Interrogating the Nonincorporation of the Grand Jury Clause
With the Supreme Court’s recent incorporation—in Ramos v. Louisiana—of the Sixth Amendment’s jury unanimity requirement to apply to the states, the project of “total incorporation” is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government, but also the states—with one exception. The Fifth Amendment’s grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the earliest incorporation decisions following the ratification of the Fourteenth Amendment, the Court held that the right to grand jury indictment enshrined in the Fifth Amendment was not a requisite of due process and, therefore, could be dispensed with in state criminal proceedings.