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Un-Incorporating the Bill of Rights: The Tension Between the Fourteenth Amendment and the Federalism Concerns That Underlie Modern Criminal Procedure Reforms

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 4 Dated: Summer 2008 Pages: 1231-1304
Justin F. Marceau
Date Published
74 pages
This article addresses the relationship between subsection 2254 of the Anti-Terrorism and Effective Death Penalty Act and the 14th amendment.
This article examines the U.S. Supreme Court’s willingness to tolerate or endorse localized applications of the constitutional amendments regarding the rights of criminal defendants, and contrasts this with the Court’s continued adherence to the principle that it is the Court’s role under the Constitution as the final arbiter of Federal law, both as to its meaning and its reach, to ensure the uniformity of that Federal law. Because the Court continues to describe the supremacy of Federal pronouncements in the field of criminal procedure, the question necessarily arises whether the Court’s 14th amendment and supremacy clause jurisprudence are compatible with the limitations imposed on criminal defendants attempting to vindicate their Federal rights. Recognizing that Federal habeas corpus proceedings may be the best, and in some instances the only, vehicle available for ensuring State court adherence to the Constitution, this article devotes significant attention to the correlation between the availability of Federal habeas corpus relief and the ability of a defendant to vindicate his/her constitutional rights. This article is the first attempt by a commentator to reconcile subsection 2254 with the 14th amendment, ultimately concluding that subsection 2254, as currently applied, is inconsistent with the 14th amendment’s incorporation doctrine.