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Apodaca, Ramos, Incorporation and Kurt Lash
Michael Ramsey

At Josh Blackman's suggestion, I took a closer look at Apodaca v. Oregon, the 1972 Supreme Court case that found the unanimous jury requirement not to apply to the states, even though the Court had previously found the Sixth Amendment to apply such a rule to the federal government.  (As noted here, the Supreme Court recently agreed to revisit Apodaca in Ramos v. Louisiana).  Professor Blackman also observed that all of the Justices in Apodaca found the unanimous jury requirement to be deeply rooted in U.S. and English history but five of them still managed to find it inapplicable to the states.

So I took a closer look and on further review, I agree: wow, what an embarrassment.  Justice White's plurality (for himself, Burger, Blackman and Rehnquist) acknowledges that the unanimous jury is a long-standing tradition, but in an expressly non-originalist move finds that "Our inquiry must focus upon the function served by the jury in contemporary society."  From that starting point, the plurality concludes that the protected "interest of the defendant [is] in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him" and declares (with essentially no analysis) that this interest "is equally well served" by a non-unanimous jury.  (It seems painfully obvious to me -- even granting that the defendant's interest is properly identified -- that the judgment of the defendant's peers is much more effectively interposed with a unanimity requirement than without one.  But in any event, if the Constitution adopted unanimity as part of its jury requirement, it shouldn't be for Justice White to second-guess that decision, at least not without very powerful reasons.)

Justice Powell's concurrence, providing the fifth vote, at least has a structural argument behind it -- that the Court should not micromanage state criminal procedure but instead let states experiment with different approaches.  That's fine, as long as the Constitution doesn't say otherwise.  But if one accepts incorporation, the point of that aspect of the Fourteenth Amendment was exactly to preempt some state approaches and ensure a national minimum of rights corresponding to the rights held against the federal government.

And Justice Douglas, of all people, wrote a devastatingly formalist dissent.  I predict Apodaca gets overruled 9-0.

From an originalist academic perspective, the bigger question is whether incorporation has adequate originalist foundations.  On this point Kurt Lash (Richmond) has a post at Law and Liberty (thanks to Mark Pulliam for the pointer) and a new article on SSRN.  From the post:

... Although the Supreme Court has been wrong to enforce [the incorporation] doctrine under the Due Process Clause, it would be entirely right to do so under the Privileges or Immunities Clause. Further, doing so would not require reversing Slaughterhouse or open the door to judicial construction of unenumerated rights.

The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.” On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.” On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.” The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”  Finally, in 1871, Bingham explained:

Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . .

Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.

I will link to Professor Lash's article separately, as it deserves a separate post.  The key point, though, is that full incorporation, or something close to it, has solid originalist foundations.  I think the modern center-right Justices -- unlike the center-right Justices of the Apodaca era -- are influenced by this view, as well as by the formalist sense that the Court should not be picking on policy grounds which Bill of Rights rights are incorporated and which aren't.  So again, I think Apodaca's days are numbered.  And originalists should be happy.

UPDATE:  Will Baude comments at Volokh Conspiracy: Unanimous Juries and Incorporation of the Bill of Rights.  

I assume that it is not a coincidence that the cert grant [in Ramos] happened shortly after the Court's decision in Timbs v. Indiana to unanimously incorporate the Excessive Fines Clause against the states. At oral argument in Timbs, Justice Gorsuch seemed to suggest that complete incorporation of the bill of rights was at this point a foregone conclusion. But in the decision in Timbs it became clear that the Justices may not have complete agreement on a theory of incorporation, with the majority extending the Court's current substantive due process precedents, while Thomas takes the more historically accurate path of applying the Privileges or Immunities Clause. As Justice Gorsuch noted in a concurring opinion, in Timbs, nothing turned on the Court's theory of incorporation. And that is probably true in Ramos too. But at some point, it might. ...