Nonincorporation: The Bill of Rights after McDonald v. Chicago

Notre Dame Law Review Volume 88 | Issue 1 11-1-2012 Nonincorporation: The Bill of Rights after McDonald v. Chicago Suja A. Thomas Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159 (2012). Available at: http://scholarship.law.nd.edu/ndlr/vol88/iss1/4 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . Article 4 \\jciprod01\productn\N\NDL\88-1\NDL104.txt unknown Seq: 1 6-DEC-12 9:06 NONINCORPORATION: THE BILL OF RIGHTS AFTER MCDONALD V. CHICAGO Suja A. Thomas* Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights—the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right—rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court’s jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation—that a right is not fundamental—or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court’s jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states  2012 Suja A. Thomas. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, as long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Professor of Law, University of Illinois College of Law. I am grateful for the comments of, or discussions with, the following individuals: Robert Bone, Caitlin Borgmann, Paul Caron, Gabriel Chin, Richard Epstein, Kurt Lash, Darrell Miller, Wendy Parker, Arden Rowell, Joseph Seiner, Jamelle Sharpe, Michael Solimine, and Sandra Sperino. I am also thankful for the research assistance of Kaitlyn Luther on the Table of History of Jury Rights used in this Article and for the word processing assistance of Tina Lamb. 159 \\jciprod01\productn\N\NDL\88-1\NDL104.txt 160 unknown Seq: 2 notre dame law review 6-DEC-12 9:06 [vol. 88:1 and also would make the Court’s theory of selective incorporation more justifiable. INTRODUCTION For many years, justices of the Supreme Court have articulated theories regarding whether rights in the Bill of Rights apply against the states to defend their decisions on which rights apply against the states.1 Likewise, using such theories, scholars have argued for and against the application of rights in the Bill against the states.2 Also, over time, many of the rights that the Court initially decided do not apply against the states shifted to decisions to incorporate.3 However, certain rights have remained “nonincorporated.”4 The question of incorporation has never been viewed from the perspective of “nonincorporation.” Prior to McDonald v. Chicago, in what this Article terms the “nonincorporation” decisions, the Court decided against incorporating the Second Amendment right to bear arms,5 the Fifth Amendment grand jury right,6 the Sixth Amendment criminal jury unanimity requirement,7 and the Seventh Amendment civil jury trial right.8 In McDonald, the Court incorporated the Second Amendment pursuant to the Fourteenth Amendment, the plurality under selective incorporation under the Due Process Clause,9 and Justice Thomas 1 See, e.g., McDonald v. City of Chicago, 130 S. Ct. 3020, 3028–36 (2010). 2 See, e.g., AKHIL REED AMAR, THE BILL OF RIGHTS 215–30 (1998) (using refined incorporation to argue for and against incorporation of parts of the Bill); RAOUL BERGER, GOVERNMENT BY JUDICIARY 155–89 (2d ed. 1997) (arguing against incorporation of the Bill); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE 92–130 (1986) (arguing for the incorporation of the Bill); Raoul Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 OHIO ST. L.J. 435 (1981) (arguing against incorporation of the Bill). See generally WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT (1988) (reviewing scholarship, examining new sources regarding incorporation, and viewing incorporation from equality angle). 3 See McDonald, 130 S. Ct. at 3028–36. 4 See id. at 3035 n.13. 5 See Miller v. Texas, 153 U.S. 535 (1894) (right to bear arms not incorporated); Presser v. Illinois, 116 U.S. 252 (1886) (same); United States v. Cruikshank, 92 U.S. 542 (1875) (same). 6 See Hurtado v. California, 110 U.S. 516 (1884) (right to grand jury not incorporated). 7 See Apodaca v. Oregon, 406 U.S. 404 (1972) (Sixth Amendment criminal jury unanimity requirement not incorporated). 8 See Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916) (Seventh Amendment right to civil jury trial not incorporated). 9 See McDonald, 130 S. Ct. at 3026–50. \\jciprod01\productn\N\NDL\88-1\NDL104.txt 2012] unknown nonincorporation Seq: 3 6-DEC-12 9:06 161 who concurred under the Privileges or Immunities Clause.10 In the decision, the Court left open the possibility that the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right could be incorporated in the future. It emphasized that in past decisions on the Fifth Amendment grand jury right and the Seventh Amendment civil jury trial right, it had decided against incorporation prior to selective incorporation, similar to the pre-McDonald decisions on the Second Amendment.11 For the remaining right that it had affirmatively decided not to incorporate against the states in the past—the Sixth Amendment criminal jury unanimity requirement—the Court stressed that an odd decision had resulted from the division of the Court in that case.12 Importantly, a “single, neutral pr (...truncated)