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Incorporation of the Bill of Rights

W. Scott Cole

Posted on May 12, 2019 01:14

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I seem to have a theme lately, discussing the amendments in the Bill of Rights. It is accidental, but I see no reason to deviate from it (yet). So, let’s talk incorporation of the Bill of Rights. What does that term mean and how does it affect you and me?

Many people are surprised when you tell them that, from the beginning, the Supreme Court held that the Constitution applied only to the federal government. It was only after ratification of the 14th Amendment in 1868 that the protections of the Bill of Rights were determined to apply to actions of the states towards its citizens.

Even then, there were parts of the Bill of Rights that the Supreme Court ruled were not incorporated through the 14th Amendment to apply to states. The most recent issue of this coming before the High Court was just a few months ago in the case of Timbs v. Indiana, in which the state seized a $40,000 vehicle in a drug case. Mr. Timbs sued under the theory that it was a violation of the 8th Amendment’s prohibition of excessive fines. The state argued that the relevant clause of the 8th Amendment did not apply to state governments. Timbs was the first case to apply the excessive fines clause to the states.

Justice Gorsuch asked during argument why there was even any doubt of the entire Bill of Rights being incorporated through the 14th Amendment to apply to the states. As usual, the answer is not that clear. There are things that the Supreme Court has held not to apply to the states.

One of those things is the right to indictment by a grand jury, which is part of the 5th Amendment; and therein lies the potential for chaos like the courts of all 50 states have never seen.

Every felon in a federal prison was indicted by a grand jury. Very few felons in state prisons have been so indicted. In the states, due process is satisfied by district attorneys directly filing charges in court.

What happens if the right to grand jury indictment is held to apply to the states? So states would now start using grand juries? It’s not that simple.

For starters, the Supreme Court has held that if a law or government action is found to be unconstitutional, it was unconstitutional from day one. That means every state conviction obtained through a direct filing would be in danger of being invalidated. If that happened, state prisons would be almost emptied.

Additionally, everyone with a record could potentially force the courts to expunge their convictions. If the statute of limitations for their crimes had expired, the states would have no way to use a grand jury to indict them for their crimes. Even if they were able to retry them, there would be a very valid double jeopardy argument.

I can think of several theories the government could use to counter these possibilities. I have done no more than describe the battleground that complete incorporation of the Bill of Rights through the 14th Amendment would create. You can be sure the battles would happen.

Just a little something to think about. If you are a judge or lawyer, try not to have nightmares about it tonight.

W. Scott Cole

Posted on May 12, 2019 01:14

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Source: The Guardian

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