Incorporation Against the States

Incorporation Against the States

The Sixth Amendment gives the accused, "[i]n all criminal prosecutions," the right "to a speedy and public trial."¹ Read by itself, that guarantee restrains the federal government, yet the great majority of criminal cases are prosecuted by the states. The bridge between the two is Section 1 of the Fourteenth Amendment, which provides that no State may "deprive any person of life, liberty, or property, without due process of law."² Only that clause of Section 1 does the work in this lesson. The reasoning runs in a short chain: a criminal trial puts the accused's liberty at stake, a trial conducted without the procedures fundamental to fairness takes that liberty without due process, and the Due Process Clause forbids a state to do so. A right that the Constitution treats as an essential element of a fair trial therefore binds a state court just as it binds a federal one.

The Court has not read the Due Process Clause to import the whole Bill of Rights in one stroke. Since Palko v. Connecticut, it has absorbed guarantees one at a time, asking whether a protection is "implicit in the concept of ordered liberty," and a guarantee absorbed this way applies against the states to the same extent it applies against the federal government.³ In his concurrence in Duncan v. Louisiana, Justice Black collected the guarantees the Court had absorbed by that selective process, and the right to a speedy and public trial appears on the list beside jury trial, counsel, confrontation, and compulsory process.⁴ The practical result is that no separate state version of these rights has to be learned, because one constitutional standard governs in both court systems.

Two decisions carry the individual guarantees across. For public trial, the decision is In re Oliver, which held that the Due Process Clause of the Fourteenth Amendment forbids closed criminal trials, relying on the nation's long distrust of secret proceedings and on the universal rule against secret trials.⁵ The public-trial right was among the first Sixth Amendment protections treated as an essential element of due process and so applied in state proceedings.⁶ The reason it counts as fundamental is functional: a trial open to observation is subject to contemporaneous review in the forum of public opinion, and that review restrains abuse of judicial power.⁷ For speedy trial, the decision is Klopfer v. North Carolina, and since then the speedy-trial guarantee has bound state prosecutors to the same extent as federal ones.⁸

The federal guarantee operates as a floor, so a state remains free to protect defendants more generously. A state may, for example, enact a speedy-trial statute that fixes the number of days within which trial must begin, while the constitutional right has no fixed deadline and is measured by the four-factor balancing of Barker v. Wingo, which governs only constitutional claims and not the various federal and state speedy-trial statutes.⁹ A floor serves two ends at once: a defendant in any state can count on the same minimum, and a state can try stricter rules without lowering that minimum for anyone. The consequence is that a single delay can generate two different claims, each with its own source of law, its own test, and its own remedy.

The error that costs points is treating a missed statutory deadline as if it established a Sixth Amendment violation, when the constitutional question still turns on the balancing that the next sections develop.¹⁰ That balancing is the next topic, because the incorporation point settles only that the right applies in state court and leaves open what the right requires.