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Article Excerpt
Judicial self-restraint which defers too much to the sovereign powers of the states and reserves judicial intervention for only the most revolting cases will not serve to enhance Madison's priceless gift of "the great rights of mankind secured under this Constitution."
--Justice William J. Brennan, 1961 (1)
Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination.... The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.
--Justice Felix Frankfurter, 1953 (2)
The selective incorporation of the Bill of Rights through the Fourteenth Amendment is the hallmark of modern criminal procedure and represents a turning point in our nation's collective understanding of federalism. (3) By incorporating the Bill of Rights--both as to non-criminal rights such as free speech, (4) and as to criminal rights such as the right to counsel (5)--the Supreme Court sent a clear message to the states: the protections afforded to individuals under the Bill of Rights applied with equal force to state and federal governments. (6) Concerning the protection of rights enshrined in the Bill of Rights, incorporation and the Supremacy Clause required that "the states were to receive no greater deference for their judgments than the federal government." (7) This was consistent with the view of Alexander Hamilton that, particularly in the case of federal rights that are locally unpopular, the "local spirit may be found to disqualify the local tribunals for the jurisdiction of national cases." (8)
Recently, however, the Supreme Court's understanding of the relationship between state and federal courts regarding questions of federal constitutional law has strayed from the first principles of incorporation. The Court's federalism jurisprudence is so fractured as to defy a coherent narrative. The Supremacy Clause continues to be given the utmost force in the context of federal preemption, (9) but the Supreme Court's unwillingness to insist on a meaningful and uniform application of federal rights, in particular constitutional criminal procedure rights, calls into question the vitality of incorporation as a principle of hornbook constitutional law. (10) The most anticipated federalism decision of the 2007 term, Danforth v. Minnesota, (11) was illustrative of the confusion that surrounds the future of constitutional criminal procedure in general, and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) in particular. (12) In a surprising twist of alliances, Justices Roberts and Kennedy dissented from the seven-member majority's refusal to hold that state courts were constitutionally bound to the rules of retroactivity applicable to federal habeas corpus decisions; the two Justices dissented on the grounds that the role of federal courts in ensuring the uniform application of federal law is a "bedrock" principle of federalism. (13) Notably, both the majority and the dissent agreed that rules of constitutional law dictate uniformity; the disagreement arose as to whether the Court's retroactivity jurisprudence was of constitutional magnitude. (14) This Article sets out to unpack the tension between the view shared by all nine Justices in Danforth that the Supremacy Clause of the Constitution dictates that federal rights be applied uniformly and without exception by all state courts; and the Court's adjudication of the constitutional rights announced in the Fourth, Fifth, Sixth, and Eighth Amendments. (15)
Stated another way, a half-century has passed since the Bill of Rights began to be incorporated through the Fourteenth Amendment, (16) and it is useful to consider whether the fundamental rights announced in the first eight amendments to the Constitution continue to enjoy as much force, effect, and supremacy when applied against the states as they do when applied to the federal government. (17) Recent legislation and federal cases suggest that, at least with respect to the constitutional rights of criminal procedure, there is a movement afoot that defies the black letter conception of incorporation and instead favors deference to local interpretations of the Bill of Rights. That is to say, an argument can be made that the criminal procedure rights are being, if not radically un-incorporated, gradually rendered less effectual.
This Article examines the Court's willingness to tolerate, indeed endorse, localized applications of the constitutional amendments regarding the rights of criminal defendants, and contrasts this with the Court's continued adherence to the principle that it is the Court's "role under the Constitution as the final arbiter of federal law, both as to its meaning and its reach, ... to ensure the uniformity of that federal law." (18) Because the Court continues to describe glowingly the supremacy of federal pronouncements in the field of criminal procedure, the question necessarily arises whether the Court's Fourteenth Amendment (incorporation) and Supremacy Clause jurisprudence are compatible with the limitations imposed on criminal defendants attempting to vindicate their federal rights. (19) Recognizing that federal habeas corpus proceedings may be the best, and in some instances the only, vehicle available for ensuring state court adherence to the Constitution, this Article devotes significant attention to the correlation between the availability of federal habeas corpus relief and the ability of a defendant to vindicate his constitutional rights. (20)
As a matter of history, many fundamental criminal procedure rights were discovered and announced on federal habeas corpus review. As a practical matter, the fact that writ-of-error review as of right no longer exists dictates that the Supreme Court, through its discretionary certiorari jurisdiction, will rarely exercise jurisdiction over state criminal convictions. Accordingly, by curtailing substantive federal review of claims asserting federal constitutional rights in the habeas context, the federal rights themselves are, for all intents and purposes, no longer under the guardianship of the federal system, and instead are largely left to the discretion of state courts. (21) That is to say, legislation and case law, working in tandem, have begun to substantially undermine the principle that was at the core of the incorporation doctrine--that states were to receive no greater deference than the federal government in adjudicating the Constitution. (22) Nonetheless, after exploring the tension between recent criminal procedure reforms and the Fourteenth Amendment, as interpreted by the Supreme Court, this Article suggests that it is an open question as to whether the unincorporation (or shrinking) of federal criminal procedure rights will help more than it hurts criminal defendants. (23)
I. INTRODUCTION
When people proclaim that they know their "rights," they are often referring in some general way to the Bill of Rights. (24) As Professor Akhil Amar has observed, persons asked about their rights or privileges as U.S. citizens will almost invariably "invoke rights that are explicitly declared in the Bill of Rights.... " (25) The rights to speech, religion, a fair trial, and to be free of cruel and unusual punishment, to name but a few, are viewed as synonymous with citizenship. (26) However, at least for the first century and a half of our constitution's history, the rights announced in the Bill of Rights were illusory as applied against the states. Until the middle of the twentieth century, an individual could not complain that his rights under the first ten Amendments were being violated by a state or local government; the Bill of Rights applied only to regulate the behavior of the federal governments. (27)
In Barron v. Baltimore, Chief Justice John Marshall considered the question of whether the Bill of Rights applied to the states as well as the federal government. (28) In Chief Justice Marshall's view, the question was "of great importance, but not of much difficulty." (29) In ruling that the Fifth Amendment's prohibition on the taking of private property for public use without just compensation did not apply to state or local governments, Marshall reasoned that "[t]he [C]onstitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states." (30) Explaining further, Marshall added:
Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had [C]ongress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language. (31)
To be sure, Marshall's interpretation of the Bill of Rights was not an unprincipled limitation on the rights of individuals. (32) The enactment of the Fourteenth Amendment, however, provided the Court with a new lens through which to view this question of "great importance." By the mid-1960s, the Court had abandoned the framework set forth in Barron and ruled, instead, that (most of) the Bill of Rights was incorporated so as to apply against the states by virtue of the Due Process Clause of the Fourteenth Amendment. (33) That is to say, the Court adopted a position akin to the now mainstream view that the Bill of Rights applied against the states, (34) and over time held that the Fourteenth Amendment "impose[s] upon the states all of the [criminal] procedural guarantees of the Bill of Rights except for the grand jury indictment and civil jury trial requirements." (35)
Any suggestion that the Court will hold that the incorporated Bill of Rights no longer applies to the states is unfounded, even foolish. (36) Nonetheless, there exists a growing body of court opinions that sanctions legislative calls for deference to the adjudications by state courts of federal rights. The Court's evolving conception of federalism is, to be sure, confused, (37) but the waning practical force of the Warren Court's incorporation decisions is beyond question. (38) Even if the phrase unincorporation is a touch hyperbolic, the premise certainly merits consideration.
Accordingly, it is worth beginning a dialogue about the status of selective incorporation as a doctrine of constitutional law by examining the sort of illustrative examples of judicial abdication that characterize modern federal review of state interpretations of the Fourth, Fifth, Sixth, and Eighth Amendments. (39) This Article explores the question of whether judicial deference to state judgments in the context of habeas corpus signals what has come to look like the beginning of a criminal procedure counterrevolution, (40) and provides examples of statutes and precedents that are illustrative of the growing acceptance of deference to state court judgments on questions of federal constitutional criminal procedure law. Although there are many limitations on the availability of remedies for constitutional harms, as with all questions of law, reasonable lines must be drawn. This Article argues that the disuniformity generated by the certain criminal procedure reforms is sufficiently substantive as to be impermissible as a matter of Fourteenth Amendment and Supremacy Clause jurisprudence.
First, the most direct and express act of un-incorporation in the habeas corpus context is a Burger-era opinion, Stone v. Powell. (41) Although the holding in Stone that the Fourteenth Amendment does not incorporate the Fourth Amendment for purposes of collateral review is now accepted as relatively uncontroversial, (42) this opinion marked a radical departure from the Warren Court's incorporation doctrine. (43) If, as Justice Brennan stressed in his dissent, habeas corpus is the foremost vehicle for raising constitutional errors, (44) the Court's refusal to disturb a state court judgment despite a glaring violation of the Fourth Amendment is indicative of the dwindling force enjoyed by incorporated rights fifty years after selective incorporation began.
The second and third illustrations focus on a specific provision of AEDPA. (45) Under [section] 2254(d), a federal court may not grant a writ of habeas corpus unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law...." (46) Focusing on the "unreasonable application" and the "clearly established" law prongs of this requirement, this Article examines the force of AEDPA in requiring a level of deference that is in fundamental tension with the spirit and rationale of incorporation. To illustrate the conflict between AEDPA and incorporation, I will focus on one example arising under the Fifth Amendment (47) and one example arising under the Sixth Amendment. (48)
The fourth example, though illustrative of the broader trends in this area of law, is specific to a particular Eighth Amendment claim. The analysis focuses on the Court's holding in Atkins v. Virginia that executing the mentally retarded constitutes cruel and unusual punishment. (49) Of particular relevance is the fact that federal courts have, at the urging of the Supreme Court, left to each individual state the task of defining by statute what constitutes mental retardation. (50) In other words, Atkins provides an example of a situation in which the Court recognizes that the Eighth Amendment as incorporated through the Fourteenth Amendment provides a substantive right to defendants, and that the scope of that right may be defined by the state. In essence, the Eighth Amendment protections apply to each state, but each state is allowed to define the substance of the right in a slightly different manner.
Finally, the Article concludes by analyzing whether this new era of incorporation, which prioritizes a formalistic rather than substantive adherence to the doctrine of selective incorporation, is more or less beneficial to persons charged with crimes than was the previous regime. This Article draws on scholarship suggesting that the robust procedural rights afforded to defendants by the Court have worked proportionately greater substantive and procedural harms on defendants over the long term. The question is whether recent reforms, though antithetical to constitutional incorporation, might trigger bold and progressive experimentation by the states. (51)
II. INCORPORATION GENERALLY: THE RATIONALE AND THE FUNCTION
A. DEFINING THE DOCTRINE
In order to assess the impact of recent actions by Congress and the Court on the doctrine of incorporation, it is necessary first to set forth with clarity the purpose and history of incorporation. The analysis of whether the current scope and application of the constitutionalized criminal procedure rights are in tension with the concept of incorporation must begin with a precise working definition for incorporation. (52)
Properly understood, constitutional incorporation is a vehicle by which fundamental rights protected by the Constitution are nationalized. It is a doctrine grounded in pragmatic concerns about the importance of ensuring reasonable parity between constitutional rights and the availability of a remedy, and premised on the idea that the uniform application of the Bill of Rights must be given priority over local control and self-government. (53) As Professor Israel has explained, selective incorporation was justified on the theory that these rights were of such national and fundamental concern as to "outweigh[] considerations of judicial self-restraint and deference to the values of local control." (54)
Accordingly, one of the most useful ways of defining the doctrine is to explain what it is not: the incorporation of the Bill of Rights through the Fourteenth Amendment is not consistent with an expansive view of federalism that permits local experimentation and discretion on the part of state governments and courts. (55) This is not, however, to suggest that no affirmative definition of incorporation is available. For present purposes, incorporation can adequately be explained as the process by which selected rights are applied consistently and with equal force to the federal government and each of the states. Under this definition, "once a provision of the Bill of Rights has been held applicable to the States by the Fourteenth Amendment, it ... appl[ies] to the States in full strength." (56) There cannot be, in other words, a federal right and then various subjective applications (or "watered-down" versions) of this right across the states. (57)
In large part, the recognition that an incorporated right must be applied with some base line of uniformity (a federal floor) is a product of the relationship between the Supremacy Clause and all provisions of the Constitution. The doctrine of selective incorporation announced by the Warren Court, (58) and embraced by all subsequent Courts, provides that most provisions contained in the Bill of Rights apply to the states, and the Supremacy Clause dictates that all constitutional rights apply, as much as is practically possible, without variation between the states. (59) The concept of incorporation, therefore, cannot countenance deference to states as to the substance and content of the incorporated right. (60) Thus while the rights afforded to a defendant may vary as a matter of state law, a defendant's rights under the Federal Constitution should not vary according to the local whims and subjective political climate of a particular state. (61)
Although this Article ultimately acknowledges that the Warren Court's approach to constitutional rights was not infallible and recognizes that moving away from incorporation might be good for the rights of defendants, it also posits that the time has come for the Court to clarify its Fourteenth Amendment jurisprudence. If the Constitution mandates a uniform application of federal rights, the tension with criminal procedure reforms like AEDPA must be squarely addressed by the Court. As it stands, the intellectual integrity of the "umpiring" (62) that Chief Justice John Roberts has recently announced as a first principle of adjudication is nowhere to be found in the Court's federalism jurisprudence regarding the scope and effect of federal constitutional rights. Within a several month period, Chief Justice Roberts has joined opinions that excoriate federal circuit courts for requiring state courts to apply federal law in manner consistent with federal interpretation, (63) and he has simultaneously written an opinion stressing that it is nothing short of "startling" for the Court to consider allowing variation or "disparate" interpretations of the "same Federal Constitution[al]" questions. (64) If the constitutional rights of criminal procedure no longer apply with full and uniform force against the state governments, the doctrine should be declared defunct. (65)
B. TRACING THE EVOLUTION OF INCORPORATION
Only by tracing the birth and evolution of constitutional incorporation is it possible to assess the veracity of one of this Article's central assertions: that incorporation is diametrically opposed to the sort of local control and deference to state courts that characterizes modern criminal procedure. (66) With an understanding of the origins and evolution of the concept of incorporation in place, it is possible to meaningfully debate whether specific congressional legislation and Supreme Court decisions have sub rosa undermined the spirit and purpose of incorporation. (67)
In Justice Brennan's view, there is no more significant rule of constitutional law than that of incorporation, (68) and given his defining role in the development of this doctrine, Justice Brennan's definition of incorporation seems an appropriate place to begin. Brennan defined it as the rule that:
[T]he citizens of all our states are also and no less citizens of our United States, that this birthright guarantees our federal constitutional liberties against encroachment by governmental action at any level of our federal system, and that each of us is entitled to due process of law and the equal Protection of the laws from our state governments no less than from our national one. (69)
Of course, understanding how (and which of) the Bill of Rights would be made applicable to the states via the phrase "due process of law" requires a dose of constitutional history.
When the Bill of Rights was proposed in 1789, Congress voted on and rejected an amendment offered by James Madison designed to limit the powers of the state governments. (70) The original Bill of Rights simply did not "vest[] citizens with rights against states." (71) Not surprisingly, then, Chief Justice Marshall held that the Bill of Rights only applied as a limitation on the power of the federal government and did not serve any limiting function on the individual states. (72) But the events leading up to the Civil War exposed, once and for all, the fundamental disconnect that may occur when a constitutional democracy founded on notions of certain inalienable rights trusts the protection of these rights entirely to the local populations. As Professor Tribe has put it, the view that basic rights were adequately safeguarded by the states as the "level of government closest to the people ... [was] impossible to maintain after the great battle over slavery had been fought." (73)
In direct response to the previous abuses by states, and to a well-founded fear that the southern states would continue their history of oppression, in 1868 Congress enacted the Fourteenth Amendment. The plain language of the amendment ushered in a new era in our nation's understanding of federalism and in the protections afforded to individuals:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (74)
But the scope of the protections provided under the Fourteenth Amendment would not be fully understood for another century, as the Court wrestled with various interpretive methods and approaches.
One of the first interpretive steps taken by the Court was to clarify that individuals did not gain protections enshrined in the Bill of Rights by virtue of the Privileges or Immunities Clause of the Amendment. (75) Although this position has periodically come under substantial and reasoned criticism, as of today the privileges or immunities of U.S. citizenship do not guarantee protections under the Bill of Rights. (76) For the most part, this debate has been largely irrelevant from a practical standpoint, insofar as the Court has, to varying degrees and based on differing rationales, provided for many of the first eight Amendments to apply against the states by virtue of the Fourteenth Amendment's Due Process Clause.
Setting aside debates about the Privileges or Immunities Clause, the history of incorporation is best understood in terms of the two directly opposed analytical approaches to incorporation, and the quasi-compromise position that became the law of the land. Not surprisingly each of the three approaches was championed by a separate Justice, and each now enjoys a fairly tidy shorthand reference. The first of the three major theories of incorporation was urged by Justice Felix Frankfurter and has come to be known as the "fundamental fairness" approach to incorporation. (77) The second is referred to as "total incorporation" and was suggested by Justice Hugo Black. (78) The prevailing approach, "selective incorporation," which had aspects of both of the other two understandings of incorporation, was invented and implemented by Justice William Brennan. (79)
From the perspective of understanding its practical application, though not its analytic underpinnings, the most straightforward of the three approaches was the total incorporation thesis. Under total incorporation, the Fourteenth Amendment "made applicable against the states each and every provision of the Bill, lock, stock, and barrel." (80) Total incorporation, which was famously and repeatedly argued for by Justice Black, actually may have its origins in the Slaughter-House Cases, the Supreme Court's first foray into Fourteenth Amendment interpretation. (81) In his dissent from the Slaughter-House opinion, Justice Bradley argued that a legislature's decision to grant a monopoly to a single slaughter-house operator was not a reasonable regulation insofar as it constituted "an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty." (82) Commentators have noted that Justice Bradley's expansive vision of the right to "personal liberty" against the states may have included all of the Bill of Rights. (83) However, Bradley's dissent did not gain traction with the Court and the notion of total incorporation substantially disappeared from the Court's consciousness, until Black's "heroic re-examination and resurrection" of the concept in 1947. (84)
In his dissent from the Court's opinion in Adamson v. California, Justice Black provided the most famous presentation of the total incorporation model. (85) In Adamson, Black set forth his simple formula: if a right is protected under the Bill of Rights, the right applies with equal force against the policing conduct of the states. (86) Scholars have accurately labeled Black's model as "mechanical." (87) In essence, "Black's approach simply prejudges the issue [as to whether a certain provision is incorporated] by deciding wholesale ... [that] all the Bill's privileges and immunities" apply to the states. (88)
The second analytic framework for understanding the relationship between the Bill of Rights and the Fourteenth Amendment is known as the fundamental fairness approach. Although this approach found its most famous defense in the opinions of Justice Frankfurter, (89) the fundamental fairness framework was also accepted by a majority of the Court as the law of the land for nearly a full century after the enactment of the Fourteenth Amendment. (90)
At bottom, the fundamental fairness analysis is in direct tension with total incorporation because, as Justice Frankfurter explained, it requires the Court to recognize that there is no inherent or necessary relationship between the rights announced in the Bill of Rights and the requirement of due process provided for in the Fourteenth Amendment. (91) Under this view, the Fourteenth Amendment does not automatically extend the specific provisions of the Constitution that act as limitations on the power of the federal government; instead, the Fourteenth Amendment is understood to have an "independent potency," unencumbered by the Bill of Rights. (92) Accordingly, in any given case, the Fourteenth Amendment may apply against the states in a manner that tracks the application of the Bill of Rights to the federal government, but this will not always be the case. (93)
According to the fundamental fairness doctrine, the Fourteenth Amendment "requires only that states honor basic principles of fundamental fairness and ordered liberty--principles that might ... overlap wholly or in part with some of the rules of the Bill of Rights." (94) As Justice Frankfurter articulated the doctrine, the Fourteenth Amendment provides protections "for all those rights which the courts must enforce because they are basic to our free society." (95) Inherent in this conception of incorporation is the idea that due process and the "ordered liberty" it requires is a rather general and flexible concept. (96)
It is fair to say that the fundamental fairness doctrine, by virtue of its hostility to rigid rules and rights, focused on generalized notions of fairness and did not regard strict compliance and consistency of interpretation among the states and the federal government as an essential aspect of the relationship between the Bill of Rights and the Fourteenth Amendment. (97) The constitutional rights were said to apply to the states, but a sort of built-in margin of error or layer of deference was encompassed within the fundamental fairness review. Illustrative of this perspective is Justice Harlan's opinion in Gideon v. Wainwright. (98) Justice Harlan agreed with the Court's holding that indigent defendants had a constitutional right to counsel; however, in Harlan's view the right to counsel derived from general liberties embodied in the concept of due process, and not from the Sixth Amendment right to counsel. (99) Because the right to counsel, as envisioned by Justice Harlan, was predicated on the vagaries of due process, which would vary by situation, Harlan strenuously objected to the creation of a uniform and nationally applicable right to counsel. (100)
Obviously, Justice Harlan's view did not prevail, and today one of the most sacred rights bestowed upon defendants is the right to effective assistance of counsel under the Sixth Amendment. (101) More importantly, the majority opinion in Gideon also reflects an important trend away from fundamental fairness in the Court's Fourteenth Amendment jurisprudence. (102) As Justice Brennan noted, the Gideon opinion dealt "a devastating blow to an ad hoc, fundamental fairness approach to the application of the Federal Bill." (103) Indeed, it was the Court's discomfort with ad hoc and potentially varying interpretations of fundamental rights that led it to adopt the alternative doctrine proposed by Justice Brennan, selective incorporation. (104)
It was the idea that the Fourteenth Amendment only required that the states comply with the core of certain fundamental rights that ultimately led to the demise of the fundamental fairness approach. The notion that certain "watered-down" or varied interpretations of the Bill of Rights were permitted among the states was decisively rejected by the Court. (105) In detailing his decision to break from the precedent of fundamental fairness and its tolerance for a reasonable margin of differentiation in the application of the Bill, Justice Brennan explained that once a right had been incorporated or nationalized, the Constitution mandated that it apply "to the states with the full federal regalia intact." (106) There were not, in other words, any grounds for deferring to a state court's application of a "lesser version of the same guarantee as applied to the Federal Government." (107)
The Warren Court's break from fundamental fairness was, then, more than anything else, a product of the Court's complete repudiation of the notion that federal rights "need not apply with the same breadth or scope in state courts." (108) In departing from the fundamental fairness doctrine, however, the Court did not simply reverse itself and adopt Justice Black's total incorporation model. Instead, the Court embraced the doctrine of selective incorporation announced by Justice Brennan.
As a compromise, however, selective incorporation was hardly a true "middle course" between the two extremes. (109) While selective incorporation is a doctrine with elements of both fundamental fairness and total incorporation, Justice Brennan's allegiance to the total incorporation thesis was hardly a secret. (110) It has been suggested that selective incorporation "was simply Brennan's polite way of achieving total incorporation by indirection, clause by clause, without having to overrule pre-Warren Court precedent repudiating Black...." (111) Perhaps the strongest support for this understanding of selective incorporation is that "Brennan and his brethren never met a right in the Bill they didn't like or deem fundamental enough to warrant incorporation." (112)
But it would be a serious mistake to merely equate Black's total incorporation model with Brennan's selective incorporation doctrine simply because Justice Brennan appeared ready to hold that all of the rights embodied in the Bill of Rights were incorporated. Recognizing the analytic melding of fundamental fairness and total incorporation that characterizes Brennan's approach is far more useful. From the doctrine of fundamental fairness the Court embraced the concept of conducting an individualized consideration of whether a particular right was incorporated, rather than simply announcing a wholesale incorporation of the Constitution. (113) Likewise, from the total incorporation doctrine, the Court imported the idea that, once a right is deemed incorporated, the constitutionality of a state's criminal procedure practices with regard to that right will be "judged under precisely the same standards applied [in federal courts]." (114)
In short, the Court's final word on incorporation was unequivocal as to the question of varying or competing constitutional standards. The Court recognized that an incorporated right, as most all aspects of the Fourth, Fifth, Sixth, and Eighth Amendments are, must apply consistently and with equal force in all state and federal courts. (115) The rejection of the fundamental fairness approach, which had as its central premise a notion that the rights might vary or apply in a slightly less onerous form to the states, left no doubt that the doctrine of selective incorporation provides no margin for local variation or experimentation that might provide less protection than promised by the incorporated right. (116) The question is whether selective incorporation's requirement that "the states were to receive no greater deference for their judgments than the federal government" is compatible with the recent restrictions on habeas corpus relief. (117)
III. THE FIRST TIER OF UN-INCORPORATION: DEFERENCE TO STATE COURT INTERPRETATIONS OF THE CONSTITUTION WHEN DISCRETIONARY REVIEW WAS AVAILABLE IN FEDERAL COURT THROUGH CERTIORARI ON DIRECT APPEAL
As a general matter, the Court continues to apply the inflexible mandates of incorporation. In Wallace v. Jaffree, for example, the Court held that an Alabama statute authorizing a daily period for prayer during the school day was an endorsement of religion lacking any clearly secular purpose, and thus an affront to the Establishment Clause of the First Amendment. (118) In explaining the decision, the Court rejected what it called the "District Court's remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion," and noted that it is "firmly embedded in our constitutional jurisprudence ... that the several States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress of the United States." (119) The Court's holding, in other...
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