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STRUCTURAL RIGHTS AND INCORPORATION
- INTRODUCTION F. Andrew Hessick & Elizabeth Fisher
- I. T HE S ELECTIVE INCORPORATION T EST
- II. STRUCTURAL R IGHTS
- A. Rights Versus Structures
- B. Structural Rights
- The Fifth Amendment Right to a Grand Jury
- The Sixth Amendment Right to a Criminal Jury
- The Seventh Amendment Right to a Civil Jury
- III. A S TRUCTURAL RIGHT T HEORY OF N ONINCORPORATION
- A. The Constitutional Principle of State Control of State Government
- The Sovereign Power of Arranging Government
- Government 2. The Constitution Preserves the State Power to Arrange State
- B. Against Incorporating Structural Rights - Structural Rights 1. Against Reading the Fourteenth Amendment to Incorporate
- Consistency with Precedent
- Responding to Objections
- IV. IMPLICATIONS
- A. Civil Juries
- B. Grand Juries
- C. Criminal Juries
- CONCLUSION
STRUCTURAL RIGHTS AND INCORPORATION
F. Andrew Hessick * & Elizabeth Fisher **
Under the selective incorporation doctrine, provisions in the Bill of Rights are applied against the states
if they are fundamental to the American scheme of ordered liberty or deeply rooted in this nation’s history.
By focusing solely on the importance of rights, this doctrine fails to account for the effect of incorporating
a right on the states. This Article challenges this approach. It identifies a category of rights whose incor-
poration most deeply intrudes on state sovereignty. These rights do not simply create individual entitle-
ments; they also have structural features by dictating which government institutions may exercise which
government powers. These “structural rights” comprise the Fifth Amendment right to a grand jury, the
Sixth Amendment right to a criminal jury, and the Seventh Amendment right to a civil jury. The Article
argues that these rights should not be incorporated because the prerogative to allocate government powers
is one of the core powers of state sovereignty, and the Fourteenth Amendment does not purport to strip
the states of that power. In addition to protecting the state power to arrange government, adopting a theory
against incorporating structural rights would explain the Court’s refusal to incorporate the grand jury
and civil jury rights, as well as doctrinal anomalies surrounding incorporation of the criminal jury right.
Adopting the theory against incorporating structural rights would have several implications. The most
significant is that it would result in the deincorporation of the Sixth Amendment right to a criminal jury.
The consequence of this deincorporation is not only that the U.S. Constitution would not oblige states to
provide juries in criminal cases but also that the doctrine announced in Apprendi v. New Jersey ,
which prohibits sentencing schemes that allowed judges to make factual findings altering the range of
punishment, would no longer apply against the states.
I NTRODUCTION
Since the 1960s, the Supreme Court has said that the Fourteenth Amend-
ment requires states to observe rights that are fundamental to our concept of
ordered liberty or deeply rooted in our nation’s history. 1 The prevailing view is
that under this test, all the provisions in the Bill of Rights apply against the
states, even if some of those rights have not yet been formally incorporated.
After all, that a right is enumerated in the Bill of Rights is strong evidence that
- Associate Dean and Professor of Law, University of North Carolina School of Law. J.D., Yale Law School. B.A., Dartmouth College. ** Law clerk to the Honorable David B. Sentelle. J.D., University of North Carolina School of Law. B.S., North Carolina State University. Thanks to Akhil Amar, Aditya Bamzai, Carissa Hessick, Jeff Hirsch, Kurt Lash, and Bill Marshall for their helpful comments and encouragement.
- See McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
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Process Clause^9 —singles out rights that are fundamental or historically im-
portant for special treatment. Nor is there any historical foundation for the
doctrine. 10 Instead, the doctrine is the product of Justices’ efforts to implement
the values that they believe underlie the Fourteenth Amendment.^11
But the set of values captured by the selective incorporation test is too nar-
row. By asking whether a right is fundamental or historically rooted, the test
focuses on the importance of the right to individuals. The test does not account
for the effect that incorporating a right would have on the states 12 —as the
Court has explicitly acknowledged.^13
The failure to account for the effect on the states is unwarranted. Under
the dual-sovereignty system established by the U.S. Constitution, states are sov-
ereign entities.^14 They have all the powers of sovereignty except to the extent
that the Constitution strips states of those powers. Recognizing the central im-
portance of state sovereignty to our constitutional order, the Court has inter-
preted many constitutional provisions to include implicit exceptions to prevent
interference with the operation of state government.^15
Any judge-made doctrine of incorporation should likewise take pains to
avoid trammeling on state power. Although the Fourteenth Amendment im-
posed significant new restrictions on the states, it did not abrogate state sover-
eignty. Because the incorporation of each provision of the Bill of Rights limits
the states’ ability to act, the intrusion on state interests should inform determi-
nations about which rights are incorporated against the states.
- Id. (“No State shall... deprive any person of life, liberty, or property, without due process of law... .”).
- See Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure , 53 C ALIF. L. REV. 929, 934 (1965) (“Whatever one’s views about the historical support for... [the] wholesale incorporation theory, it appears undisputed that the selective incorporation theory has none.” (footnotes omitted)); Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment , 73 Y ALE L.J. 74, 77–78 (1963) (“There is no evidence, and it is difficult to conceive, that anyone thought or intended that the amendment should impose on the states a selective incorporation.”).
- Disagreement in the face of ambiguous text is unsurprising. Interpretations of ambiguous texts necessarily rest on the interpreter’s values, see Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism , 107 G EO. L.J. 1, 10 (2018) (noting that resort to principle is inevitable in the face of uncertainty); Richard H. Fallon, Jr., Foreword: Implementing the Constitution , 111 H ARV. L. R EV. 56, 57– 60 (1997) (discussing the role of value judgments in the formation of doctrine), and each individual has a personal hierarchy of values.
- To be sure, the selective incorporation test protects state sovereignty to the extent it does not result in total incorporation, but it does not do so in a way that focuses on state sovereignty. It does not ask, for example, how incorporating a particular right would affect the states.
- McDonald v. City of Chicago, 561 U.S. 742, 784 (2010) (“Throughout the era of ‘selective incor- poration,’ Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. Time and again, however, those pleas failed.” (citations omitted)).
- See U.S. CONST. amend. X.
- See infra notes 180–96 and accompanying text.
2019] Structural Rights and Incorporation 167
Accounting for the effect that incorporating a right would have on the
states significantly changes the incorporation calculus.^16 Not all provisions in
the Bill of Rights equally impair state sovereignty if they are incorporated. Many
provisions impose substantive limitations on the government—for example,
the First Amendment limits the government’s ability to abridge the freedom of
speech. Others require the government to observe particular procedures when
taking actions—for example, the Fourth Amendment requires law enforcement
ordinarily to obtain warrants before conducting searches. Incorporating these
provisions does undermine state sovereignty because those provisions restrict
the areas in which the state may act and dictate the procedures a state must
follow when taking some actions.
The incorporation of other provisions, however, intrudes more signifi-
cantly on state sovereignty. Chief among those provisions are the Fifth Amend-
ment right to a grand jury, the Sixth Amendment right to a criminal jury, and
the Seventh Amendment right to a civil jury. These provisions do not simply
create individual entitlements to have a jury instead of a judge decide particular
issues; they dictate how a state must organize its government. They direct that a
state can exercise certain of its government powers only through these juries.
We call these provisions “structural rights.”^17
These structural rights are individual rights. They create entitlements in in-
dividuals to juries. But they also have structural features because they dictate
which bodies of government can exercise particular powers. They accordingly
operate much like the provisions in Articles I, II, and III of the Constitution
that assign government powers to the various branches of the federal govern-
ment.
Incorporating these structural rights deeply interferes with state sover-
eignty. One of the essential features of sovereignty is the ability to decide how
to arrange a government and allocate power among its various bodies.^18 How
the people choose to arrange their government reflects the values and views of
- Others have argued that federalism should limit incorporation, but they have offered different ways of operationalizing federalism in doctrine. See, e.g. , Friendly, supra note 10, at 935–36 (arguing that in- corporated provisions should apply less rigorously to the states).
- The way in which we use the term “structural rights”—individual rights that also entail allocations of government power—thus differs from the way in which Ozan Varol uses the term. Professor Varol uses the term to describe the concept that all rights confer government power. Ozan O. Varol, Structural Rights , 105 G EO. L.J. 1001, 1012 (2017). A possible fourth structural right derives from the Fourth Amendment’s Warrant Clause, which provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. C ONST. amend. IV. Although that Clause does not specifically assign the power to issue warrants, the Supreme Court has suggested in dicta that only a judge or magistrate may issue warrants. See Katz v. United States, 389 U.S. 347, 357 (1967). Because the Court has not resolved the issue, this Article does not address it.
- J OHN LOCKE , T HE S ECOND T REATISE OF G OVERNMENT § 132, at 73–74 (Thomas P. Peardon ed., The Liberal Arts Press 1952) (1690).
2019] Structural Rights and Incorporation 169
to the states than to the federal government. 25 The structural rights approach
removes this anomaly by deincorporating the right.
This theory of unincorporated structural rights takes no position on
whether other rights in the Bill of Rights should be incorporated. It argues only
that structural rights should be excluded from incorporation. It is thus a theory
of exclusion, not inclusion. 26
This Article proceeds in four parts. Part I describes the current theory of
incorporation and identifies several shortcomings in the doctrine. Part II turns
to developing the theory of structural rights. It explains that most provisions in
the Constitution either allocate powers to government branches or protect
rights of individuals. It argues that structural rights are an exception to this usual
divide: they create entitlements in individuals to have particular government
institutions make certain decisions, and at the same time, they empower those
institutions to act. Part II then identifies the three structural rights in the text
of the Bill of Rights: the right to a grand jury, the right to a jury in criminal
cases, and the right to a jury in civil cases.
Part III argues against incorporation of structural rights. It explains that
control over the organization of government is a core feature of state sover-
eignty deeply embedded in the Constitution. It then explains that nothing in the
language or history of the Fourteenth Amendment provides a basis for ignoring
this principle and requiring states to adopt jury structures. It further argues that
not incorporating structural rights makes better sense of the decisions not in-
corporating grand juries and civil juries and explains why the right to a criminal
jury applies differently to the states.
Part IV discusses the ramifications of not incorporating structural rights.
Some of those consequences—such as maintaining the states’ discretion to de-
sign systems for deciding civil cases and for charging crimes—are obvious. Oth-
ers are less obvious but not less important. Perhaps the most significant
consequence is that it would make Apprendi v. New Jersey , 27 which holds that the
Sixth Amendment prohibits judges from making factual findings that are nec-
essary to increasing the punishment range that an offender faces, inapplicable
to the states. Apprendi rendered unlawful many state systems that authorized
judges to make factual findings altering the range of punishment. Deincorpo-
rating the jury trial right on which Apprendi rests would allow states to reinstitute
those sentencing schemes.
- See infra notes 76–78 and accompanying text.
- For another article discussing alternate theories of exclusion, see Suja A. Thomas, Nonincorporation: The Bill of Rights After McDonald v. City of Chicago, 88 N OTRE D AME L. REV. 159, 180–82 (2012) (articulating several possible theories after McDonald , including a theory that nonincorporated rights are not fundamental, a theory of stare decisis, total incorporation, and a jury theory of nonincorporation).
- 530 U.S. 466, 490 (2000).
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I. THE S ELECTIVE I NCORPORATION TEST
The incorporation doctrine is important because the Bill of Rights does not
apply by its own terms to the states. In the 1833 decision Barron v. City of Balti-
more , 28 the Court held that the Bill of Rights applied only against the federal
government. 29 Writing for the Court, Chief Justice Marshall stated that the Con-
stitution was not “ordained and established... for the government of the indi-
vidual states,” 30 and likewise, the adoption of the Bill of Rights “contain[ed] no
expression indicating an intention to apply [the amendments] to the state gov-
ernments.” 31
But the ratification of the Fourteenth Amendment in 1868 sparked a new
debate about the applicability of the Bill of Rights to the states—a debate that
continues today. That debate has focused on two clauses in the Fourteenth
Amendment. The first is the Privileges or Immunities Clause, which declares,
“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.” 32 The second is the Due Process
Clause, which states: “[N]or shall any State deprive any person of life, liberty,
or property, without due process of law.” 33
The text of neither clause obviously extends the Bill of Rights against the
states. Although the Privileges or Immunities Clause prohibits states from
abridging privileges or immunities, it does not define those privileges or im-
munities. 34 Key sponsors of the Fourteenth Amendment indicated that the pro-
vision meant to encompass the first eight amendments. 35 But that
understanding was not uniform among the members of Congress considering
the Amendment. 36 Moreover, the same terms “privileges” and “immunities”
appear in Article IV of the Constitution, 37 and earlier court decisions defined
those terms to encompass a small category of rights different from those in the
Bill of Rights. 38 Less than five years after the Fourteenth Amendment’s ratifi-
- 32 U.S. (7 Pet.) 243 (1833).
- Id. at 250.
- Id. at 247.
- Id. at 250.
- U.S. C ONST. amend. XIV, § 1.
- Id.
- See McDonald v. City of Chicago, 561 U.S. 742, 758 (2010) (acknowledging that even those who disagree with the Slaughter-House opinion do not agree on what rights the Privileges or Immunities Clause actually covers).
- See AKHIL REED AMAR , AMERICA’S UNWRITTEN CONSTITUTION 157 (2012).
- See, e.g. , CONG. G LOBE , 39th Cong., 1st Sess. 3041 (1866) (recounting statement of Senator Reverdy Johnson of Maryland that he did “not understand what [would] be the effect of” the Privileges or Immunities Clause).
- U.S. C ONST. art. IV, § 2.
- See Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230) (“[C]onfining” the privileges and immunities of Article IV to “[p]rotection by the government; the enjoyment of life and liberty,
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Since the 1960s, the Court has taken an intermediate position of “selective
incorporation.” 47 Instead of concluding that the Fourteenth Amendment auto-
matically incorporates the entire Bill of Rights, the Court has held that whether
a right is incorporated rests on a right-specific determination. A right applies
against the states if it is “fundamental to our scheme of ordered liberty”^48 or is
“deeply rooted in this Nation’s history and tradition.”^49
Although selective incorporation was adopted as an alternative to the total
incorporation theory, the Court has suggested more recently that it extends all
of the provisions of the Bill of Rights against the states. Through the doctrine,
the Court has incorporated “almost all of the provisions of the Bill of Rights.”^50
The few provisions that are not incorporated are the Third Amendment right
against quartering soldiers, the Fifth Amendment right to a grand jury, and the
Seventh Amendment right to a civil jury. 51 The Court has sought to justify the
failure to incorporate the Third Amendment on the ground that the Court has
not had an opportunity to determine whether the provision is incorporated, and
the failure to incorporate the grand and civil jury rights on the ground that ear-
lier decisions refusing to incorporate them predate the era of selective incorpo-
ration. 52 The former is accurate, but as described below, the latter is not.
Under the theory of selective incorporation, a right incorporated against
the states affords the same level of protection against the states as it does against
the federal government. 53 According to the Court, it would simply be “incon-
gruous” to apply different standards in protecting incorporated rights against
the states and federal government. 54 Thus, as the Court has put it, it has “deci-
sively held” that once a right is incorporated it applies to the states and federal
- McDonald , 561 U.S. at 763.
- Id. at 764 (emphasis omitted).
- Id. at 767 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
- Id. at 764.
- See id. at 764 n.13. Although it has never held that the Excessive Bail Clause applies against the states, the Court has stated in dicta that it does. See Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (“Bail, of course, is basic to our system of law, and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.” (citations omitted)); see also Scott W. Howe, The Implications of Incorporating the Eighth Amendment Prohibition on Excessive Bail , 43 H OFSTRA L. REV. 1039, 1085 (2015) (discussing the assumption that the Eighth Amendment applies to the states).
- McDonald , 561 U.S. at 765 n.13.
- See Malloy v. Hogan, 378 U.S. 1, 10–11 (1964) (“The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guar- antees of the Bill of Rights.’” (quoting Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275 (1960))). Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” McDonald , 561 U.S. at 765 (quoting Malloy , 378 U.S. at 10); see also Duncan v. Louisi- ana, 391 U.S. 145, 181 (1968) (Harlan, J., dissenting) (stating that the Court “has simply assumed that the question... is whether... [a provision] should be incorporated into the Fourteenth [Amendment], jot-for- jot and case-for-case, or ignored”).
- Malloy , 378 U.S. at 11 (stating that it would be “incongruous” to apply different standards “de- pending on whether the claim was asserted in a state or federal court”).
2019] Structural Rights and Incorporation 173
government “according to the same standards.” 55 Incorporation therefore re-
quires states not only to honor incorporated provisions but also to follow the
various judicial doctrines implementing those provisions.^56
Despite being accepted by the Court for over fifty years, the selective in-
corporation doctrine has several major shortcomings. To start, the doctrine
does not have any support in either the text or legislative history. 57 Nor has the
Court offered any theoretical justification for it. Instead, as Judge Friendly ob-
served, the doctrine is the product of cobbling together quotations from state-
ments in older decisions that did not mean to establish a doctrine of
incorporation. 58
Second, the doctrine has a singular focus on the importance of the rights
to individuals. It does not account for the effect that incorporation might have
on the states; the Court has explicitly rejected the argument that federalism
should have any bearing on incorporation. 59 But under our federalist system,
states are empowered to choose what behavior to regulate and the way in which
to regulate it.^60 They also have the autonomy to fashion and regulate their own
governmental systems, including those in their judicial branches. 61 Each incor-
porated right limits the scope of this state power. The degree of intrusion on
the state is not limited to requiring the states to observe the incorporated rights.
States are also obliged to follow all the doctrines that the Court has fashioned
to implement those rights—doctrines that plainly go beyond what is seemingly
required by the text. 62 The consequence is that the Court regulates areas that
would otherwise fall within state control.
- McDonald , 561 U.S. at 765.
- See Friendly, supra note 10, at 935 (stating that an incorporated right “comes over to the states with all the overlays the Court has developed in applying it to the Federal Government”).
- See Henkin, supra note 10, at 77–78 (“There is no evidence, and it is difficult to conceive, that anyone thought or intended that the amendment should impose on the states a selective incorporation.”).
- Friendly, supra note 10, at 934 (“The theory takes off from judicial statements that certain provi- sions of the first eight amendments, especially the first, had been ‘absorbed’ in or ‘made applicable’ by the due process clause of the fourteenth—elliptical language quite obviously used as shorthand for earlier more careful delineations.” (footnotes omitted)).
- McDonald , 561 U.S. at 783. The Court further highlighted its rejection of the “two-track approach” under which the guarantees were applied differently against the state and federal governments in order to allow more flexibility for the states. Id. at 784.
- United States v. Comstock, 560 U.S. 126, 153 (2010) (Kennedy, J., concurring) (“The Constitution delegates limited powers to the National Government and then reserves the remainder for the States.... And the powers reserved to the States are so broad that they remain undefined. Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.”).
- This power, like others, is not absolute. The important point, however, is that the Fourteenth Amendment, under which the Bill of Rights is incorporated, does not explicitly limit this power. Thus, it should not be read to ignore state sovereignty. Indeed, as explained above, many constitutional provisions are actually read in the opposite direction. In other words, they are read to contain implicit exceptions that avoid infringing on state sovereignty.
- Dickerson v. United States, 530 U.S. 428, 440 (2000) (concluding that, although it goes beyond the text of the Fifth Amendment, the Miranda doctrine is “constitutionally based”); Henry P. Monaghan, Foreword: Constitutional Common Law , 89 HARV. L. REV. 1, 19–20 (1975) (developing a theory that constitutional doctrine goes beyond the text).
2019] Structural Rights and Incorporation 175
issue unwarranted indictments sought by the Crown.^69 At the time of the rati-
fication of the Constitution, all states guaranteed the right to a grand jury, 70 and
all but a handful of states still had similar guarantees by the time of the ratifica-
tion of the Fourteenth Amendment. 71
Civil juries were also common features in the colonies and early states. In
1791, twelve of thirteen states guaranteed the right to a civil jury. 72 The absence
of a guarantee for juries in civil cases tried by federal courts generated some of
the most heated criticism of the proposed Constitution. 73 Thirty-six of the
thirty-seven states in the Union in 1868—when the Fourteenth Amendment
was adopted—guaranteed a right to civil jury trial. 74 Today, all states but Loui-
siana guarantee the right to jury trials in at least some civil cases.^75
The Court has also not universally adhered to its rule that incorporated
rights apply jot-for-jot against the states. Despite claiming that the states should
not be subject to “only a watered-down, subjective version” of the guarantees, 76
the Court has allowed certain incorporated rights to apply differently to the
federal government than to state governments. For example, the Court has long
held that the Sixth Amendment requires jury verdicts to be unanimous in fed-
eral court, 77 but it has said that this restriction does not apply to state criminal
juries.^78
- 4 LAF AVE ET AL ., supra note 2, § 15.1, at 423; see also Wood v. Georgia, 370 U.S. 375, 390 (1962) (“Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”).
- 4 LAF AVE ET AL ., supra note 2, § 15.1(c), at 449 (“[A]ll of the original states had their own laws giving defendants a right to insist upon a grand jury charge when being prosecuted for a serious offense.”).
- See Donald Dripps, The Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revo- lution , 18 J. C ONTEMP. LEGAL ISSUES 469, 477–79 (2009).
- Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? , 85 S. C AL. L. REV. 1451, 1512 (2012) (“[I]n 1791 the number of states guaranteeing the right to a jury in a civil trial rose from ten to an impressive twelve... .”). 73_. See_ Edith Guild Henderson, The Background of the Seventh Amendment , 80 HARV. L. REV. 289, 295 (1966) (“The almost complete lack of any bill of rights was a principal part of the Anti-Federalist argument [against ratification]; the lack of provision for civil juries was a prominent part of this argument... .”).
- Steven G. Calabresi et al., Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States? , 94 N OTRE D AME L. REV. 49, 115 (2018).
- Id.
- McDonald v. City of Chicago, 561 U.S. 742, 765 (2010).
- See Maxwell v. Dow, 176 U.S. 581, 586 (1900).
- See McDonald , 561 U.S. at 766 n.14 (explaining how the Court reached this result). The Court has decided to revisit the incorporation of the unanimity requirement this term. State v. Ramos, 231 So. 3d 44 (La. Ct. App. 2017), cert. granted , 129 S. Ct. 1318 (2019) (No. 18-5924). The unanimity requirement is not the only aspect of the Sixth Amendment jury right not extended to the states. But the Court has also not applied the vicinage requirement to state juries. See 1 LAF AVE ET AL ., supra note 2, § 2.6(b), at 831. Moreover, the discomfort with dictating how states arrange their juries resulted in the Court abandoning the requirement that juries consist of twelve people to uphold New York’s six-person jury. See generally Baldwin v. New York, 399 U.S. 66 (1970). Although the change applies to both federal and state juries, Justice Harlan explained that the reason for the change was to allow the states “elbow room in ordering their own criminal systems.” Id. at 118 (Harlan, J., dissenting).
176 ALABAMA L AW REVIEW [Vol. 71:1:
II. S TRUCTURAL RIGHTS
Developing a theory of excluding structural rights from incorporation re-
quires first laying a groundwork about rights and structures. To that end, this
Part develops two concepts. First, it distinguishes rights conferred by the Con-
stitution and structures established by the Constitution. Broadly speaking, both
types of provisions aim to protect individual liberty. To do so, rights-conferring
provisions limit the ability of the government to act in certain areas or prescribe
procedures through which the government must act. Structural provisions, on
the other hand, establish specific governmental institutions and assign powers
to those institutions. Structural provisions protect individual liberty by diffusing
power among the branches and levels of government, which prevents undue
concentration of power in the hands of one institution or the federal or state
government.
Second, this Part defines and describes structural rights. These are a sort of
hybrid between rights-conferring and structural provisions. They create indi-
vidual entitlements, but they also allocate government power to a particular in-
stitution. Structural rights permit the government to act, but only through
certain bodies. The three structural rights in the Bill of Rights are the Fifth
Amendment right to a grand jury, the Sixth Amendment right to a criminal jury,
and the Seventh Amendment right to a civil jury.^79
A. Rights Versus Structures
The Constitution contains two general types of provisions. The first con-
fers rights; the second establishes government structures and assigns powers to
those structures. Some rights in the Constitution limit the ability of the govern-
ment to act in a specific area. The First Amendment, for example, prohibits the
government from abridging the freedom of speech. 80 It marks speech as a re-
stricted area that the government cannot freely regulate, guaranteeing to the
people the right to freedom of speech. Other examples of rights-conferring
provisions include the Fourth Amendment’s restriction on unreasonable
searches and seizures, 81 the Second Amendment’s recognition of the right to
bear arms, 82 and the Third Amendment’s prohibition on quartered soldiers in
time of peace. 83
Other rights entitle individuals to procedural protections. These rights do
not prohibit the government from taking particular actions against individuals;
- See supra note 17.
- U.S. C ONST. amend. I.
- Id. amend. IV.
- Id. amend. II.
- Id. amend. III.
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original Constitution that he understood to confer individual rights and con-
trasted them with the other provisions that he understood to define govern-
ment powers.^97
Despite the distinction between the two types of provisions, both types of
provisions limit the government’s ability to act. Moreover, they share the over-
arching goal of protecting individual liberty by constraining government power.
Rights protect liberty directly by creating individual entitlements limiting the
types of actions the government may take. Structural provisions protect liberty
more indirectly. They do not confer on individuals a personalized entitlement
to the observance of these structures. 98 Instead, these structures protect liberties
by distributing power among government institutions. 99 As Madison explained,
the structural arrangements established by the Constitution provide “secu-
rity... to the rights of the people.”^100
Some structural provisions achieve this goal through separation of powers.
For example, by separating the legislative and executive powers, the Constitu-
tion prevents one institution from determining both what is illegal and who
should be prosecuted. This arrangement prevents concentrating undue power
in the hands of one institution. 101 Other structural features limit government
power by restricting the ability of one government institution to act without the
acquiescence of another government institution. For example, the bicameralism
provision requires both the House and the Senate to approve a bill before it can
- T HE F EDERALIST N O. 84, supra note 20, at 495–96 (Alexander Hamilton) (listing as among these individual rights the limits on the consequences of impeachment, the right to habeas corpus, the right against bills of attainder and ex-post-facto laws, the prohibition on titles of nobility, the right to criminal juries, the right against broadly defined treason, and the right against corruption of blood); see also G ORDON S. W OOD, T HE CREATION OF THE AMERICAN R EPUBLIC , 1776–1787, at 540 (1969) (noting James Wilson’s statement that “[i]t would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined”).
- See Huq, supra note 95, at 1452 (“[T]here is little reason to think that the Constitution’s structural provisions, properly glossed, engender individual entitlements in the same way as the First Amendment or the Fourteenth Amendment’s Equal Protection Clause.”); see also F. Andrew Hessick, The Separation-of-Powers Theory of Standing , 95 N.C. L. REV. 673, 687–89 (2017) (exploring the distinction between individual rights and provisions bearing on government organization). Of course, although these structural provisions do not con- fer rights on individuals, individuals can enforce these provisions when they otherwise have standing. See Bond v. United States, 564 U.S. 211, 217 (2011).
- Bowsher v. Synar, 478 U.S. 714, 721 (1986) (“The declared purpose of separating and dividing the powers of government, of course, was... ‘to secure liberty.’”(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring))); T HE F EDERALIST N O. 78, supra note 20, at 450 (Alexander Hamilton) (“For I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” (quoting, e.g. , M ONTESQUIEU , T HE S PIRIT OF LAWS 152 (Thomas Nugent trans., Hafner Publ’g Co. 1949) (1748))).
- THE F EDERALIST N O. 51, supra note 20, at 295 (James Madison); see Ernest A. Young & Erin C. Blondel, Federalism, Liberty, and Equality in United States v. Windsor, 2012 C ATO S UP. C T. REV. 117, 144 (2012-
- (discussing Madison’s structural arguments).
- Bowsher , 478 U.S. at 721 (stating that “separating and dividing the powers of government... ‘dif- fus[es] power’” (quoting Youngstown , 343 U.S. at 635 (Jackson, J., concurring))).
2019] Structural Rights and Incorporation 179
become a law. 102 Likewise, the Presentment Clause requires Congress to present
the bill to the President for signature before it becomes law, 103 and if the Pres-
ident vetoes the law, it may become law only if both houses repass the bill by
two-thirds votes. 104 Together, the separation of powers and these checks and
balances raise substantial obstacles to the government’s ability to act.
B. Structural Rights
Despite the tendency to divide the Constitution into structural and rights-
conferring provisions, the line between the two is not always absolute. Some
provisions are hybrids. Falling into this camp are provisions that confer indi-
vidual rights to have one institution of government instead of another decide
an issue. We call these provisions “structural rights.” Like other rights, these
structural rights confer entitlements on individuals. But they also have structural
aspects. They permit the government to act, but only through certain bodies.
They thus function like rights with power-allocating provisions, dictating which
government bodies have the power to act.
Structural rights are different from the other substantive and procedural
rights found in the Bill of Rights. They do not limit the areas in which the gov-
ernment may act. Nor do they simply prescribe the procedures that government
institutions must follow. Structural rights allocate government power. They dic-
tate which government institutions hold what power. And like structural provi-
sions in the Constitution, the motivation behind these structural rights is to
disperse power and check other branches of the government.
Structural rights are rare in the Constitution. Most rights in the Constitution
are either substantive or procedural. 105 The first eight amendments—the body
that the Court has said is incorporated—contain only three structural rights.
They are the Fifth Amendment right to a grand jury, 106 the Sixth Amendment
right to a jury in criminal cases,^107 and the Seventh Amendment right to a jury
- U.S. CONST. art. I, § 7, cl. 2 (requiring “[e]very Bill” to “have passed the House of Representatives and the Senate... before it become[s] a Law”).
- Id.
- Id.
- See supra text accompanying notes 80–87. Of course, although many rights are in the Bill of Rights, other provisions of the Constitution also confer rights. See, e.g. , U.S. C ONST. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”).
- U.S. CONST. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... .”).
- Id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... .”). The Sixth Amendment is not the only provision establishing a role for juries in criminal cases. Article III provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Id. art. III, § 2, cl.
- This Article III provision, however, applies only to federal prosecutions. Id.
2019] Structural Rights and Incorporation 181
1. The Fifth Amendment Right to a Grand Jury
The Fifth Amendment provides that “[n]o person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or indict-
ment of a Grand Jury.” 115 Grand juries are bodies of twelve to twenty-three
individuals who have the power to investigate and charge crimes. To indict an
individual, the grand jury must find probable cause to believe that the individual
committed a capital or infamous crime. 116 For less serious offenses, a prosecu-
tor may proceed by a preliminary hearing in which the prosecutor seeks to per-
suade a judge, as opposed to a grand jury, that there is a sufficient basis for
charging the defendant. 117
The Grand Jury Clause creates a structural right. It confers a right not to
be charged with a significant crime except by a grand jury. At the same time, it
allocates to grand juries the power of indictment for federal offenses. Indeed,
the principal benefit of the right to grand juries consists of the structural limi-
tations it imposes on the government. Allocating indictment power to the grand
jury creates a check on prosecutorial overreach: a grand jury can refuse to indict
a person if it believes the prosecution is unwarranted. 118 It also acts as a check
on Congress because the grand jury may refuse to indict if they believe the law
alleged to have been violated is unjust or unconstitutional.^119 Further, it limits
the power of judges. Judges are employees of the government, and thus, they
may simply be more inclined to support the government in criminal cases.^120
Moreover, despite Article III’s salary and job guarantees aimed at making judges
independent, that independence is not complete. The judiciary depends on
Congress for funding, and accordingly they may rule to please members of Con-
gress even when the evidence does not support their conclusion. Likewise,
judges aspiring for appointments by the President to higher positions may be
inclined to support the prosecution.
- U.S. C ONST. amend. V. The Amendment contains an exception for military cases.
- According to the Court, infamous crimes include felonies. Mackin v. United States, 117 U.S. 348, 354 (1886). And it may include other misdemeanors that carry a sufficiently stigmatizing punishment. See 4 LAF AVE ET AL ., supra note 2, § 15.1(b), at 439–41; see generally Gabriel J. Chin & John Ormonde, Infamous Misdemeanors and the Grand Jury Clause , 102 MINN. L. REV. 1911 (2018) (discussing what constitutes infamous crimes). Under the Federal Rules of Criminal Procedure, a grand jury indictment is required only for felonies. See F ED. R. CRIM. P. 7. A misdemeanor can be tried on an information. See F ED. R. CRIM. P. 58(b). The conclusion must be that punishment of less than one year is not infamous.
- See F ED. R. CRIM. P. 5.1(a)(4).
- Suja A. Thomas, Blackstone’s Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States , 55 W M. & M ARY L. REV. 1195, 1231 (2014).
- Id.
- Id. at 1212–14 (detailing the importance of the grand jury being separate from the government).
182 ALABAMA L AW REVIEW [Vol. 71:1:
2. The Sixth Amendment Right to a Criminal Jury
The Sixth Amendment states that “[i]n all criminal prosecutions, the ac-
cused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed.”^121 By its
terms, this provision confers a “right” on individuals to trial by a jury in criminal
cases. But it also allocates power to juries to hear and decide criminal cases.
Because it both creates an entitlement to a jury and allocates power to the jury,
the provision is a structural right. 122
Although the Amendment states that the right extends to “all” criminal
cases, the Supreme Court has held that it applies only to those criminal charges
that carry a punishment of more than six months. 123 The Court, however, has
extended the effect of the right beyond the criminal trial to criminal sentencing.
In Apprendi v. New Jersey , the Court held that the Sixth Amendment prohibits
judges from making factual findings that are necessary to increasing the pun-
ishment range that an offender faces. 124 Those determinations, the Court said,
must be made by a jury.
As with the grand jury guarantee in the Fifth Amendment, assigning the
power to decide criminal cases to juries checks the three branches of govern-
ment. For the government to obtain a conviction against a person, it must con-
vince a jury of lay citizens that the conviction is proper. Criminal juries can
acquit those whom they believe to be unjustly prosecuted, and they can refuse
to convict under a law that they perceive to be unjust.^125 And they may be more
likely to do so than judges because, again, they do not have the same depend-
ence on the government as judges.^126
No less important than checking the government, the structural aspects of
the jury rights foster civic development. Participation on a jury provides an op-
portunity for individuals to learn about the law, the legal system, and the types
of problems that plague society. 127 It also gives an opportunity for individuals
- U.S. C ONST. amend. VI.
- See Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers , 121 YALE L.J. 1672, 1683 (2012) (discussing the “connection” between the “individual-rights” to juries and “the sepa- ration of powers”).
- Baldwin v. New York, 399 U.S. 66, 73 (1970).
- 530 U.S. 466, 490 (2000).
- Although the Court has criticized jury nullification, it has acknowledged that juries have the power to nullify. See Sparf v. United States, 156 U.S. 51, 141 (1895).
- Whether juries actually acquit more than judges is highly debatable. See Keith A. Findley, Reducing Error in the Criminal Justice System , 48 S ETON H ALL L. R EV. 1265, 1279 (2018) (questioning conclusions about judges versus juries); Alexander Lundberg, Sentencing Discretion and Burdens of Proof , 46 INT’L REV. L. & ECON. 34, 40 (2016) (pointing to data to question “the conventional wisdom that a defendant is better off going before an unpredictable jury” than a judge).
- 1 ALEXIS DE T OCQUEVILLE , D EMOCRACY IN AMERICA 364 (Francis Bowen ed., Henry Reeve trans., Sever & Francis 1862) (1835) (“The jury... serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free
