Selective Incorporation Revisited

In June 1960 Justice Brennan\u27s separate opinion in Ohio ex re. Eaton v. Price\u27 set forth what came to be the doctrinal foundation of the Warren Court\u27s criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the selective incorporation theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment\u27s due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated within the fourteenth amendment all but a few of the thirteen Bill of Rights guarantees that relate to the criminal justice process.2 For many observers, these selective incorporation rulings were the Warren Court\u27s primary achievement in the criminal justice field.3 Measured by the number of prosecutions affected, the selective incorporation rulings had a monumental impact; in a single decade those rulings expanded the reach of constitutional regulation of criminal procedure many times beyond that which had been attained through all of the Court\u27s constitutional rulings over the previous 170 years.4 This article reexamines the selective incorporation doctrine from the perspective gained through having observed its application for approximately twenty years. Selective incorporation has been the subject of considerable commentary,5 but little attention has been given to its underlying rationale. This article explores that rationale and considers the extent to which the decisions of the Burger Court have adopted its basic premises. Although many have viewed selective incorporation as a doctrine founded merely on a desire of the Warren Court majority to extend the consiitutionalization of criminal procedure, several additional value judgments also contributed to the doctrine\u27s adoption. The Burger Court majority has accepted the doctrine without fully accepting all of those value judgments. The continued application of selective incorporation rests on considerations somewhat different from those that led to its adoption. This article suggests that the key to the Court\u27s adherence to selective incorporation has been a flexibility in constitutional interpretation that permits consideration of factors that the original supporters of selective incorporation largely rejected. To explore this thesis, one must be familiar not only with the selective incorporation theory, but also with the theories that served as its forebearers. Selective incorporation was an outgrowth of two quite different theories dealing with the relationship between the fourteenth amendment and the Bill of Rights, both of which had been advanced within the Court for many years prior to Ohio ex rel Eaton v. Price. The ability of selective incorporation to command majority support during the 1960\u27s best can be understood in light of the division within the Court that those two theories had spurred. Similarly, an analysis of the value judgments underlying the selective incorporation doctrine requires an appreciation of the values underlying those antecedent theories. Unfortunately, a review of those prior theories and their treatment by the Court cannot be as brief today as it would have been in the 1960\u27s, when both theories were given extensive coverage in almost every course in constitutional law or criminal procedure. Even those who are already familiar with the terrain may find the review worthwhile, however, as the development of those theories constitutes one of the more interesting chapters in our constitutional history