Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Tuesday, March 09, 2004

THE MADNESS OF BILL OF RIGHTS INCORPORATION Doing my reading for Criminal Procedure just now, I was reminded of one of my top con law pet peeves: the utterly incomprehensible manner in which parts of the Bill of Rights has been held to apply to the states through the Fourteenth Amendment. Let's assume that you agree that the Fourteenth Amendment applies some, but not all, of the protections of the Bill of Rights to the states. Under current doctrine, the First Amendment, which you'll recall begins "Congress shall make no law..." (emphasis added), is incorporated. At the same time, the Fifth Amendment's grand jury requirement ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger") is not incorporated. Does this make any sense?

Under a "plain meaning" analysis, the Fifth Amendment's grand jury requirement would seem to apply to the states even in the absence of the Fourteenth Amendment (something that can't be said of the First Amendment). And yet, under today's constitutional doctrine, not only does it not apply to the states on its own, it's one of the few provisions of the Bill of Rights not incorporated against the states via the Fourteenth Amendment.

Is there some compelling logical argument I'm missing here? Or do we just like a little crazy in our constitutional law framework?