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Friday, November 30, 2018

Incorporation and Government Structure

Inspired by this week's SCOTUS oral argument in Timbs v. Indiana, my colleague (and partner in crime) Andy Hessick and one of our talented UNC students, Elizabeth Fisher, wrote the following about incorporation.  I tend to think that they are wrong--especially about the jury trial right--but I'm having a hard time articulating precisely why.  They are looking for input (and I'm looking for help with counterarguments for the dinner table) so I'm posting it here for folks to weigh in with comments.

Earlier this week the Court heard argument in Timbs v. Indiana, which asks whether the Fourteenth Amendment incorporates the Excessive Fines Clause against the states.  Questions for oral argument put the smart money on the Court saying it is incorporated.  If that’s right, then all of the first 8 amendments will be incorporated except for three provisions: the Third Amendment, the right to a jury in civil proceedings, and the right to a grand jury. The reason the Third Amendment is not incorporated is that the Court has never had the opportunity to consider the issue. Third Amendment claims are rare. But the non-incorporation of the other two provisions is harder to explain.

The extent to which the Fourteenth Amendment incorporates rights against the states has been a longstanding question. The text of the Fourteenth Amendment is vague, and the history surrounding its ratification is ambiguous.  Over the years, justices have floated various theories of incorporation.  Some have pressed for total incorporation; others argued for a fundamental-fairness test.  Today, the prevailing doctrine is the so-called “selective incorporation” test under which a right is incorporated if is fundamental or deeply rooted in our nation’s history. This test does not derive from either the text or the history of the Amendment.  Instead, it rests on the two principles of protecting individual rights while trying to avoid unduly constraining the states.

Under this selective incorporation test, incorporating the Excessive Fines Clause seems like a no-brainer. Prohibiting excessive fines is just as fundamental or deeply rooted as many of the other rights the Court has incorporated.  But it is hard to see why the grand jury and civil jury clauses are not incorporated under this test.  They are not obviously less fundamental or deeply rooted in our nation’s history than other guarantees in the Bill of Rights.  The inclusion of those rights in the Bill of Rights alone strongly suggests their importance. But the Court has repeatedly said that those rights are not incorporated, including in the 1970s after the Court started its modern wave of incorporation.

Questions from some of the justices in the Timbs argument suggest that they are prepared to incorporate all of the guarantees in the first 8 amendments based on a total incorporation theory.  But there are reasons not to incorporate the jury rights.  One reason—a reason we are developing in a new paper—is that incorporating these rights would more significantly interfere with the states’ sovereignty than the incorporation of other rights. Most rights impose substantive restrictions. For example, the First Amendment limits the government’s ability to regulate speech.  Other rights require the government to follow particular procedures.  For example, the Due Process Clause requires the government to afford process before depriving individuals of life, liberty, or property.  The grand jury and civil jury clauses do much more.  They require the government to adopt particular structures.  For example, the Seventh Amendment obliges the government to provide juries in common law cases over $20.

Requiring states to adopt government structures significantly intrudes on the states’ prerogative to arrange their own governments. Under the Constitution, states are sovereign except to the extent that the Constitution provides otherwise. An essential feature of sovereignty is the power to arrange government and distribute power among governing bodies.  The Framers deliberately protected that power of the states.  The only limitation they imposed is that states must have republican forms of government, but they left the states vast discretion in structuring their republican governments.  Not incorporating the grand jury and civil jury clauses avoids dictating to the states how to arrange their judiciaries.

Of course, the obvious objection to this structural rights theory is that the Court has incorporated the right to a jury in criminal proceedings.  But it may be that the Court took a wrong turn in incorporating that right.  Certainly, the incorporation of that right has resulted in doctrinal anomalies.  For instance, despite the Court’s insistence that incorporated rights apply in the same way to the state and federal governments, the right to a criminal jury does not apply the same way to the states and the federal government. Among other things, although juries must be unanimous in federal criminal cases, they do not need to be unanimous in state proceedings.  This inconsistency suggests at least some recognition that incorporating the right interferes with the states’ prerogative to operate its judiciary.

The idea is still in nascent form.  We still have much work to do on it, and we’d love any thoughts on it. 

Posted by Carissa Byrne Hessick on November 30, 2018 at 11:17 AM in Carissa Byrne Hessick, Constitutional thoughts | Permalink


I see Gorsuch and some others taking a line of reasoning that the bill of rights includes the minimum protections but states are free to impose additional limits on themselves ? The greater protection at the state level for defendants before the grand jury is consistent with that. The non unanimous jury in criminal cases isn't.

I suspect Gorsuch would rule against the non-unanimous jury but be ok with states that gave citizens even more protections from an overzealous state prosecutor in a grand jury.

But I suppose for those that don't see the fear of an overreaching government baked in to the constitution left and right, that might not feel so clear. I like to think that Franklin and many others that contributed later to the constitution of kindred spirits saw freedom from the reach of the state and freedom from the whims of fellow citizens as an end in itself, not in some sort of Rousseau-ian notion that freedom was only valuable as a means to social justice.

Posted by: Mike | Dec 12, 2018 8:19:57 PM

So what you're saying is that Reynolds v. Sims (or Moe v. Confederated Salish & Kootenai Tribes) didn't really affect how the state operated or conducted it's business, but a grand jury mandate would somehow radically change the structure of government as we know it?

Posted by: Burger King v. Chicago | Dec 1, 2018 9:11:38 PM

I am not completely sold. I think of Reynolds v. Sims, Gerstein v. Pugh, and for that matter the Reconstruction Amendments themselves, as imposing much more on state government structures than would extending jury trials or grand jury proceedings. In addition, I speculate (but do not know for sure) that all states in 1868 had grand juries and trial juries in their laws. If so, complete incorporation would be a marginal shift, not a wholesale restructuring.

Posted by: Jack Chin | Dec 1, 2018 9:09:50 PM

And speaking of the Fourteenth Amendment , don't miss it :



Posted by: El roam | Nov 30, 2018 1:01:08 PM

Just clarification , to my comment down there :

So finally , what has been imposed it seems ( I have read only the ruling of the supreme court ) is not a fine ( excessive as such) but forfeiture of his car . The car worths four times more than the fine had been imposed . So , it seems , that the form of forfeiture has taken over finally , and not strict fine . I quote the Supreme court :

" ......to obtain forfeiture the state must show that a person used vehicle to transport an illicit substance listed in the statute for the purpose of dealing or possessing the substance . "


Posted by: El roam | Nov 30, 2018 12:52:42 PM

Very interesting . Just worth to note , that the supreme court of Indiana , has stated clearly , that , I quote :

An important corollary is that Indiana has its own system of legal,including constitutional, protections for its citizens and other persons within its jurisdiction.Absent a definitive holding from the Supreme Court, we decline to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.

End of quotation :

So , it may support somehow your attitude , concerning differences between such or such incorporation of clauses from the bill of rights , for they do recognize , that it is a right , that should be protected , and is protected by the state anyway .

Yet , one may wonder :

Then why and how at first place , the excessive fine has been imposed and affirmed ( no debate about the excessiveness of the fine ) . Well , amazingly , it seems that the lawyer , has raised only the federal constitution as basis for opposing the forfeiture , not others it seems . At least , it seems , that this was the only issue in the Supreme court of Indiana .

However , you raise the issue of the incorporation of grand juries , and insist on the structure notion as essential element of sovereignty of states . On the other hand , you claim that I quote :

" a right is incorporated if is fundamental or deeply rooted in our nation's history "

So , one may conclude , that what is structural , or has to do with structure , is not ( at least necessarily ) by definition " deeply rooted " . Well , you need to prove first it seems , that the philosophy of the doctrine of having jury in trial , has to do or not , philosophically , with fundamental right as mentioned by you ( all in substantial terms I mean ) .

So, first , you need to present , what is the essence of having jury in trial . Whether it has to do with elementary due process or not . Whether lack of jury , is hurting fundamentally due process or the rights of one defendant .

Here to the ruling of the Supreme court of the state of Indiana :



Posted by: El roam | Nov 30, 2018 12:33:22 PM

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