Congress authority to punish counterfeiting, piracy, felonies on the high seas, and offenses against the law of nations. Article III, section 3 confers authority to punish treason. Treason and bribery are mentioned as grounds for impeachment in Article II, section 4, along with the much-debated "other high Crimes and Misdemeanors."
55. Compare United States v. Chadwick 433 U.S. 1 (1977) (requiring a warrant in a federal case), with California v. Acevedo, 500 U.S. 565 (1991) (requiring only probable cause in a state case).
56. 32 U.S. (7 Pet.) 243 (1833).
57. Proposed Change of the Name of the Government, N.Y. TIMES, June 30, 1866, at Al. The Times commented: "No doubt the proposition will meet with more general favor at the next session of Congress, when there will be fewer questions of greater moment to absorb the attention of the national Legislature."
58. See infra Part IV.
59. CINCINNATI COM., Oct. 26, 1866, p. 2.
60. For reasons having to do with the Court's unwillingness to overrule precedent, it has chosen to use the Due Process Clause as the principal device to review state criminal justice systems. Compare Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872) (asserting a very narrow reading of the Privileges or Immunities Clause in a civil context), with Hurtado v. California, 110 U.S. 516 (1884) (considering, but rejecting, the later claim that the lack of a grand jury indictment would violate the Due Process Clause).
61. See, e.g., Palko v. Connecticut, 302 U.S. 319, 328 (1937) (Cardozo, J., writing for eight members of the Court) (due process includes the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (quoting Herbert v. Louisiana, 272 U.S. 312, 316 (1926))).
62. Duncan v. Louisiana, 391 U.S. 145, 168 (1968) (Black, J., concurring).
63. See Benton v. Maryland, 395 U.S. 784, 795 (1969).
64. 407 U.S. 514 (1972).
65. Justice Thomas noted this anomaly in his dissent in Doggett v. United States, 505 U.S. 647 (1992). Because Doggett was a federal case, Thomas is right to claim that prejudice to the case should have been irrelevant. The government's real problem in Doggett was that the delay between indictment and trial stretched past eight years, and that is difficult to square with any common-sense meaning of "speedy."
66. See infra Part IV.
67. 116 U.S. 616 (1886).
68. Id. at 630.
69. Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555 (1996).
70. Weeks v. United States, 232 U.S. 383 (1914).
71. 255 U.S. 298 (1921).
72. Id. at 303-04.
73. Fourth Amendment privacy could be relinquished by its possessor through consent. See Amos v. United States, 255 U.S. 313, 317 (1921) (dicta). Moreover, it did not extend to all property. It did not, for example, protect "open fields." See Hester v. United States, 265 U.S. 57 (1924).
74. 338 U.S. 25 (1949).
75. Id. at 27-28.
76. Mapp v. Ohio, 367 U.S. 643 (1961).
77. 342 U.S. 165 (1952).
78. Warden v. Hayden, 387 U.S. 294, 306 (1967). Only Justice Douglas dissented.
79. For an intriguing view that Boyd represents an admirable blend of formalism and pragmatism, see Cloud, supra note 65.
80. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting).
81. The Court went back and forth on the permissible scope of searches incident to arrest. For a good discussion of the Court's vacillating attitude toward this exception, see Chimel v. California, 395 U.S. 752 (1969).
82. See Carroll v. United States, 267 U.S. 132 (1925).
83. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1473 nn.23-44 (1985) (mentioning twenty-two exceptions): California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring) (adding two exceptions). Of the twenty-four exceptions, eighteen were announced in cases coming to the Court from state courts.
84. Motes v. United States, 178 U.S. 458 (1900).
85. Id. at 472 (quoting THOMAS M. COOLEY, TREATISE ON CONSTITUTIONAL LIMITATIONS *318).
86. White v. Illinois, 502 U.S. 346 (1992).
87. Dutton v. Evans, 400 U.S. 74 (1970) (plurality opinion).
88. 170 U.S. 343 (1898).
89. 281 U.S. 276 (1930).
90. Id. at 292.
91. Id. at 312.
92. Id. (emphasis added).
93. The Court held that the Seventh Amendment requires unanimous verdicts in federal civil cases. Springville v. Thomas, 166 U.S. 707 (1897). It follows from that holding that unanimous verdicts are required in federal criminal cases, but the issue has never been joined because the Federal Rules of Criminal Procedure have always required a unanimous verdict.
94. 399 U.S. 78 (1970).
95. 395 U.S. 784 (1969).
96. Id. at 795 (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)) (emphasis added).
97. Williams, 399 U.S. at 103.
98. Id. at 100.
99. Id. at 98, 100.
100. Id. at 106-07 (quoting Malloy v. Hogan, 378 U.S. 1, 10-11 (1964)). Justice Black may be right. Lowering the federal jury standard from twelve to six may not be watering down. It seems more like drowning in a flood.
101. Id. at 107.
102. Note for example, the Court's expansive construction of the rights to search under the Prohibition Act, and the language supporting the Act, in Carroll v. United States, 267 U.S. 132 (1925).
103. 15 U.S.C §§ 1192, 1196 (1994); 16 C.F.R. §§ 1632.31(b)(1), 132.31(b)(5) (1997); see Stuart P. Green Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1610 & n.264 (1997).
104. 15 U.S.C §§ 1192, 1196 (1994); 16 C.F.R. §§ 1632.31(b)(1), 132.31(b)(5) (1997); see Stuart P. Green Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1610 & n.264 (1997).
105. The charactenzation is Liva Baker's. LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 244 (1983).
106. Id. at 243.
107. 407 U.S. at 516.
108. Doggen v. United States, 505 U.S. 647 (1992). The delay in this case was eight years, but I don't see much difference in terms of "speedy" between a delay of five and one-half years and a delay of eight years.
109. Of course, Richard Nixon became President in 1969 and began to appoint lawyers with a more conservative philosophy to the Court, but I beheve the Court was inevitably going to retreat from the expansive federal model as it faced the consequences of applying those doctrines to state criminal cases.
110. THE DECLARATION OF INDEPENDENCE para. 21 (U.S. 1776).
111. See Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968) (noting that waivers of jury trials are acceptable and that States can refuse to provide jury trials for petty offenses).
112. U.S. CONST., art. III, § 2, cl. 3.
113. NEIL H. COGAN, THE COMPLETE BILL OF RIGHTS 415 (1997) (quoting VIRGINIA GAZETTE, Dec. 22, 1787). Cogan's work is a genuine treasure. It includes many sources beyond the congressional debates on the Bill of Rights, including the debates in the state legislatures that proposed amendments to the Constitution and selections from pamphlets, newspapers, letters, and other sources that are difficult to locate. Cogan checked original sources in all cases, restoring the original spelling, capitalization, and use of italics that in some cases over the years had been modernized. Because of the quality of Cogan's work, I did not check original sources in most cases and simply cite to Cogan.
114. Id. at 414.
115. W. at 439.
116. See 4 WILLIAM BLACKSTONE, COMMENTARIES *359-60.
117. COGAN, supra note 108, at 438.
118. Id. at 465; see also id. at 472 (Martin argued that the same reason influenced the Federalists to provide an inadequate jury trial right as influenced them to create inferior federal courts: "they could not trust State judges, so they would not confide in State juries.").
119. Id. at 465.
120. Id. at 426.
121. Id. at 428.
122. Id. at 436.
123. Id. at 465.
124. Id. at 466.
125. Id. at 438, 436 (Patrick Henry).
126. Id. at 426 (Iredell).
127. Id. at 465 ("Philadelphiensis").
128. Id. at 450 ("Cincinnatus").
129. Id. at 468 ("Brutus").
130. Id. at 463 ("Philadelphiensis").
131. Id. at 422 (Tredwell).
132. Id. at 438.
133. U.S. CONST, amend. XIV, § 1.
134. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949).
135. William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954).
136. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE (1986); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643 (2000); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051 (2000). Newsom goes so far as to claim that the Framers of the Fourteenth Amendment "clearly said" that it would incorporate the Bill of Rights. For my skeptical view of that claim, see the balance of this Part.
137. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE (1986); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643 (2000); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051 (2000). Newsom goes so far as to claim that the Framers of the Fourteenth Amendment "clearly said" that it would incorporate the Bill of Rights. For my skeptical view of that claim, see the balance of this Part.
138. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE (1986); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643 (2000); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051 (2000). Newsom goes so far as to claim that the Framers of the Fourteenth Amendment "clearly said" that it would incorporate the Bill of Rights. For my skeptical view of that claim, see the balance of this Part.
139. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE (1986); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643 (2000); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051 (2000). Newsom goes so far as to claim that the Framers of the Fourteenth Amendment "clearly said" that it would incorporate the Bill of Rights. For my skeptical view of that claim, see the balance of this Part.
140. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
141. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
142. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
143. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
144. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
145. JAMES E. BOND, NO EASY WALK TO FREEDOM (1997); JOSEPH B. JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT (1984) [hereinafter JAMES, RATIFICATION]; JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956) [hereinafter JAMES, FRAMING]; EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS 1863-1869 (1990); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT, FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE MOUNTAIN (1997).
146. AMAR, supra note 18, at 215-94; see also Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992).
147. NELSON, supra note 132, at 117-23.
148. See infra text accompanying notes 218-219.
149. The meaning of Section 1 would not have to be limited to the Bill of Rights guarantees of course Senator Howard in his message when introducing the amendment to the Senate clearly stated that it also included fundamental rights that were not protected by the Bill of Rights, such as the right to own property. See infra text accompanying notes 239-243.
150. For an example of how this process "works" along with a stinging critique from Justice Harlan, see Duncan v. Louisiana, 391 U.S. 145 (1968).
151. Id. at 181 (Harlan, J., dissenting).
152. Wildenthal, who supports total incorporation, agrees that selective incorporation is an "uneasy compromise" that is "awkward and textually untenable." Wildenthal, supra note 131, at 1055.
153. In Nelson's theory of remedial incorporation, particular rights are enforced only against States that fail to provide that right equally to all citizens. But if the States knew this was the meaning of Section 1, they at least knew how much sovereignty they were surrendering - they were giving up the right to provide fundamental rights unequally.
154. JOINT COMM ON PRINTING, 100TH CONG., BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS, 1774-1989, S. Doc. No. 100-34, at 179-82 (1989). Although there were ultimately more than 240 members of the 39th Congress, the number at the time of the drafting and debates on section 1 of the Fourteenth Amendment was somewhat smaller, due in part to the fact that the contingent representing Tennessee was not seated until July 24, 1866, Id.
155. Amar claims that four members of Congress favored incorporation. To bring Representative James Wilson into the fold, Amar uses a speech Wilson gave two years before the drafting of the Fourteenth Amendment in which he claims that the First Amendment already limited State power, a reading that ignores Barron. Amar, supra note 133, at 1236 That is pretty thin evidence. To bring Representative Thaddeus Stevens into the fold. Amar relies on even shakier evidence. He reads Stevens's comment about "our DECLARATION or organic law" to be a possible misprint. Stevens might have said "of organic law," which, Amar asserts, would be a reference to the Constitution and Bill of Rights. Id. After all Stevens noted that the Constitution did not apply to the States and that this "amendment supplies that defect." But Amar fails to quote the rest of the Stevens' sentence: "amendment supplies that defect and allows Congress to correct the unjust legislation of the States so far that the law which operates upon one man shall operate equally upon all." CONG. GLOBE, 39th Cong. 1st Sess. 2459 (1866) (emphasis in original). Stevens then goes on to give several examples of how unjust laws would be corrected by ensuring that the law be applied equally to black and white. This is not incorporation that Stevens urges. It is, instead, the equality interpretation of Section 1.
156. See CONG. GLOBE, 39th Cong., 1st Sess. 1090-91 (1866).
157. See Hurtado v. California, 110 U.S. 516 (1884) (rejecting the claim that the grand jury requirement was included in the Fourteenth Amendment).
158. Curtis offers one example of an editorial endorsement of incorporation - The Dubuque Daily Times, November 21, 1866. CURTIS, supra note 131, at 132. But the reference to "privileges rightly conferred on every citizen by the federal constitution" could be clearer. Indeed two sentences earlier the editorial had spoken of the "privileges and protections of law . . . which nature gives."
159. N.Y. TIMES, May 24, 1866, at 1.
160. No report of any Times editorial stand on incorporation appears in the books listed in note 132.
161. James canvasses newspaper response in the South during the ratification process, JAMES, RATIFICATION, supra note 132, at 80-155, and makes no mention of incorporation as a theory for interpreting Section 1.
162. See supra note 131.
163. AMAR, supra note 18, at 220-23.
164. JAMES, RATIFICATION, supra note 132, at 162 (quoting CINCINNATI COM., Jan. 3, 1867).
165. NELSON, supra note 132, at 117-23. Though the idea is Nelson's, most of the defense of it that follows is mine.
166. I suspect this is because Nelson's book is about much more than just the best reading of Section 1. Indeed, he offers his insight on incorporation in a short discussion buried deep within the book and does little to defend the theory. See id. at 117-23. Moreover, as a serious historian, Nelson offers his theory as a way of "resolv[ing] the contradiction in the evidence" rather than as a new historical discovery or an obvious plain meaning that others have missed. Id. at 118. Indeed, he ultimately concludes that the historical evidence is simply inadequate to know whether those who framed and ratified the Fourteenth Amendment intended it to create substantive rights or simply to ensure equality in distribution of preexisting rights. Id. at 123.
167. CONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866).
168. Id. The reference to Oregon was to a state constitution adopted in 1857 that forbade blacks from "making contracts, holding property, or even entering the state." MALTZ, supra note 132, at 22.
169. CONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866).
170. Id.
171. Id. at 1091.
172. That Congress had the power to enforce the Bill of Rights against miscreant States would not foreclose an appeal to the federal courts by citizens in States that were refusing to provide fundamental rights equally.
173. See NELSON, supra note 132, at 118 (noting that the States in 1866 provided by state law most of the rights contained in the Bill of Rights).
174. Wat 121.
175. MALTZ, supra note 132, at 94.
176. NELSON, supra note 132, at 121.
177. Id John Harrison offers a similar account. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992).
178. NELSON, supra note 132, at 121.
179. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (quoting Corfield v. Coryell, 6 F. Cas. 546 (E.D. Pa. Pa. 1823) (No 3,230)). Remedial incorporation is only one mechanism for infusing Section 1 with meaning. As Howard pointed out in his remarks, "privileges or immunities" had a natural law meaning as well as a meaning drawn from the Bill of Rights. Thus, quoting Justice Bushrod Washington, Howard suggested that the right to sue; to buy, own, and sell property; and to the writ of habeas corpus were included in the meaning of "privileges or immunities."
180. NELSON, supra note 132, at 118.
181. See infra notes 218-219 and accompanying text.
182. See infra notes 205-208 and accompanying text.
183. Many speakers also expressed concern about the treatment of Union loyalists who returned to, or remained in, the South. In the text that follows. I will generally refer only to the discrimination against former slaves, because that was the overarching concern, but the reader should be aware that white Union loyalists were also intended beneficiaries of the Fourteenth Amendment.
184. By contrast, the modern Court finds very little work for privileges or immunities. See Saenz v. Roe, 526 U.S. 489 (1999).
185. See Strauder v. West Virginia, 100 U.S. 303 (1879) (finding unconstitutional under the Fourteenth Amendment state law excluding blacks from serving on grand and petit juries). One argument against the equality view of privileges or immunities is that it duplicates the guarantee of "equal protection of the laws." But equal protection of the laws might apply only to the application of existing laws and not to their substantive content. On this view, a state law that permits whites, but not blacks, to own property would violate the Privileges or Immunities Clause and not, as courts would say today, the Equal Protection Clause. The latter clause would be violated if a judge took a race-neutral law and applied it unevenly (if judges, for example, routinely granted counsel to indigent whites but not to indigent blacks). Thus, it is possible that the Framers and ratifiers of the Fourteenth Amendment meant the Equal Protection Clause to forbid unequal judicial application of existing laws, while the Privileges or Immunities Clause limits the legislative and executive branches in their ability to "make or enforce" laws creating fundamental privileges or immunities that discriminate on account of race.
186. In a series of cases decided within twenty years or so of Strauder, id., the Court recognized this understanding of the Fourteenth Amendment, but the Court did not find a case that proved the requisite intent until 1986 when it changed the standard by which the intent must be proved. Batson v. Kentucky, 476 U.S. 79 (1986).
187. In Ex parte Virginia, 100 U.S. 339 (1880), a companion case to Strauder, 100 U.S. 303, the Court held that the Fourteenth Amendment prohibited state judges from striking blacks from a jury on account of their race.
188. For an excellent account of the early cases, see NELSON, supra note 132, at 148-96.
189. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). Both Newsom and Wildenthal have recently reinterpreted Slaughter-House to be consistent with the theory that the Fourteenth Amendment incorporated the Bill, of Rights guarantees, though not the "privilege" of practicing the profession of being a butcher. See Newsom, supra note 131 Wildenthal, supra note 131. While a provocative, clever argument, it is beside the point for my project. The narrow holding of Slaughter-House sheds no meaning on the incorporation of specific provisions from the Bill of Rights given the Court's later holdings that the Fourteenth Amendment did not include the privilege against compelled self-incrimination, the right to trial by jury, or the right to a grand jury indictment (to list only criminal procedure provisons). See Twining v. New Jersey, 211 U.S. 78 (1908); Maxwell v. Dow, 176 U.S. 581, 601 (1900); Hurtado v. California, 110 U.S. 516 (1884). The relevance of early cases is to illuminate the contemporary understanding of the Fourteenth Amendment to help show that Twining, Maxwell, and Hurtado (among others) were incorrectly decided. Finding a narrow holding hidden amongst the analysis, however, does little to tell us what lawyers and judges of the time understood. If it was so clear, why not state it? Indeed, Wildenthal cites two cases, from the same year and same lower federal court, that do exactly that. In United States v. Hall, 26 F. Cas. 79, 82 (S.D. Ala. 1871), the court clearly stated that the first eight amendments are "privileges and immunities of citizens of the United States." See also United States v. Mall, 26 F. Cas. 1147 (S.D. Ala. 1871) (limited to rights of assembly and free speech). The existence of dozens of cases like these from different courts would be evidence ot a contemporary understanding favoring incorporation. But two cases from the same court in the same year is hardly overwhelming.
190. 100 U.S. 303 (1879).
191. Id. at 307-08.
192. See supra note 132.
193. CURTIS, supra note 131, at 13.
194. JAMES, FRAMING, supra note 132, at 21.
195. CONG. GLOBE, 39th Cong., 1st Sess. 2459 (1866).
196. Id. at 2798 (decrying Section 2 as "barter[ing] away human rights").
197. These States were Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. See KIRK H. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES 148-49, 166 (1918).
198. CONG. GLOBE, 39th Cong., 1st Sess. app. 305 (1866).
199. Id. at 2544 (Stevens) ("Gentleman tell us it is too strong - too strong for what? Too strong for their stomachs, but not for the people. Some say it is too lenient. It is too lenient for my hard heart. Not only to 1870, but to 18070,every rebel who shed the blood of loyal men should be prevented from exercising any power in this Government. That, even, would be too mild a punishment for them."); see also id. at 2536 (Eckley) ("Reject the amendment disenfranchising rebels and you must widen the asylum in the North for those southern people who have sympathy with the Government.").
200. JAMES, RATIFICATION, supra note 132, at 100-01.
201. Id. at 176 (paraphrasing the Maryland Senate Journal).
202. Id. at 111 (quoting the Florida House Journal).
203. JAMES, FRAMING, supra note 132, at 48.
204. Id. at 94 (Georgia); id. at 111 (Florida).
205. Id. at 111 (Florida): id. at 113 (Arkansas).
206. Id. at 110-11 (quoting the Florida Senate Journal).
207. BENJ. B. KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 37 (Faculty of Political Sci. of Columbia Univ. ed., 1914); see also JAMES, FRAMING, supra note 132, at 39.
208. JOINT COMM. ON RECONSTRUCTION, 39TH CONG., REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION at XIII (1st Sess. 1866).
209. SNEED, supra note 132, at 49-83.
210. JAMES, FRAMING, supra note 132. at 145 (quoting CINCINNATI COM., June 7, 1866).
211. CONG. GLOBE. 39th Cong.,. 1st Sess. 3034 (1866).
212. SNEED, supra note 132, at 57.
213. CONG. GLOBE, 39th Cong., 1st Sess. app. 1838 (1866) (commenting on the need for the Civil Rights Bill).
214. Id. at 2082.
215. CONG. GLOBE, 39th Cong., 1st Sess. app. 155 (1866).
216. Id. at 3170.
217. Id. at 1838 (quoted by Sidney Clarke).
218. Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.
219. JAMES, FRAMING, supra note 132, at 89-90.
220. Id. at 97-99.
221. SNEED, supra note 132, at 173-81.
222. See infra notes 250-259 and accompanying text.
223. CONG. GLOBE, 39th Cong., 1st Sess. 2502 (1866).
224. Id. at 3169.
225. Id. at 3035.
226. Id. at 2459.
227. See Crosskey, supra note 130, at 33.
228. In Curtis's fascinating account of speeches, newspaper accounts, and reports from the election of 1866, covering fifteen pages, there is a single reference to problems in the criminal systems and dozens of references to deprivation of First Amendment freedoms. CURTIS, supra note 131, at 131-145.
229. CONG. GLOBE, 39th Cong., 1st Sess. 1066 (1866). The remarks referenced the time before slavery was abolished, but the speaker makes clear that nothing had changed in regard to free speech in the South.
230. CURTIS, supra note 131, at 138.
231. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866).
232. Id. at 2766.
233. My proposed language is a rejoinder to Curtis, who argues that the drafters made no specific mention of the Bill of Rights because they wanted to protect a more inclusive set of liberties CURTIS, supra note 131, at 125. My language does both. Amar argues that the language of the Amendment is "exactly what one would expect if incorporation were a goal of the Fourteenth Amendment." Amar, supra note 133, at 1220. But Dripps gets the better of Amar here, asserting that it would be equally fair to say that the text is exactly what one would expect if protecting sexual privacy, or freedom of contract, or the right to grow marijuana were a goal of the Fourteenth Amendment. To say that the text is consistent with incorporation is uninteresting, because the text is consistent with almost anything. Dripps, supra note 17, at 1576. My proposed language in the text is, instead, "exactly what one would expect if incorporation were a goal of the Fourteenth Amendment."
234. In response to Senator Howard's attempt to explain why he used "abridge" in connection with "privileges or immunities," Senator Hendricks said "I have not heard any Senator accurately define, what are the rights and immunities of citizenship; and I do not know that any statesman has very accurately defined them." CONG. GLOBE, 39th Cong., 1st Sess. 3039 (1866). No one responded to the challenge. One speaker later, Senator Johnson said that the "privileges or immunities" clause was objectionable "simply because I do not understand what will be the effect of that." Id. at 3041. No one responded. In addition, Senator Yates complained about "tortuous and hard-to-be-understood propositions," presumably in reference to Section 1. Id. at 3037.
235. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1088 (1866) (Woodbridge); id. at 1095 (Hotchiciss); id. at 2510 (Miller); id. at 2890 (Howard); id. at 2890-91 (Cowan); id. at 2892 (Doolittle); id. at 2893 (Fessenden); id. (Trumbull); id. (Johnson); id. (Wade); id. at 2894 (Van Winkle); id. at 2895 (Hendricks); id. (Clarke); id. (Clarke); id. at 2986 (Fessenden, Howard, Doolittle, Grimes); id. at 2897 (Williams, Saulsbury).
236. The reference is to a Sherlock Holmes story in which Holmes solved the mystery by noting that the dog didn't bark when he should have (and thus knew the person who com-mitted the crime). A. CONAN DOYLE, Silver Blaze, in THE COMPLETE SHERLOCK HOLMES 383, 400 (1938).
237. Amar, supra note 133, at 1238.
238. JAMES, FRAMING, supra note 132, at 135 (quoting THE N.Y. HERALD, May 24, 1866). James' citation is to the May 21, 1866, edition of the Herald, but this must be a misprint as Howard's speech did not occur until May 23.
239. 9 DICTIONARY OF AMERICAN BIOGRAPHY 278 (Dumas Malone, ed. 1932).
240. JAMES, FRAMING, supra note 132, at 135 (citing THE N.Y. HERALD, May 24, 1866).
241. DICTIONARY OF AMERICAN BIOGRAPHY, supra note 226, at 278.
242. Some of the newspapers, however, were paying attention. The part of Howard's speech discussing privileges and immunities was quoted verbatim on the front page of the next day's New York Times. N.Y. TIMES, May 24, 1866, at 1.
243. JAMES, FRAMING, supra note 132, at 135.
244. Id. at 45.
245. KENDRICK, supra note 194, at 90-91.
246. Id. at 98.
247. Id. at 106.
248. Id.
249. MALTZ, supra note 132, at 91-92.
250. See, e.g., SNEED, supra note 132, at 330-31 (quoting Stevens); id. at 350 (quoting Eliot); id. at 350 (noting that Miller "linked the spirit of Section 1 to the Declaration of Independence.")
251. CONG. GLOBE, 39th Cong., 1st Sess. app. 134 (1866).
252. Id. at 2961.
253. Id. at app. 219.
254. Id. at 3034-35 (Henderson).
255. Id. at 2538 (Rogers).
256. JAMES, FRAMING, supra note 132, at 76.
257. See MALTZ, supra note 132, at 79.
258. CURTIS, supra note 131, at 135-36.
259. CONG. GLOBE, 39th Cong., 1st Sess. 2082 (1866).
260. See supra notes 31-34 and accompanying text.
261. There is a bit of evidence relating to free speech. See, e.g., JAMES, supra note 132, at 162. Of course, that evidence is also consistent with Nelson's remedial incorporation theory.
262. BOND, supra note 132, at 10.
263. Id. at 57.
264. Id. at 56.
265. Id. at 75.
266. Id. at 80-81.
267. Id. at 106.
268. Id. at 148 (emphasis added).
269. Id. at 234.
270. Id. at 44.
271. Id.
272. Id. at 21.
273. CURTIS, supra note 131, at 146.
274. See supra text accompanying note 151.
275. CURTIS, supra note 131, at 148; see also id. at 148-49 (quoting Representative M'Camant, also of Pennsylvania).
276. BOND, supra note 132, at 45.
277. Id.
278. Id. at 255.
279. Id.
280. Id. at 256-57.
281. CINCINNATI COM., October 26,1866, at 2.
282. Id.
283. MALTZ, supra note 132, at 117.
284. AMAR, supra note 18, at 198.
285. Maltz claims that a concern with conflicting state grand jury procedures would have been lost in Congress amidst the larger Reconstruction concerns. MALTZ, supra note 132, at 116-17. That seems rigth. But it is less clear to me that the State would have found the prospect of being forced into the federal model of criminal procedure a trivial prospect.
286. CURTIS, supra note 131, at 105.
287. Amar, supra note 133, at 1250.
288. Id.
289. CURTlS, supra note 131, at 217.
290. NELSON, supra note 132, at 118.
291. 74 U.S. (7 Wall.) 321 (1869).
292. Amar, supra note 133, at 1255.
293. Dripps presents a more detailed rebuttal. Dripps, supra note 17, at 1579-82.
294. Chief Justice Salmon P. Chase took the oath on December 15, 1864, and the next new Justice, Justice William Strong, did not take his oath until March 14, 1870.
295. Most major newspapers carried a "Washington News" kind of summary of the congressional debates on the Fourteenth Amendment as well as other subjects. See, e.g., N.Y. TIMES, June 30, 1866.
296. Three years later, the Court rejected the idea that the Fourteenth Amendment protected the right of butchers to carry on their trade free of legislative limitations on what slaughter-houses they could use. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). Though the vote was five to four, only one opinion (Justice Bradley's dissent) clearly raises incorporation as a theory of interpretation for the Fourteenth Amendment. Though Slaughter-House Cases has generated an enormous literature, it seems beside the point to me if limited to its narrow holding. Whatever the best approach to the right to carry on a trade, it tells us nothing about whether the specific Bill of Rights guarantees were incorporated.
297. CHARLES WALLACE COLLINS, THE FOURTEENTH AMENDMENT AND THE STATES at vii, 38 (1912).
298. Id. at 31-33 (footnotes omitted).
299. Id. at 81.
300. Id. at 83 (eight of the twenty-one involved the Commerce Clause).
301. Id. at 84-108.
302. Strauder v. West Virginia, 100 U.S. 303 (1879).
303. COLLINS, supra note 284, at 84-108.
304. These cases are summarized, along with a few others involving racial discrimination, in COLLINS, supra note 284, at 48-62.
305. 110 U.S. 516 (1884).
306. 211 U.S. 78 (1908).
307. In re Kemmler, 136 U.S. 436 (1890).
308. Maxwell v. Dow, 176 U.S. 581 (1900).
309. Barrington v. Missouri, 205 U.S. 483 (1907).
310. Kemmler, 136 U.S. at 448.
311. 176 U.S. 581 (1900).
312. Id. at 604.
313. COLLINS, supra note 284, at 31-33.
314. See Fox v. Cincinnati, 104 U.S. 783 (1881) (denying that Fifth Amendment just compensation in eminent domain cases is a privilege or immunity); McMillen v. Anderson, 95 U.S. 37 (1877) (denying that state tax assessment system violated due process); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (denying that female suffrage is a privilege or immunity); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872) (denying that the practice of law is a privilege or immunity that would entitle women to be admitted to practice).
315. COLLINS, supra note 284, at 65.
316. See supra note 15.
317. 92 U.S. 90 (1875).
318. 116 U.S. 252 (1886).
319. 372 U.S. 335 (1963).
320. 316 U.S. 455 (1942).
321. 176 U.S. 581 (1900).
322. 391 U.S. 145 (1968).
323. 399 U.S. 78 (1970).
324. 170 US 343 (1898).
325. 281 U.S. 276 (1930).
326. Johnson v. Louisiana, 406 U.S. 356, 367-77 (1972) (Powell, J., concurring).
327. FED, R. CRIM. P. 23, 31.
328. 378 U.S. 1 (1964).
329. 367 U.S. 643 (1961).
330. California v. Greenwood, 486 U.S. 35 (1988).
331. Smith v. Maryland, 442 U.S. 735 (1979).
332. California v. Ciraolo, 476 U.S. 207 (1986).
333. United States v. Watson, 423 U.S. 411 (1976).
334. Illinois v. Wardlow, 528 U.S. 119 (2000).
335. 116 U.S. at 630.
336. 482 U.S. 691, 713-14 (1987).
337. Id.
338. See e.g., United States v. Place, 462 U.S. 696 (1983) (announcing that a dog sniff is not a Fourth Amendment search) (dicta); United States v. White, 401 U.S. 745 (1971) (purality) (Fourth Amendment not implicated when an agent hears words of narcotics dealer from radio transmitter on government informant); Hoffa v. United States 385 U.S. 293 (1966) (Fourth Amendment permits use of evidence provided by government informant who was posing as a colleague of Jimmy Hoffa's). The current war on drugs and the intensified effort to give law enforcement tools with which to attack organized crime both occurred after the Fourth Amendment had been incorporated into the Fourteenth, and the distorting mirror of the Fourteenth Amendment makes the Court see the criminal procedure protections in a more narrow light whether the issue arises in state or federal court.
339. California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the judgment).
340. Even the effort to control organized crime would not, I think, be significantly affected by a meaningful warrant requirement because most of those investigations involve careful planning and cover long periods of time. If the war on drugs is the only federal criminal enterprise that is inconsistent with an historically indicated robust warrant requirement, perhaps this suggests rethinking the role of the federal government in creating and policing drug crimes. Only time will tell whether the war on terrorism will significantly erode Fourth Amendment protections and, if so, whether the erosion is justified by lives saved.
341. 399 U.S. 42 (1470).
342. 433 U.S. 1 (1977).
343. Acevedo, 500 U.S. 565.
344. Compare United States v. Mendenhall, 446 U.S. 544 (1980) (upholding, without a majority opinion, a search based on consent when the federal agents told the suspect "that she had the right to decline the search if she desired"), with Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (refusing in a state case to require officers to warn the suspect that he has a right to refuse consent).
345. Katz v. United States, 389 U.S. 347 (1967).
346. Rakas v. Illinois, 439 U.S. 128 (1978).
347. Rawlings v. Kentucky, 448 U.S. 98 (1980).
348. Smith v. Maryland, 442 U.S. 735 (1979).
349. 486 U.S. 35 (1988).
350. Id. at 40.
351. See, e.g., State v. Morris, 680 A.2d 90 (Vt. 19%); State v. Hempele, 576 A.2d 793 (N.J. 1990); State v. Boland, 800 P.2d 1112 (Wash. 1990).
352. 497 U.S. 836 (1990).
353. Id. at 854 (quoting Wildermuth v. State, 530 A.2d 275, 286 (Md. 1987)).
354. One could argue that the passive voice of the guarantee ("to be confronted with") suggests only that the defendant see and hear the testimony. That was accomplished in Craig by means of closed-circuit television. But it strains credulity to think that the Framers meant, by use of a passive verb, to permit the defendant to be in a different room from the witness. The weakness of this argument is confirmed by the majority's failure even to mention it.
355. 497 U.S. at 870 (Scalia, J., dissenting).
356. See, e.g., White v. Illinois, 502 U.S. 346 (1992). As White is a state case, the equation of "firmly rooted" hearsay exceptions and due process makes good sense.
357. 407 U.S. 514 (1972).
358. Doggett v. United States, 505 U.S. 647 (1992).
359. 18 U.S.C. §§ 3161-3174 (2000).
360. 505 U.S. 647 (1992).
361. These are the facts that the Court accepts, though the failure of Doggetfs mother, with whom he was living when indicted, to tell her son that federal marshals had come looking for him with a warrant has always seemed a bit suspect to me. To be sure, he had by that time left to go to Colombia; perhaps he and his mother had had a parting of the ways. That Doggett had no notice of the indictment explains why the Speedy Trial Act did not protect him. See 18 U.S.C. § 3161 (b) (2000) (computing time period from arrest or service of summons).
362. 466 U.S. 668 (1984).
363. Id. at 694.
364. I assume in the text that a lawyer who performs unreasonably, and thus fails the first part of the Strickland test, is not providing assistance of counsel. While that is a contestable assumption, it is more likely as an interpretation of the Sixth Amendment than the Due Process Clause.
365. One way to divide the right to counsel doctrine between state and federal systems is to permit federal defendants to prove a Sixth Amendment violation if either the representation was unreasonable or the outcome potentially inaccurate, while state defendants could show a Fourteenth Amendment violation only if they show a potentially inaccurate outcome.
366. See United States v. Gaudin, 28 F.3d 943, 959-61 (9th Cir. 1994) (Kozinski, J., dissenting).
367. The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (2000). usually provides far stricter time limits than the Court has discovered in the Sixth Amendment right to a speedy trial, but I deal in this Article with the constitutional question. Congress could, after all, abolish the Speedy Trial Act.
368. At least one could so expect if drug crimes are taken out of the federal mix.
369. Maxwell v. Dow, 176 U.S. 581, 601 (1900).