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Structural Rights and Incorporation explain in selective incorporation test, structural rights theory and Nonincorporation.
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166 ALABAMA L AW REVIEW [Vol. 71:1:
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.
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
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.
170 ALABAMA L AW REVIEW [Vol. 71:1:
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-
172 ALABAMA L AW REVIEW [Vol. 71:1:
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
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.
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
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;
178 ALABAMA L AW REVIEW [Vol. 71:1:
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
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
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.
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