4 The Scope and Incorporation of the Bill of Rights from the Civil War to the 1960s

The Court’s refusal to incorporate the Bill of Rights in the Slaughter-House Cases had two major consequences for Supreme Court doctrine. First, it closed the door on the prospect of total incorporation, or the theory that the Fourteenth Amendment incorporated all of the Bill of Rights rights (to be specific, the first eight amendments) when it was passed. While almost all of these rights would, ultimately, be incorporated against the states by the end of the 1960s, the process of incorporation would instead occur through selective incorporation, with rights being incorporated in piecemeal fashion, case by case, over a period of decades.

Second, the Slaughterhouse Court made the Privileges and Immunities Clause a dead letter. While Justice Miller’s rather vague description of what, exactly, constituted a privilege and immunity under national citizenship could, in theory, have been expanded in future cases, in practice it was not. Instead, as pressures to incorporate the Bill of Rights against the states increased in the 20^th century, the Court would use the Due Process Clause of the Fourteenth Amendment to incorporate cases, since doing so would not require overturning Slaughterhouse.

In the decades that immediately followed the Slaughter-House Cases, the Court continued to reject incorporation of any kind. In Hurtado v. California (1884), for example, the Court rejected the claim that the Due Process clause required states to use grand juries (as required by the Fifth Amendment). As time passed, however, pressure to incorporate various rights against the states continued to rise, and Supreme Court majorities grappled with how they might protect individual rights from state governments despite the ruling in the Slaughter-House Cases. As mentioned above, the path they took involved two components:

1. the Due Process Clause, not the Privileges and Immunities Clause, would be the vehicle for incorporating individual rights
2. the Court would assess on a case-by-case basis whether a right was sufficiently important or “fundamental” to merit being incorporated

How would the Court decide which rights should be selectively incorporated? This is the question that drove most of the incorporation caselaw in the 20^th century. More important than the particular wording of a legal test for incorporation (all of which boiled down to “is this right fundamental?”) was how high a bar Court majorities would set for a right to be incorporated. Initially, the Court’s approach to incorporation was stringent, slowly accepting that rights involving property (1897), speech (1925), or religion (1940) should be incorporated while rejecting claims to incorporate criminal procedure rights. The logic here—that these first three categories of rights were fundamental in a way that protections against search and seizure were not—was likely driven by concerns regarding federalism, as well as because criminal law had long been regarded as a policy area reserved to state governments.

Palko v. Connecticut (1937) is a good illustration of the Court’s approach to incorporation before the 1960s. Palka (whose name was misspelled in court documents!) had been convicted of killing two police officers after confessing to the crime. At trial, however, the state court refused to admit the confession into evidence, which led the jury to convict him of second-degree, rather than first-degree murder.

Connecticut’s criminal justice system had an unusual feature: the state could appeal a criminal case if an appeals court found the trial judge had made legal errors that harmed the prosecution’s case. Such a system, note, would be unconstitutional if subject to the Fifth Amendment’s Double Jeopardy Clause, which prevented an individual from being tried twice for the same crime. Here, the state appeals court agreed with the prosecution regarding the legal error, the case was reheard, the confession was admitted, and Palka was sentenced to death.

After his own appeal in the state court system was rejected, Palka appealed to the Supreme Court, arguing that the double jeopardy clause should be incorporated against the states, voiding his second conviction.

Palko v. Connecticut

302 U.S. 319 (1937)

Facts: After being indicted for first-degree murder (for killing two police officers), a jury found Palko (actual name “Palka”) guilty of second-degree murder, largely because the trial judge rejected the admission of Palko’s confession to the murder into evidence.

Connecticut law allowed the state to retry the defendant if an appellate court agreed the trial judge had made legal errors harmful to the prosecution’s case (here, refusing to admit Palko’s confession into evidence). A court so found, and in the second trial, Palko was found guilty of first-degree murder and sentenced to death.

After exhausting his state appeals, Palko sued in federal court, arguing that 1) the double jeopardy clause of the Fifth Amendment should be incorporated against the states. that Connecticut’s legal framework constituted double jeopardy, and 2) Connecticut’s legal framework created double jeopardy in his case.

Question: was the Fifth Amendment’s prohibition against double jeopardy a fundamental right that applies to the states through the Fourteenth Amendment’s Due Process Clause?

Vote: No, 8-1

For the Court: Justice Cardozo

JUSTICE CARDOZO delivered the opinion of the Court.

… The execution of the sentence will not deprive appellant of his life without the process of law assured to him by the Fourteenth Amendment of the Federal Constitution.

The argument for appellant is that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also. The Fifth Amendment, which is not directed to the states, but solely to the federal government, creates immunity from double jeopardy. No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” The Fourteenth Amendment ordains, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” To retry a defendant, though under one indictment and only one, subjects him, it is said, to double jeopardy in violation of the Fifth Amendment if the prosecution is one on behalf of the United States. From this the consequence is said to follow that there is a denial of life or liberty without due process of law, if the prosecution is one on behalf of the People of a State…

Is double jeopardy in such circumstances, if double jeopardy it must be called, a denial of due process forbidden to the states? …

We have said that, in appellant’s view, the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule…

The Sixth Amendment calls for a jury trial in criminal cases, and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed twenty dollars. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether…

On the other hand, the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress or the like freedom of the press, or the right of peaceable assembly, without which speech would be unduly trammeled, or the right of one accused of crime to the benefit of counsel. In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” … Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them…

We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption. These, in their origin, were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed.  This is true, for illustration, of freedom of thought, and speech.

Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom…

… Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial… For that reason, ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel.  [That] decision … turned upon the fact that, in the particular situation laid before us in the evidence, the benefit of counsel was essential to the substance of a hearing.

Our survey of the cases serves, we think, to justify the statement that the dividing line between them, if not unfaltering throughout its course, has been true for the most part to a unifying principle. On which side of the line the case made out by the appellant has appropriate location must be the next inquiry, and the final one. Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”?  The answer surely must be “no.”

… The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error…

JUSTICE BUTLER dissents.

The Court’s rejection of Palko’s claim was typical in this time period, as it held First Amendment and property rights were fundamental and appropriate for incorporation in a way that criminal procedure protections were not. Even then, however, as Cardozo notes in the above excerpt the Court made exceptions in criminal cases where the state’s actions were deemed to violate fundamental principles of justice: voiding a criminal conviction secured through an involuntary confession obtained by beating the suspect, Brown v. Mississippi (1936) and voiding the conviction of nine black men (the “Scottsboro Boys”) who were not given access to counsel when facing a death sentence for the alleged rape of two white women, Powell v. Alabama (1932).