Initially, the Constitution had only a few provisions relating to the administration of criminal law. As originally constructed, the Bill of Rights, the first ten Amendments to the Constitution, was created to check national governmental powers. For nearly two hundred years, the Bill of Rights was seen primarily as binding upon the federal government. That is, it was commonly maintained that the Bill of Rights was not applicable to the states. This ideology was created by several beliefs. Primary among them was the American government’s staunch belief in states’ rights, partly due to the belief that local governments are easier for the people to control and influence, and partly because it represented a compromise to the Southern slavocracy regarding the maintenance and institutionalization of slavery in that region. Two hundred years of what may now be characterized as conservative political behavior also have influenced state’s rights advocacy. While the adoption of the Fourteenth Amendment in 1868 significantly extended federal constitutional controls over the actions of state governments, several additional points must be addressed concerning the issue of states’ rights, for this issue was central to the nationalization of the Bill of Rights.
State courts will undoubtedly decide issues of federal law. When they do, the Supreme Court of the United States has the power to review their decisions. The United States Constitution makes the power of the Supreme Court clear in this regard by Article VI which reads: ‘This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, and any Thing in the Constitution or Laws of any state to the Contrary notwithstanding . . . ‘ While Article VI appears to provide clarity on the issue of states’ rights where the courts are concerned, the power of the Supreme Court to review cases at the state level has been constantly challenged. The Supreme Court’s power to review, and more importantly to reverse, decisions at the state level was ‘in fact one of the first great issues of federal-state conflict in this country. Some states and their courts, . . . bitterly resisted such review by the Supreme Court as an intrusion on their independence.‘
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The states’ rights argument held that the highest court in each state was fully capable of interpreting and applying federal law without supervision from federal government authorities. Besides, the argument continued, did Americans not just win a war to be free from such despotic intrusions? Also, did not the United States Constitution imply that by appointing courts at the state level, that state courts were competent in interpreting federal law? Does the mere presence of a Supreme Court, a ‘big brother‘ by today’s standards, anticipate either incompetence or abuse, or both, at the state level? If this is the case, is that any way to operate a court of law? Does not the anticipation of abuse and/or incompetence by the state court strip these courts of any real power?
Are the questions posed above interesting? Certainly. Are they relevant? Apparently so. Do they possibly give rise to sophisticated legal philosophies? Perhaps. The First Congress, however, sought to put an end to such legal speculation with one of the very first statutes it enacted. The Judiciary Act of 1789, written primarily by Oliver Ellsworth of Connecticut, who later became Chief Justice of the Supreme Court, gave the Supreme Court of the United States power to review state decisions regarding federal questions. Though the Supreme Court was provided for in the United States Constitution, it (the Court) did not exist at the time. Does it therefore follow that American leaders, who not long before the Judiciary Act of 1789, sought to end governmental oppression and limit the power of national government, were in fact guilty of practicing governmental tyranny themselves? One might suggest, as many states’ rights advocates did, that the federal government was against despotism only if they were not the ones benefiting from it.
However, as mentioned earlier, one of the prerequisites of a civilized nation is fairness to all in the dispensation of law. One might counter the states’ rights view by suggesting that there must be uniformity in the administration of federal law. For if the administration of law is to differ drastically from state to state, and these interpretations cannot be reviewed by the federal government, then what exists is not federal law but state level interpretation of federal law—two extremely different, and at times diametrically opposed legal entities.
Clearly, state court interpretation of federal laws must have supervision if there is to be any semblance of uniformity. There must be uniformity in the application of federal law if there is to be fairness for all people. Left solely within the purview of state governments, federal law becomes more like state law in which redress, especially in cases where federal law has been blatantly violated, simply is not possible.
To avoid the hundreds, if not thousands of different interpretations and applications of the same federal laws at the state level, the Bill of Rights had to be nationalized. One of the greatest ironies in regards to the nationalization of the Bill of Rights is that while the Bill of Rights intended to limit the power of the federal government where the administration of law was concerned, it apparently increased the power of the federal government, due in part to Article VI and the Fourteenth Amendment.
There appear to be two integral and interconnected segments of legal philosophy that form the basis for the nationalization of the Bill of Rights. The first, as addressed previously in this paper, deals with states’ rights issues concerning guarantees in the Bill of Rights that had to be made applicable to the state proceedings. The first criminal guarantee made applicable to the states was the
Powell v. Alabama
case in 1932. The second concerned a more expansive or liberal interpretation of individual rights found in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. An expansive interpretation of the Constitution’s criminal procedure guarantees, however, is not new. In fact, few interpretations are as broad as the expansionist decision concerning the Fourth Amendment in
Boyd v. U.S.
(1886).
What has emerged, historically, in the debate over the nationalization of the Bill if Rights are three primary viewpoints: 1) Fundamental Rights; 2) Total Incorporation; and 3) Selective Incorporation. The Fundamental Rights interpretation ‘finds no necessary relationship between the content of the Fourteenth Amendment and the guarantees of the Bill of Rights.‘
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This viewpoint held sway from [Hurtado (1884)], until the early 1930’s, when the Supreme Court began to show more interest in criminal proceedings. The Total Incorporationist viewpoint argued that the Fourteenth Amendment should be more broadly interpreted so as to incorporate the entire Bill of Rights, without reaching any further. This would make all of the guarantees of the Bill of Rights applicable to state proceedings.
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The Selective Incorporationist viewpoint ‘ . . . accepts the basic premise that the Fourteenth Amendment encompasses rights that are ‘of the very essence of the scheme of ordered liberty.‘
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This view, advanced by Justice Brennan in 1961, also recognizes that not all rights enumerated in the Bill of Rights are necessarily fundamental and that others may be fundamental even though they are not found in the first eight Amendments.
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In the early 1930’s, the court recognized that elements of some of the rights guaranteed by the first Eight Amendments were also protected by the Fourteenth Amendment.
Powell v. Alabama.
(1932). This was an important change in direction for the court because it was one of the first steps away from the Fundamental Rights interpretation and towards a more expansionist interpretation of the Bill of Rights and the Fourteenth Amendment .
Over the past three decades, as a result of the arrival of what may now be characterized as a liberal Supreme Court in the 1960’s, laws governing criminal procedure have undergone an extensive change due in large part to a more systemic expansionist interpretation of the Bill of Rights and the Fourteenth Amendment. This process was carried out in part by a more liberal interpretation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments in particular. As a result, the Fundamental Rights viewpoint lost majority support.
The Warren Court (i.e. The Court of Chief Justice Earl Warren), put into place more expansive interpretations of the said Amendments and thus provided an impetus for the opening of the floodgates where the nationalization of the Bill of Rights is concerned. This had a major impact upon criminal cases, calling into question the conduct of government authorities and agents, (in particular, abuses perpetrated by police officers), as well as a defendant’s right against self-incrimination and the right to a fair trial. As well, investigative aspects of the criminal justice system were more tightly scrutinized by the courts. The right to legal counsel, made a national issue in part due to the infamous
Powell v. Alabama
and
Norris v. Alabama
cases respectively, also received greater attention. In short, every major stage of the criminal justice process is today subject to significant constitutional standards developed in the past 35 years.
The Selective Incorporation approach found fundamental the following Bill of Rights guarantees: the freedom from unreasonable searches and seizures and the right to have excluded from criminal trials any evidence obtained in violation thereof,
Mapp v. Ohio
(1961), and
Ker v. Cal.
(1963); the privilege against self-incrimination,
Malloy v. Hogan
and
Miranda vs. Arizona
(1964); the guarantee against double jeopardy,
Benton v. Md.
(1969); the right to the assistance of counsel,
Gideon v. Wainwright
(1963) and
Escobedo v. Illinois;
the right to a speedy trial,
Klopher v. N.C.
(1967); the right to jury trial,
Duncan v. La.
(1968); the right to confront opposing witnesses,
Pointer v. Tex.
(1965); the right to compulsory process for obtaining witnesses,
Washington v. Tex.
(1967); and the prohibition against cruel and unusual puni
shment, Robinson v. Cal.
(1962).
One of the benefits of more expansive interpretations of both the Bill of Rights and the Fourteenth Amendment is that abuse by government authorities possibly becomes grounds for the reversal of a conviction. While it is not clear that more expansive interpretations actually decrease abuses by government authorities, namely police officers, prosecutors and magistrates, expansionist interpretations appear to provide some remedy to government corruption. Obviously, others will argue that ‘criminals‘, that is those who are convicted of crimes, may be set free by liberalizing the Bill of Rights and the Fourteenth Amendment. Frankly, some who commit crimes will go free under the expansionist doctrine. However, one must ask several questions in this regard: 1) Are American citizens ready to sacrifice civil liberties by allowing the police and other federal agents to show a callous disregard for the United States Constitution in pursuit of evidence or apprehension?; 2) Isn’t it true that some people who commit crimes will go free even if the interpretation of the Bill of Rights and the Fourteenth Amendment are more restricted?; There is no evidence to quantify the assertion that more restricted interpretations result in higher ratios of indictments and convictions; and 3) Is it not true that expansionist interpretations arose from the abuses of federal and state officials in general, and especially from the abuses of state and local police officers?
As Supreme Court rulings become more expansionist, the administrative burdens placed upon the criminal justice process increase substantially. More money has to be spent to handle the increase in appeals and hearings. More government lawyers must be hired. More court personnel must be hired. The list continues. As a result, many might suggest that the expansionist view is not cost-effective. In fact, some could argue that said view puts additional stress on an already over stressed criminal judicial system whose results cannot but be excessive plea bargaining. It is difficult to argue with budgetary concerns at a time when deficits seem insurmountable and grow by millions of dollars each day. Yet, on the other hand, budgetary concerns pale in comparison to administering justice. That is, it is simply wrong for the courts to consider budgetary concerns over and above the pursuit of justice, which is its exclusive concern. This is not to suggest that there can be courts without the financial wherewithal to run them. What is brought into question here are both the priorities and the purpose of courts. For example, what if an individual has been convicted of murder in a state where his/her particular crime is punishable by the death sentence, yet the individual was found to be legally innocent during his/her third appeal? If the individual convicted uses every legal means at his/her disposal and costs the state one million dollars, were the administrative costs too high? Should there be some cut-off above which the state and federal governments will no longer pay court costs for indigents convicted of a crime? Does this not lead to a greater gap between the haves and the have-nots?
Nothing is more important than the truth. T he criminal justice system has many responsibilities, yet the most important is the discovery of truth. Theoretically, budgetary concerns are not within the purview of the courts, though politics and the criminal justice system are inseparable, particularly where finances are concerned.
Finally, the expansionist doctrine that led to the nationalization of the Bill of Rights had benefited the pursuit of true democracy. When interpretations are restricted, so to are the legal remedies of those accused and convicted of crimes. It is not the existence of expansionist interpretations that may help a ‘criminal‘ go free. What in many cases causes the administrative burdens placed upon courts in regards to expansionist interpretations of the Bill of Rights and the Fourteenth Amendment are abuses perpetrated by government authorities that run counter to the United States Constitution. In the real world, it is as important for those who are called upon to protect and serve to obey the laws set forth in the Constitution as it is for those who are convicted.