States' Rights, and Wrongs

June 19, 2009
Posted by Jay Livingston

The Supreme Court decision in Osborne yesterday allows a state to prevent a convicted person from re-examining evidence using modern DNA testing, even though such testing might prove innocence.

That’s bad enough – especially for people who have been wrongfully convicted and who might be exonerated. But my guess is that the conservative majority has bigger things in mind – rolling back incorporation.

Incorporation is the theory that the Warren Court used to prevent states from violating individual rights. The language of the Bill of Rights clearly protects people against actions by the federal government. “Congress shall make no law . . . ” But it says nothing specifically about what state governments may do. The Fourteenth Amendment, like the other two Civil War amendments imposes limitations on the states. No slavery, no denial of the vote. The Fourteenth requires states to follow “due process” in criminal cases.

The trouble was that what state courts considered due process varied widely. In Mississippi, beating defendants till they confessed and then using that confession to convict them was not a violation of due process.

Beginning in the 1960s, the Court handed down some landmark decisions saying basically that certain due process rights which already existed at the federal level (a free lawyer, the exclusion of illegally seized evidence, etc.) were incorporated on the states via the due process clause of the Fourteenth Amendment.

The conservatives seem to want to restrict these protections and return the definition of due process to the states. As Chief Justice Roberts wrote in his opinion.

This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way.

“No reason to constitutionalize.” There is a reason, actually – making sure that a state is not locking up (or executing) an innocent person. But that’s a small price to pay for taking one small step in rolling back the constitutionalizing protections of the Court’s more liberal period. Of course, when it comes to state practices the conservatives don’t like (restricting guns, allowing abortions and assisted suicide, counting Democratic votes), I doubt that we’ll hear much from them about the evils of constitutionalizing and incorporation.

None of the legal blogs have mentioned incorporation (at least not the two I looked at). So what I’m saying is either so wrong or so obvious that it isn’t worth noting.