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Article
Un-Incorporating the Bill of Rights: The Tension Between The Fourteenth Amendment and the Federalism Concerns that Underlie Modern Criminal Procedure Reforms.
Journal of Criminal Law and Criminology (2008)
  • Justin F. Marceau
Abstract

The selective incorporation of the Bill of Rights through the Fourteenth Amendment is the hallmark of modern criminal procedure. After nearly fifty-years, however, it is time to critically reflect on the continued vitality of what has become an unquestioned principle of constitutional hornbook law. This Article confronts the fact that there has been a sea change in the Court’s approach to questions of federalism, ultimately concluding that reforms like the AEDPA require a return to local control that is inconsistent with the concept of constitutional incorporation and the uniformity it requires.

Earlier this term in Danforth v. Minnesota, the Court signaled for the first time in almost two decades a willingness to debate openly the question of whether uniformity and supremacy remain the defining tenets of federal constitutional interpretation vis-à-vis the states. This article provides the first comprehensive framework for evaluating the Court’s federalism jurisprudence, particularly in the field of criminal procedure, in light of the historical underpinnings and analytic justifications for the doctrine of constitutional incorporation.

Keywords
  • Selective Incorporation,
  • AEDPA,
  • Federalism,
  • Atkins,
  • Stone v. Powell
Disciplines
Publication Date
Fall 2008
Citation Information
Justin F. Marceau. "Un-Incorporating the Bill of Rights: The Tension Between The Fourteenth Amendment and the Federalism Concerns that Underlie Modern Criminal Procedure Reforms." Journal of Criminal Law and Criminology (2008)
Available at: http://works.bepress.com/justin_marceau/3/