American Constitutionalism in Historical Perspective (packet)

Total Incorporation: apply entire Bill of Rts to states. Ignores legislative history to the contrary. (Black)

Selective Incorporation: select certain parts of the Bill of Rts to enforce vs. states. Cardozo applies “shock the conscience” test, incorporate those elements of Bill of Rts w/out which you c/n have justice:

1. 
   Palko v. Connecticut: p. 469 5^th A double jeopardy guarantee d/n apply to states. Abstract system of justice: test--could just system of law lack that law? Some of B of Rts a/n fund and d/n need to be incorporated: trial by jury, indictment, prohibition of self-incrimination. But free speech, trial itself, counsel in criminal cases are fundamental so would be incorporated
   
2. 
   Adamson v. California: p. 470: comment on P’s failure to take the stand d/n violate 5^th A’s self-incrimin privilege in fed proceedings b/c not extended to states. Cardozo & Frankfurter concurrence: total incorp would limit state autonomy in enforcement of crim law. Black/Douglas dissent: explored the total incorporation positions. Black says that 1-9 of the Bill of Rts should be incorporated but not more (P & I includes rts broadly understood but c/n be listed and 1-8 which is listed). But selectively uses history b/c clearly means rts beyond Bill of Rts (‘rts that c/n be listed’). Natural law interprtn trespasses on state/fed govt and is too subjective.
   
1. 
   Duncan v. Louisiana, (p.475) 1968: Criminal jury is indispensable so must be incorporated to ensure that community is interjected b/w the state and the citizen. Looks at history of jury trial. Isn’t abstract ques of comparative justice but Anglo American historical conception of justice that is enforced by Bill of Rts. (White) Black concurs b/c he would have had same result under his approach. Moving toward total incorporation Harlan dissent: should only incorporate as far as fair purposes of the system required—d/n impose nationwide uniformity for its own sake. DP has some restrictions on state that parallel Bill of Rts restrictions on fed govt b/c Bill of Rts represent the American’s view of liberty and fundamental fairness.
   
2. 
   Williams v. Florida, 1970: agrees that jury is indispensable, but d/n have to enforce the whole originalist notion of 12 person, unanimous, male, property owning jury. Enforcing the connotative meaning allows for dilution of the federal guarantee. Both at fed and state level
   

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