Un-incorporating the Bill of Rights: the tension between the Fourteenth Amendment and the federalism concerns that underlie modern criminal procedure ... from: Journal of Criminal Law and Criminology
Book Details
Author(s)Justin F. Marceau
ISBN / ASINB001U0MUNE
ISBN-13978B001U0MUN1
MarketplaceFrance 🇫🇷
Description
This digital document is an article from Journal of Criminal Law and Criminology, published by Northwestern University, School of Law on June 22, 2008. The length of the article is 37364 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available immediately after purchase. You can view it with any web browser.
From the author: This Article is the first attempt by a commentator to reconcile [section] 2254 with the Fourteenth Amendment, ultimately concluding that [section] 2254, as currently applied, is inconsistent with the Fourteenth Amendment's incorporation doctrine. The hallmark of incorporation under the Fourteenth Amendment, or more precisely, selective incorporation, is the promise that constitutional rights must apply with the same force and breadth in each of the fifty states, a promise that is impossible to realize under the strictures of [section] 2254. Because [section] 2254 impedes the ability of federal courts to apply the Federal Constitution to constitutional claims--e.g., the Sixth Amendment right to counsel--there appear to be serious Fourteenth Amendment concerns that have previously gone unexplored. Because of the limitations on relief for incorrect applications of the Constitution imposed by [section] 2254, and in view of the nature of certain of the rights announced in the Bill of Rights, this Article posits that the constitutional criminal procedure rights have been sub silentio unincorporated.
Citation Details
Title: Un-incorporating the Bill of Rights: the tension between the Fourteenth Amendment and the federalism concerns that underlie modern criminal procedure reforms.
Author: Justin F. Marceau
Publication:Journal of Criminal Law and Criminology (Magazine/Journal)
Date: June 22, 2008
Publisher: Northwestern University, School of Law
Volume: 98 Issue: 4 Page: 1231(73)
Distributed by Gale, a part of Cengage Learning
From the author: This Article is the first attempt by a commentator to reconcile [section] 2254 with the Fourteenth Amendment, ultimately concluding that [section] 2254, as currently applied, is inconsistent with the Fourteenth Amendment's incorporation doctrine. The hallmark of incorporation under the Fourteenth Amendment, or more precisely, selective incorporation, is the promise that constitutional rights must apply with the same force and breadth in each of the fifty states, a promise that is impossible to realize under the strictures of [section] 2254. Because [section] 2254 impedes the ability of federal courts to apply the Federal Constitution to constitutional claims--e.g., the Sixth Amendment right to counsel--there appear to be serious Fourteenth Amendment concerns that have previously gone unexplored. Because of the limitations on relief for incorrect applications of the Constitution imposed by [section] 2254, and in view of the nature of certain of the rights announced in the Bill of Rights, this Article posits that the constitutional criminal procedure rights have been sub silentio unincorporated.
Citation Details
Title: Un-incorporating the Bill of Rights: the tension between the Fourteenth Amendment and the federalism concerns that underlie modern criminal procedure reforms.
Author: Justin F. Marceau
Publication:Journal of Criminal Law and Criminology (Magazine/Journal)
Date: June 22, 2008
Publisher: Northwestern University, School of Law
Volume: 98 Issue: 4 Page: 1231(73)
Distributed by Gale, a part of Cengage Learning
