Un-Incorporating the Bill of Rights: The Tension between the Fourteenth Amendment and the Federalism Concerns that Underlie Modern Criminal Procedure Reforms
Justin F. Marceau
University of Denver Sturm College of Law
January 23, 2009
Journal of Criminal Law and Criminology, Vol. 98, No. 4, 2009
U Denver Legal Studies Research Paper No. 09-02
This Article addresses the relationship between Section 2254 of the Anti-Terrorism and Effective Death Penalty Act and the Fourteenth Amendment. There is a substantial body of literature that either laments or celebrates the rigid limitations on relief imposed on state prisoners attempting to vindicate their federal constitutional rights in federal court. In a series of cases beginning with Williams v. Taylor, the Court has left little doubt that patently incorrect interpretations of the United States Constitution do not necessarily warrant relief under the applicable provision of the habeas corpus statute, Section 2254. The question remains, however, whether such limitations on the ability of federal courts to enforce the federal Constitution represents a constitutional problem.
This Article is the first attempt by a commentator to reconcile Section 2254 with the Fourteenth Amendment, ultimately concluding that Section 2254, as currently applied, is inconsistent with the Fourteenth Amendment's incorporation doctrine. The hallmark of incorporation under the Fourteenth Amendment, or more precisely, selective incorporation, is the promise that constitutional rights must apply with the same force and breadth in each of the fifty states, a promise that is impossible to realize under the strictures of Section 2254. Because Section 2254 impedes the ability of federal courts to apply the federal Constitution to constitutional claims - e.g., the Sixth Amendment right to counsel-there appear to be serious Fourteenth Amendment concerns that have previously gone unexplored. Because of the limitations on relief for incorrect applications of the Constitution imposed by Section 2254, and in view of the nature of certain of the rights announced in the Bill of Rights, this Article posits that the constitutional criminal procedure rights have been sub silentio un-incorporated.
Number of Pages in PDF File: 75Accepted Paper Series
Date posted: January 24, 2009 ; Last revised: March 22, 2012
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