Dripps on the 14th Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution

The Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution is a new article by Donald A. Dripps, University of San Diego School of Law. It is forthcoming in the Journal of Contemporary Legal Issues (2009). Here's the abstract:

The theory that the Fourteenth Amendment incorporates the Bill of Rights established the foundation for the Warren Court's "criminal procedure revolution." Long before the Warren Court, however, there had been another criminal procedure revolution. This first revolution worked slowly and incrementally, led throughout the nineteenth century by legislatures rather than by courts. It included an institutional, an intellectual, and a doctrinal component. When it was over - roughly speaking, around the turn of the nineteenth into the twentieth century - the founders' criminal justice system had been altered beyond recognition.

This essay argues that our understanding of the incorporation question can be strengthened by appreciating the first criminal procedure revolution. The ratification of the Fourteenth Amendment took place just as the doctrinal part of the revolution - the authorization of felony prosecutions by information and of testimony by the defendant - was becoming part of the positive law. These doctrinal changes were incompatible with the Fifth Amendment's indictment and self-incrimination clauses, and this incompatibility was recognized by both their proponents and their opponents. Many of the best jurists in the North and West did not understand the Fourteenth Amendment as imposing these clauses on the states.

To say the history of criminal justice in the nineteenth century provides powerful evidence against the incorporation theory is not to say that this evidence is dispositive. There is evidence on all sides of the incorporation controversy, and how to weigh it is something reasonable people continue to contest. All I claim here is that, however we understand the appeal to the original understanding, the first revolution presents powerful evidence against incorporation of the grand jury and self-incrimination clauses of the Fifth Amendment, and by implication against any theory of total incorporation.