Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered

*J.D., University of Virginia School of Law, 2022. Many people graciously helped improve this Note and guide it to publication. I owe particular thanks to Professor Saikrishna Prakash, who oversaw this project and provided invaluable feedback, and to Holly Bard and the members of the Virginia Law Review who diligently edited it. All errors and omissions are mine alone.Show More

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two enumerated rights remain that the Court has affirmatively labeled non-fundamental. It is doctrinally puzzling why the Fourteenth Amendment should be understood to stop just short of total incorporation.

Of the last unincorporated rights, only one relates to criminal procedure: the Grand Jury Clause, which guarantees the right to be indicted by a grand jury before prosecution for a felony. The Court declined to incorporate the Grand Jury Clause in 1884 in Hurtado v. California, and this Note argues that Hurtado should be overturned. After analyzing the incorporation caselaw from the Roberts Court, an area in which the Court has been active, this Note argues that Hurtado is doctrinally incompatible with the modern approach to fundamental rights. Despite the internal inconsistencies in the doctrine, which this Note identifies, applying the modern incorporation framework to the Grand Jury Clause shows that the right to indictment is a fundamental one.

Finally, this Note argues that Hurtado can be overturned consistent with principles of stare decisis. Indeed, this Note makes a novel but striking finding—Hurtado likely does not carry precedential force as an incorporation case at all. This Note shows that Hurtado was argued and decided as a procedural due process case. Because the Court’s incorporation doctrine turns on substantive rather than procedural due process, Hurtado did not decide the relevant legal question at all for incorporation purposes.

Introduction

“[F]or so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards by the whole petit jury, of twelve more, finding him guilty, upon his trial.”¹ 1.4 William Blackstone, Commentaries 306 (London, 16th ed. 1825).Show More

In at least one corner of constitutional law, the Supreme Court makes explicit value judgments about which constitutional rights are important and which are not. Under the Court’s longstanding incorporation precedents, the Due Process Clause of the Fourteenth Amendment only secures “fundamental” rights against violation by the states. States remain free to ignore or abridge rights in the Bill of Rights that the Court deems non-fundamental.

At one time, the Supreme Court believed that nearly all of the Bill of Rights was non-fundamental, but after a flurry of incorporation cases from the Roberts Court, only two affirmatively non-fundamental rights remain: the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s requirement of a grand jury’s indictment as a prerequisite to prosecution for capital or infamous crimes.² 2.Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982).Show More This Note is concerned with the latter. In 1884, in Hurtado v. California, the Supreme Court held that it did not violate the Fourteenth Amendment’s guarantee of due process when the State of California tried, convicted, and sentenced a man to death without an indictment. This Note offers a long-overdue reconsideration of Hurtado and argues that the right to indictment is a fundamental one that should bind the states—no longer should states be able to prosecute by information at the whim of a lone prosecutor.

This reevaluation of Hurtado comes at a time when the Supreme Court itself is pondering the future of Hurtado. Dissenting from the Court’s recent decision in Ramos v. Louisiana, which incorporated the requirement of a unanimous jury for criminal convictions, Justice Alito warned that the Court’s holding there threatened the validity of Hurtado.³ 3.Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting).Show More This Note is the first since Ramos to take Justice Alito’s comments seriously by analyzing the validity of Hurtado both on its own terms and in light of the Supreme Court’s recent incorporation precedents.⁴ 4.See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions.Show More It finds that Hurtado is a flawed, misunderstood precedent that cannot be maintained in light of current doctrine.

In addition, this Note also contributes to the literature by uncovering hitherto unnoticed inconsistencies among the Roberts Court’s incorporation cases. While these cases seem conceptually unified, careful examination shows that they differ from one another in subtle but important methodological aspects.

A word of clarification. This Note takes a purely doctrinal approach. It is not concerned with the well-trodden issue of whether the Fourteenth Amendment was intended to incorporate rights against the states as an originalist matter. Nor does it take any stance on whether incorporation is properly accomplished via the Due Process Clause or the Privileges or Immunities Clause. It accepts as a matter of settled precedent that the Fourteenth Amendment incorporates at least some rights and that it does so through substantive due process. Finally, while there is a voluminous literature both critiquing and defending the grand jury as an institution, that, too, is beyond the scope of this Note and is only considered so far as the Court’s doctrine makes such functionalist assessments of constitutional rights relevant.

The argument proceeds as follows. Part I briefly outlines the contours of the right to grand jury indictment in order to clarify what is at stake in the incorporation debate. Part II traces the arc of the Supreme Court’s incorporation doctrine and then analyzes the modern caselaw, noting differences in how the cases apply the incorporation framework. Part III turns to Hurtado itself, critiquing the opinion and explaining its important role in the development of criminal procedure among the states. Part IV applies the modern incorporation framework to the Grand Jury Clause and finds that it is a fundamental right protected by substantive due process. Finally, Part V argues that Hurtado can be overturned consistent with stare decisis principles. In fact, it is entirely possible that stare decisis does not attach to Hurtado at all under the modern incorporation doctrine because Hurtado determined only that procedural due process does not guarantee the right to indictment—the holding did not implicate substantive due process.

1. 4 William Blackstone, Commentaries 306 (London, 16th ed. 1825). ↑
2. Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982). ↑
3. Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting). ↑

4. See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions. ↑