Velloze on Infamous Crimes and Grand Juries

Gregory Velloze has posted The Evolution of Infamous Crimes as Relates to Grand Jury Incorporation on SSRN. Here is the abstract:

The Fifth Amendment requires grand jury indictments for capital or otherwise infamous crimes. The term “infamous crimes” originally applied to corporal punishments that disqualified convicts from serving as witnesses. But as penitentiaries replaced corporal punishments, and as state libel law continued to use the imputation of infamous crimes as part of civil actions, the phrase ‘infamous crimes’ mutated to a broader term encompassing felonies, even as the incompetency of felon witnesses disappeared. Further complicating matters, the pretrial requirements of due process merged with those required by the Fifth Amendment for infamous crimes. And when the Grand Jury Clause was incorporated through the Due Process Clause, rather than through the Privileges or Immunities Clause, the Supreme Court created an unmanageable requirement that resists incorporation. Based on the indeterminacy of the law at the time of the Fourteenth Amendment, it is unclear what reconstruction of “infamous crimes” can faithfully adhere to the requirements of Due Process, Grand Jury Indictments, and Privileges or Immunities incorporation.