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Volume18
Year2009
TitleThe Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution
Author(s)Donald A. Dripps
First Page469
AbstractThis essay argues that our understanding of the incorporation question can be strengthened by appreciating the first criminal procedure revolution. The ratification of the Fourteenth Amendment took place just as the doctrinal part of the revolution-the authorization of felony prosecutions by information and of testimony by the defendant-was becoming part of the positive law. These doctrinal changes were incompatible with the Fifth Amendment's indictment and self-incrimination clauses, and this incompatibility was recognized by both their proponents and their opponents. Many of the best jurists in the North and West did not understand the Fourteenth Amendment as imposing these clauses on the states.

To say the history of criminal justice in the nineteenth century provides powerful evidence against the incorporation theory is not to say that this evidence is dispositive. There is evidence on all sides of the incorporation controversy, and how to weigh it is something reasonable people continue to contest. All I claim here is that, however we understand the appeal to the original understanding, the first revolution presents powerful evidence against incorporation of the grand jury and self-incrimination clauses of the Fifth Amendment, and by implication against an theory of total incorporation.
Part II provides an overview of the criminal justice system at the time of the founding. Part III provides an overview of the first revolution in its three dimensions - institutional, theoretical, and doctrinal. Part IV takes a close look at the doctrinal developments, and argues that the authorization of felony information and defendant testimony are inconsistent with any widespread understanding that the Fourteenth Amendment incorporated the Fifth.