MR. JUSTICE REED delivered the opinion of the Court.
The appellant, Adamson, a citizen of the United States, was convicted, without recommendation for mercy, by a jury in a Superior Court of the State of California of
The appellant was charged in the information with former convictions for burglary, larceny and robbery and pursuant to § 1025, California Penal Code, answered that he had suffered the previous convictions. This answer barred allusion to these charges of convictions on the trial.
In the first place, appellant urges that the provision of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself" is a fundamental national privilege or immunity protected
Secondly, appellant relies upon the due process of law clause of the Fourteenth Amendment to invalidate the provisions of the California law, set out in note 3 supra, and as applied (a) because comment on failure to testify is permitted, (b) because appellant was forced to forego testimony in person because of danger of disclosure of his past convictions through cross-examination, and (c) because the presumption of innocence was infringed by the shifting of the burden of proof to appellant in permitting comment on his failure to testify.
We shall assume, but without any intention thereby of ruling upon the issue,
The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government and its provisions were inapplicable to similar actions done by the states. Barron v. Baltimore, 7 Pet. 243; Feldman v. United States, 322 U.S. 487, 490. With the adoption of the Fourteenth Amendment, it was suggested that the dual citizenship recognized by its first sentence
Appellant secondly contends that if the privilege against self-incrimination is not a right protected by the privileges and immunities clause of the Fourteenth Amendment against state action, this privilege, to its full scope under the Fifth Amendment, inheres in the right to a fair trial. A right to a fair trial is a right admittedly protected by the due process clause of the Fourteenth Amendment.
Specifically, the due process clause does not protect, by virtue of its mere existence. the accused's freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. Twining v. New Jersey, 211 U.S. 78, 99-114; Palko v. Connecticut, supra, p. 323. For a state to require testimony from an accused is not necessarily a breach of a state's obligation to give a fair trial. Therefore, we must examine the effect of the California law applied in this trial to see whether the comment on failure to testify violates the protection against state action that the due process clause does grant to an accused. The due process clause forbids compulsion to testify by fear of hurt, torture or exhaustion.
Generally, comment on the failure of an accused to testify is forbidden in American jurisdictions.
Appellant sets out the circumstances of this case, however, to show coercion and unfairness in permitting comment. The guilty person was not seen at the place and time of the crime. There was evidence, however, that entrance to the place or room where the crime was committed might have been obtained through a small door. It was freshly broken. Evidence showed that six fingerprints
It is true that if comment were forbidden, an accused in this situation could remain silent and avoid evidence of former crimes and comment upon his failure to testify. We are of the view, however, that a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice. The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction. When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes. Indeed, this is a dilemma with which any defendant may be faced. If facts, adverse to the defendant, are proven by the prosecution, there may be no way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination. The defendant must then decide whether or not to use such a witness. The fact that the witness may also be the defendant
There is no basis in the California law for appellant's objection on due process or other grounds that the statutory authorization to comment on the failure to explain or deny adverse testimony shifts the burden of proof or the duty to go forward with the evidence. Failure of the accused to testify is not an admission of the truth of the adverse evidence. Instructions told the jury that the burden of proof remained upon the state and the presumption of innocence with the accused. Comment on failure to deny proven facts does not in California tend to supply any missing element of proof of guilt. People v. Adamson, 27 Cal.2d 478, 489-95, 165 P.2d 3, 9-12. It only directs attention to the strength of the evidence for the prosecution or to the weakness of that for the defense. The Supreme Court of California called attention to the fact that the prosecutor's argument approached the borderline in a statement that might have been construed as asserting "that the jury should infer guilt solely from defendant's silence." That court felt that it was improbable the jury was misled into such an understanding of their power. We shall not interfere with such a conclusion. People v. Adamson, 27 Cal.2d 478, 494-95, 165 P.2d 3, 12.
Finally, appellant contends that due process of law was denied him by the introduction as evidence of tops of women's stockings that were found in his room. The claim is made that such evidence inflamed the jury. The lower part of a woman's stocking was found under the victim's body. The top was not found. The corpse was barelegged. The tops from defendant's room did not
We find no other error that gives ground for our intervention in California's administration of criminal justice.
MR. JUSTICE FRANKFURTER, concurring.
Less than ten years ago, Mr. Justice Cardozo announced as settled constitutional law that while the Fifth Amendment, "which is not directed to the states, but solely to the federal government," provides that no person shall be compelled in any criminal case to be a witness against himself, the process of law assured by the Fourteenth Amendment does not require such immunity from self-crimination: "in prosecutions by a state, the exemption will fail if the state elects to end it." Palko v. Connecticut, 302 U.S. 319, 322, 324. Mr. Justice Cardozo spoke for the Court, consisting of Mr. Chief Justice Hughes, and McReynolds, Brandeis, Sutherland, Stone, Roberts, Black, JJ. (Mr. Justice Butler dissented.) The matter no longer called for discussion; a reference to Twining v. New Jersey, 211 U.S. 78, decided thirty years before the Palko case, sufficed.
Decisions of this Court do not have equal intrinsic authority. The Twining case shows the judicial process at its best — comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After
The circumstances of this case present a minor variant from what was before the Court in Twining v. New Jersey, supra. The attempt to inflate the difference into constitutional significance was adequately dealt with by Mr. Justice Traynor in the court below. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3. The matter lies within a very narrow compass. The point is made that a defendant who has a vulnerable record would, by taking the stand, subject himself to having his credibility impeached thereby. See Raffel v. United States, 271 U.S. 494, 496-97. Accordingly, under California law, he is confronted with the dilemma, whether to testify and perchance have his bad record prejudice him in the minds of the jury, or to subject himself to the unfavorable inference which the jury might draw from his silence. And so, it is argued, if he chooses the latter alternative, the jury ought not to be allowed to attribute his silence to a consciousness of guilt when it might be due merely to a desire to escape damaging cross-examination.
This does not create an issue different from that settled in the Twining case. Only a technical rule of law would exclude from consideration that which is relevant, as a matter of fair reasoning, to the solution of a problem. Sensible and just-minded men. in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict. The notion that to allow jurors to do that which sensible and right-minded men do every day violates the "immutable principles of justice" as conceived by a civilized society is to trivialize the importance of "due process." Nor does it
For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights, and I am prepared to agree that, as part of that immunity, comment on the failure of an accused to take the witness stand is forbidden in federal prosecutions. It is so, of course, by explicit act of Congress. 20 Stat. 30; see Bruno v. United States, 308 U.S. 287. But to suggest that such a limitation can be drawn out of "due process" in its protection of ultimate decency in a civilized society is to suggest that the Due Process Clause fastened fetters of unreason upon the States. (This opinion is concerned solely with a discussion of the Due Process Clause of the Fourteenth Amendment. I put to one side the Privileges or Immunities Clause of that Amendment. For the mischievous uses to which that clause would lend itself if its scope were not confined to that given it by all but
Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court — a period of seventy years — the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but — it is especially relevant to note — they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law. But they were also judges mindful of the relation of our federal system to a progressively democratic society and therefore duly regardful of the scope of authority that was left to the States even after the Civil War. And so they did not find that the Fourteenth Amendment, concerned as it was with matters fundamental to the pursuit of justice, fastened upon the States procedural arrangements which, in the language of Mr. Justice Cardozo, only those who are "narrow or provincial" would deem essential to "a fair and enlightened system of justice." Palko v. Connecticut, 302 U.S. 319, 325. To suggest that it is inconsistent with a truly free
The short answer to the suggestion that the provision of the Fourteenth Amendment, which ordains "nor shall any State deprive any person of life, liberty, or property, without due process of law," was a way of saying that every State must thereafter initiate prosecutions through indictment by a grand jury, must have a trial by a jury of twelve in criminal cases, and must have trial by such a jury in common law suits where the amount in controversy exceeds twenty dollars, is that it is a strange way of saying it. It would be extraordinarily strange for a Constitution to convey such specific commands in such a round-about and inexplicit way. After all. an amendment to the Constitution should be read in a "`sense most obvious to the common understanding at the time of its adoption.' . . . For it was for public adoption that it was proposed." See Mr. Justice Holmes in Eisner v. Macomber, 252 U.S. 189, 220. Those reading the English language with the meaning which it ordinarily conveys, those conversant with the political and legal history of the concept of due process, those sensitive to the relations of the States to the central government as well as the relation of some of the provisions of the Bill of Rights to the process of justice, would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight Amendments. Some of these are enduring reflections of experience with human nature, while some express the restricted views of Eighteenth-Century England regarding the best methods for the ascertainment of facts. The notion that the Fourteenth Amendment was a covert way of imposing upon the
Indeed, the suggestion that the Fourteenth Amendment incorporates the first eight Amendments as such is not unambiguously urged. Even the boldest innovator would shrink from suggesting to more than half the States that
It may not be amiss to restate the pervasive function of the Fourteenth Amendment in exacting from the States observance of basic liberties. See Malinski v. New York, 324 U.S. 401, 412 et seq.; Louisiana v. Resweber, 329 U.S. 459, 466 et seq. The Amendment neither comprehends the specific provisions by which the founders deemed it appropriate to restrict by federal government nor is it confined to them. The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government. It ought not to require argument to reject the notion that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth. The Fifth Amendment specifically prohibits prosecution of an "infamous crime" except upon indictment; it forbids double jeopardy; it bars compelling a person to be a witness against himself in any criminal case: it precludes deprivation of "life, liberty, or property without due process of law. . . ." Are Madison and his contemporaries in the framing of the Bill of Rights to be charged with writing into it a meaningless clause? To consider "due process of law" as merely a shorthand statement of other specific clauses in the same amendment is to attribute to the authors and proponents of this Amendment ignorance of, or indifference to, a historic conception which was one of the great instruments in the arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen.
And so, when, as in a case like the present, a conviction in a State court is here for review under a claim that a right protected by the Due Process Clause of the Fourteenth Amendment has been denied, the issue is not whether an infraction of one of the specific provisions of the first eight Amendments is disclosed by the record. The relevant question is whether the criminal proceedings which resulted in conviction deprived the accused of the due process of law to which the United States Constitution entitled him. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward
MR. JUSTICE BLACK, dissenting.
The appellant was tried for murder in a California state court. He did not take the stand as a witness in his own behalf. The prosecuting attorney, under purported authority of a California statute, Cal. Penal Code, § 1323 (Hillyer-Lake, 1945), argued to the jury that an inference of guilt could be drawn because of appellant's failure to deny evidence offered against him. The appellant's contention in the state court and here has been that the statute denies him a right guaranteed by the Federal Constitution. The argument is that (1) permitting comment upon his failure to testify has the effect of compelling him to testify so as to violate that provision of the Bill of Rights contained in the Fifth Amendment that "No person . . . shall be compelled in any criminal case to be a witness against himself"; and (2) although this provision of the Fifth Amendment originally applied only as a restraint upon federal courts, Barron v. Baltimore, 7 Pet. 243, the Fourteenth Amendment was intended to, and did, make the prohibition against compelled testimony applicable to trials in state courts.
This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, 211 U.S. 78, that this Court is endowed by the Constitution with boundless power under "natural law" periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes "civilized decency" and "fundamental liberty and justice."
The Twining case was the first, as it is the only, decision of this Court which has squarely held that states were free, notwithstanding the Fifth and Fourteenth Amendments, to extort evidence from one accused of crime.
The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments — Legislative, Executive, and Judicial. The Fifth, Sixth, and Eighth Amendments were pointedly aimed at confining exercise of power by courts and judges within precise boundaries, particularly in the procedure used for the trial of criminal cases.
But these limitations were not expressly imposed upon state court action. In 1833, Barron v. Baltimore, supra, was decided by this Court. It specifically held inapplicable to the states that provision of the Fifth Amendment which declares: "nor shall private property be taken for public use, without just compensation." In deciding the particular point raised, the Court there said that it could not hold that the first eight amendments applied to the states. This was the controlling constitutional rule when the Fourteenth Amendment was proposed in 1866.
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the
In construing other constitutional provisions, this Court has almost uniformly followed the precept of Ex parte Bain, 121 U.S. 1, 12, that "It is never to be forgotten that, in the construction of the language of the Constitution . . ., as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument." See also Everson v. Board of Education, 330 U.S. 1, 8, 28, 33; Thornhill v. Alabama, 310 U.S. 88, 95, 102; Knowlton v. Moore, 178 U.S. 41, 89, 106; Reynolds v. United States, 98 U.S. 145, 162; Barron v. Baltimore, supra at 250-251; Cohens v. Virginia, 6 Wheat. 264, 416-420.
Investigation of the cases relied upon in Twining v. New Jersey to support the conclusion there reached that neither the Fifth Amendment's prohibition of compelled testimony, nor any of the Bill of Rights, applies to the States, reveals an unexplained departure from this salutary
In the Twining case itself, the Court was cited to a then recent book, Guthrie, Fourteenth Amendment to the Constitution (1898). A few pages of that work recited some of the legislative background of the Amendment, emphasizing the speech of Senator Howard. But Guthrie did not emphasize the speeches of Congressman Bingham, nor the part he played in the framing and adoption of the first section of the Fourteenth Amendment. Yet Congressman
For this reason, I am attaching to this dissent an appendix which contains a resume, by no means complete, of the Amendment's history. In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state
In 1872, four years after the Amendment was adopted, the Slaughter-House cases came to this Court. 16 Wall 36. The Court was not presented in that case with the evidence which showed that the special sponsors of the Amendment in the House and Senate had expressly explained one of its principal purposes to be to change the Constitution as construed in Barron v. Baltimore, supra, and make the Bill of Rights applicable to the states.
Later, but prior to the Twining case, this Court decided that the following were not "privileges or immunities" of national citizenship, so as to make them immune against state invasion: the Eighth Amendment's prohibition against cruel and unusual punishment, In re Kemmler, 136 U.S. 436; the Seventh Amendment's guarantee of a jury trial in civil cases, Walker v. Sauvinet, 92 U.S. 90; the Second Amendment's "right of the people to keep and bear Arms . . .," Presser v. Illinois, 116 U.S. 252; the Fifth and Sixth Amendments' requirements for indictment in capital or other infamous crimes, and for trial by jury in criminal prosecutions, Maxwell v. Dow, 176 U.S. 581. While it can be argued that these cases implied that no one of the provisions of the Bill of Rights was made applicable to the states as attributes of national citizenship, no one of them expressly so decided. In fact, the Court in Maxwell v. Dow, supra at 597-598, concluded no more than that "the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government." Cf. Palko v. Connecticut, 302 U.S. 319, 329.
After the Slaughter-House decision, the Court also said that states could, despite the "due process" clause of the Fourteenth Amendment, take private property without just compensation, Davidson v. New Orleans, 96 U.S. 97,
Thus, up to and for some years after 1873, when Munn v. Illinois, supra, was decided, this Court steadfastly declined to invalidate states' legislative regulation of property rights or business practices under the Fourteenth Amendment unless there were racial discrimination involved in the state law challenged. The first significant breach in this policy came in 1889, in Chicago, M. & St. P.R. Co. v. Minnesota, 134 U.S. 418.
Following the pattern of the new doctrine formalized in the foregoing decisions, the Court in 1896 applied the due process clause to strike down a state statute which had forbidden certain types of contracts. Allgeyer v. Louisiana, 165 U.S. 578. Cf. Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 318-319. In doing so, it substantially adopted the rejected argument of counsel in the Slaughter-House cases, that the Fourteenth Amendment guarantees the liberty of all persons under "natural law" to engage in their chosen business or vocation. In the Allgeyer opinion, id. at 589, the Court quoted with approval the concurring opinion of Mr. Justice Bradley in a second Slaughter-House case, Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 762, 764, 765, which closely followed
The foregoing constitutional doctrine, judicially created and adopted by expanding the previously accepted meaning of "due process," marked a complete departure from the Slaughter-House philosophy of judicial tolerance of state regulation of business activities. Conversely, the new formula contracted the effectiveness of the Fourteenth Amendment as a protection from state infringement of individual liberties enumerated in the Bill of Rights. Thus the Court's second-thought interpretation of the Amendment was an about-face from the Slaughter-House interpretation and represented a failure to carry out the avowed purpose of the Amendment's sponsors.
The Twining decision, rejecting the compelled testimony clause of the Fifth Amendment, and indeed rejecting all the Bill of Rights, is the end product of one phase of this philosophy. At the same time, that decision consolidated the power of the Court assumed in past cases by laying broader foundations for the Court to invalidate state and even federal regulatory legislation. For the Twining decision, giving separate consideration to "due process" and "privileges or immunities," went all the way to say that the "privileges or immunities" clause of the Fourteenth Amendment "did not forbid the States to abridge the personal rights enumerated in the first eight Amendments. . . ." Twining v. New Jersey, supra, 99. And in order to be certain, so far as possible, to leave this Court wholly free to reject all the Bill of Rights as specific restraints upon state action, the decision declared that even if this Court should decide that the due process clause forbids the states to infringe personal liberties guaranteed by the Bill of Rights, it would do so, not "because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." Ibid.
At the same time that the Twining decision held that the states need not conform to the specific provisions of the Bill of Rights, it consolidated the power that the Court had assumed under the due process clause by laying even broader foundations for the Court to invalidate state and even federal regulatory legislation. For under the Twining formula, which includes non-regard for the first eight amendments, what are "fundamental rights" and in accord with "canons of decency," as the Court
That this feeling was shared, at least in part, by members of this Court is revealed by the vigorous dissents that have been written in almost every case where the Twining and Hurtado doctrines have been applied to invalidate state regulatory laws.
Later decisions of this Court have completely undermined that phase of the Twining doctrine which broadly precluded reliance on the Bill of Rights to determine what is and what is not a "fundamental" right. Later cases have also made the Hurtado case an inadequate support for this phase of the Twining formula. For despite Hurtado and Twining, this Court has now held that the Fourteenth Amendment protects from state invasion the following "fundamental" rights safeguarded by the Bill of Rights: right to counsel in criminal cases, Powell v. Alabama, 287 U.S. 45, 67, limiting the Hurtado case; see also Betts v. Brady, 316 U.S. 455, and De Meerleer v. Michigan, 329 U.S. 663; freedom of assembly, De Jonge v. Oregon, 299 U.S. 353, 364; at the very least, certain types of cruel and unusual punishment and former jeopardy, State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459; the right of an accused in a criminal case to be informed
In Palko v. Connecticut, supra, a case which involved former jeopardy only, this Court re-examined the path it had traveled in interpreting the Fourteenth Amendment since the Twining opinion was written. In Twining the Court had declared that none of the rights enumerated in the first eight amendments were protected against state invasion because they were incorporated in the Bill of Rights. But the Court in Palko, supra, at 323, answered a contention that all eight applied with the more guarded statement, similar to that the Court had used in Maxwell v. Dow, supra at 597, that "there is no such general rule." Implicit in this statement, and in the cases decided in the interim between Twining and Palko and since, is the understanding that some of the eight amendments do apply by their very terms. Thus the Court said in the Palko case that 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 free exercise of religion . .., or the right of peaceable assembly . . . 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
The Court's opinion in Twining, and the dissent in that case, made it clear that the Court intended to leave the states wholly free to compel confessions, so far as the Federal Constitution is concerned. Twining v. New Jersey, supra, see particularly pp. 111-114, 125-126. Yet in a series of cases since Twining this Court has held that the Fourteenth Amendment does bar all American courts, state or federal, from convicting people of crime on coerced confessions. Chambers v. Florida, 309 U.S. 227; Ashcraft v. Tennessee, 322 U.S. 143, 154-155, and cases cited. Federal courts cannot do so because of the Fifth Amendment.
It seems rather plain to me why the Court today does not attempt to justify all of the broad Twining discussion. That opinion carries its own refutation on what may be called the factual issue the Court resolved. The opinion itself shows, without resort to the powerful argument in the dissent of Mr. Justice Harlan, that outside of Star Chamber practices and influences, the "English-speaking" peoples have for centuries abhorred and feared the practice of compelling people to convict themselves of crime. I shall not attempt to narrate the reasons. They are well known and those interested can read them in both the majority and dissenting opinions in the Twining case, in Boyd v. United States, 116 U.S. 616, and in the cases cited in notes 8, 9, 10, and 11 of Ashcraft v. Tennessee, supra. Nor does the history of the practice of compelling testimony in this country, relied on in the Twining opinion, support the degraded rank which that opinion gave the Fifth Amendment's privilege against compulsory self-incrimination. I think the history there recited by the Court belies its conclusion.
I cannot consider the Bill of Rights to be an outworn 18th Century "strait jacket" as the Twining opinion did. Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights. If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process. But rather than accept either of these choices, I would follow what I believe was the original purpose of the Fourteenth Amendment — to extend to all the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.
It is an illusory apprehension that literal application of some or all of the provisions of the Bill of Rights to the States would unwisely increase the sum total of the powers of this Court to invalidate state legislation. The Federal Government has not been harmfully burdened by the requirement that enforcement of federal laws affecting civil liberty conform literally to the Bill of Rights. Who would advocate its repeal? It must be conceded, of course, that the natural-law-due-process formula, which the Court today reaffirms, has been interpreted to limit substantially this Court's power to prevent state violations of the individual civil liberties guaranteed by the Bill of Rights.
Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly established, for better or worse, that courts can strike down legislative enactments which violate the Constitution. This process, of course, involves interpretation, and since words can have many meanings, interpretation obviously may result in contraction or extension of the original purpose of a constitutional
MR. JUSTICE DOUGLAS joins in this opinion.
[For dissenting opinion of MURPHY, J., see post, p. 123.]
The legislative origin of the first section of the Fourteenth Amendment seems to have been in the Joint Committee on Reconstruction. That Committee had been appointed by a concurrent resolution of the House and Senate with authority to report "by bill or otherwise" whether the former Confederate States "are entitled to be represented in either House of Congress." Cong. Globe, 39th Cong., 1st Sess. (1865) 6, 30. The broad mission of that Committee was revealed by its very first action of sending a delegation to President Johnson requesting him to "defer all further executive action in regard to reconstruction until this committee shall have taken action on that subject." Journal of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen. Doc. No. 711, 63d Cong., 3d Sess. (1915) 6. It immediately set about the business of drafting constitutional amendments which would outline the plan of reconstruction which it would recommend to Congress. Some of those proposed amendments related to suffrage and representation in the South. Journal, 7. On January 12, 1866, a subcommittee, consisting of Senators Fessenden (Chairman of the Reconstruction Committee)
"The Congress shall have power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty, and property." Journal, 9. Another proposed amendment that "All laws, State or national, shall operate impartially and equally on all persons without regard to race or color,"
"Congress shall have power to make all laws which shall be necessary and proper to secure all persons in every State full protection in the enjoyment of life, liberty, and property; and to all citizens of the United States, in any State, the same immunities and also equal political rights and privileges." Journal, 14. This was not accepted. But on February 3, 1866, Mr. Bingham submitted an amended version: "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (Art. 4, sec. 2); and to all persons in the several States equal protection
When, on February 26, the proposed amendment came up for debate, Mr. Bingham stated that "by order . . . of the committee. . . I propose the adoption of this amendment." In support of it he said:
". . . the amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its illustrious framers. Every word of the proposed amendment is to-day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States. The residue of the resolution, as the House will see by a reference to the Constitution, is the language of the second section of the fourth article, and of a portion of the fifth amendment adopted by the First Congress in 1789, and made part of the Constitution of the country. . . .
"Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility. . . .
"And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued
Opposition speakers emphasized that the Amendment would destroy state's rights and empower Congress to legislate on matters of purely local concern. Cong. Globe, supra, 1054, 1057, 1063-1065, 1083, 1085-1087. See also id. at 1082. Some took the position that the Amendment was unnecessary because the Bill of Rights were already secured against state violation. Id. at 1059, 1066, 1088. Mr. Bingham joined issue on this contention:
"The gentleman seemed to think that all persons could have remedies for all violations of their rights of `life, liberty, and property' in the Federal courts.
"I ventured to ask him yesterday when any action of that sort was ever maintained in any of the Federal courts of the United States to redress the great wrong which has been practiced, and which is being practiced now in more States than one of the Union under the authority of State laws, denying to citizens therein equal protection or any protection in the rights of life, liberty, and property.
". . . A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.
"Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Page 96 Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:
"I read one further decision on this subject — the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:
"The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution?. . . Is the bill of rights to stand in
"Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be.
"What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? . . .
"As slaves were not protected by the Constitution, there might be some color of excuse for the slave States in their disregard for the requirement of the bill of rights as to slaves and refusing them protection in life or property. . . .
"But, sir, there never was even colorable excuse, much less apology, for any man North or South claiming that any State Legislature or State court, or State Executive, has any right to deny protection to any free citizen of the United States within their limits in the rights of life, liberty, and property. Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights. Gentlemen who oppose this amendment simply declare to these rebel States, go on with your confiscation statutes, your statutes of banishment, your statutes of unjust imprisonment, your statutes of murder and death against men because of their loyalty to the Constitution and Government of the United States." Id. at 1089-1091.
". . . Where is the power in Congress, unless this or some similar amendment be adopted, to prevent the reenactment
As one important writer on the adoption of the Fourteenth Amendment has observed, "Bingham's speech in defense and advocacy of his amendment comprehends practically everything that was said in the press or on the floor of the House in favor of the resolution. . . ." Kendrick, Journal of the Joint Committee on Reconstruction (1914) 217. A reading of the debates indicates that no member except Mr. Hale had contradicted Mr. Bingham's argument that without this Amendment the states had power to deprive persons of the rights guaranteed by the first eight amendments. Mr. Hale had conceded that he did not "know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen." Cong. Globe, supra, at 1064. But he was apparently unaware of the decision of this Court in Barron v. Baltimore, supra. For he thought that the protections of the Bill of Rights had already been "thrown over us in some way, whether with or without the sanction of a judicial decision . . .." And in any event, he insisted, ". . . the American people have not yet found that their State governments are insufficient to protect the rights and liberties of the citizen." He further objected, as had most of the other opponents to the proposal, that the Amendment authorized the Congress to "arrogate" to itself vast powers over all kinds of affairs which should properly be left to the States. Cong. Globe, supra, 1064-1065.
When Mr. Hotchkiss suggested that the amendment should be couched in terms of a prohibition against the States in addition to authorizing Congress to legislate
Important events which apparently affected the evolution of the Fourteenth Amendment transpired during the period during which discussion of it was postponed. The Freedman's Bureau Bill which made deprivation of certain civil rights of negroes an offense punishable by military tribunals had been passed. It applied, not to the entire country, but only to the South. On February 19, 1866, President Johnson had vetoed the bill principally on the ground that it was unconstitutional. Cong. Globe, supra, 915. Forthwith, a companion proposal known as the Civil Rights Bill empowering federal courts to punish those who deprived any person anywhere in the country of certain defined civil rights was pressed to passage. Senator Trumbull, Chairman of the Senate Judiciary Committee, who offered the bill in the Senate on behalf of that Committee, had stated that "the late slaveholding States" had enacted laws ". . . depriving persons of African descent of privileges which are essential to freemen . .. [S]tatutes of Mississippi . . . provide that . . . If any person of African descent residing in that State travels from one county to another without having a pass or a certificate of his freedom, he is liable to be committed to jail and to be dealt with as a person who is in the State without authority. Other provisions of the statute prohibit any negro or mulatto from having fire-arms; and one provision of the statute declares that for `exercising the functions of a minister of the Gospel free negroes . . . on conviction, may be punished by . . . lashes . .. .' Other provisions . . . prohibit a free negro . . . from keeping a house of entertainment, and subject him to trial before two justices of the peace and free slaveholders for
In the House, after Mr. Bingham's original proposal for a constitutional amendment had been rejected, the suggestion was also advanced that the bill secured for all "the right of speech,. . . transit, . . . domicil, . . . the right to sue, the writ of habeas corpus, and the right of petition." Cong. Globe, supra, 1263. And an opponent of the measure, Mr. Raymond, conceded that it would guarantee to the negro "the right of free passage . . . He has a defined status . . . a right to defend himself . . . to bear arms . . . to testify in the Federal courts. . ." Cong. Globe, supra, 1266-1267. But opponents took the position that without a constitutional amendment such as that proposed by Mr. Bingham, the Civil Rights Bill would be unconstitutional. Cong. Globe, supra, 1154-1155, 1263.
Mr. Bingham himself vigorously opposed and voted against the Bill. His objection was twofold: First, insofar as it extended the protections of the Bill of Rights as against state invasion, he believed the measure to be unconstitutional because of the Supreme Court's holding in Barron v. Baltimore, supra. While favoring the extension of the Bill of Rights guarantees as against state invasion, he thought this could be done only by passage of his amendment. His second objection to the Bill was that, in his view, it would go beyond his objective of making the states observe the Bill of Rights and would actually strip the states of power to govern, centralizing all power in the Federal Government. To this he was opposed. His views are in part reflected by his own remarks and the answers to him by Mr. Wilson. Mr. Bingham said, in part:
"But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the Republic within every organized State of the Union is of the reserve powers of the States, to be enforced by State tribunals .. . .
". . . I am with him in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country.
". . . I submit that the term civil rights includes every right that pertains to the citizen under the Constitution, laws, and Government of this country. . . .
". . . The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future. . . ."
"If the bill of rights, as has been solemnly ruled by the Supreme Court of the United States, does not limit the powers of States and prohibit such gross injustice by
". . . [T]he care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution. . . ." Cong. Globe, supra, 1291-1292.
Mr. Wilson, House sponsor of the Civil Rights Bill, answered Mr. Bingham's objections to it with these remarks:
"The gentleman from Ohio tells the House that civil rights involve all the rights that citizens have under the Government; that in the term are embraced those rights which belong to the citizen of the United States as such, and those which belong to a citizen of a State as such; and that this bill is not intended merely to enforce equality of rights, so far as they relate to citizens of the United States, but invades the States to enforce equality of rights in respect to those things which properly and rightfully depend on State regulations and laws. . . .
". . . I find in the bill of rights which the gentleman desires to have enforced by an amendment to the Constitution that `no person shall be deprived of life, liberty, or property without due process of law.' I understand that these constitute the civil rights belonging to the citizens in connection with those which are necessary for the protection and maintenance and perfect enjoyment of the rights thus specifically named, and these are the rights to
In vetoing the Civil Rights Bill, President Johnson said among other things that the bill was unconstitutional for many of the same reasons advanced by Mr. Bingham:
"Hitherto every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States. . . . As respects the Territories, they come within the power of Congress, for as to them, the law-making power is the Federal power; but as to the States no similar provisions exist, vesting in Congress the power `to make rules and regulations' for them." Cong. Globe, supra, 1679, 1680.
The bill, however, was passed over President Johnson's veto and in spite of the constitutional objections of Bingham and others. Cong. Globe, supra, 1809, 1861.
Thereafter the scene changed back to the Committee on Reconstruction. There Mr. Stevens had proposed an amendment, § 1 of which provided "No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude." Journal, 28. Mr. Bingham proposed an additional section providing that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Journal, 30. After the committee had twice declined to recommend Mr. Bingham's proposal, on April 28 it was accepted by the Committee, substantially in the form he had proposed it, as § 1 of the recommended Amendment. Journal, 44.
In introducing the proposed Amendment to the House on May 8, 1866, Mr. Stevens speaking for the Committee said:
"The first section [of the proposed amendment] prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the `equal' protection of the laws.
"I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted. in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all." Cong. Globe, 2459.
On May 23, 1866, Senator Howard introduced the proposed amendment to the Senate in the absence of Senator Fessenden who was sick. Senator Howard prefaced his remarks by stating:
"I . . . present to the Senate . . . the views and the motives [of the Reconstruction Committee]. . . . One result of their investigations has been the joint resolution for the amendment of the Constitution of the United States now under consideration. .. .
"The first section of the amendment . . . submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States,
"It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of its laws.
"It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. . . . I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. . . . But we may gather some intimation of what probably will be the opinion of the judiciary by referring to . . . Corfield vs. Coryell . . . 4 Washington's Circuit Court Reports. page 380. [Here Senator Howard quoted at length from that opinion.]
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner;
"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
"Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions,
Mr. Bingham had closed the debate in the House on the proposal prior to its consideration by the Senate. He said in part:
". . . [M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, `cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.
"It was an approbrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment." Cong. Globe, supra, 2542-2543.
Both proponents and opponents of § 1 of the amendment spoke of its relation to the Civil Rights Bill which had been previously passed over the President's veto. Some considered that the amendment settled any doubts there might be as to the constitutionality of the Civil Rights Bill. Cong. Globe, 2511, 2896. Others maintained that the Civil Rights Bill would be unconstitutional
Except for the addition of the first sentence of § 1 which defined citizenship, Cong. Globe, supra, 2869, the amendment weathered the Senate debate without substantial change. It is significant that several references were made in the Senate debate to Mr. Bingham's great responsibility for § 1 of the amendment as passed by the House. See e.g. Cong. Globe, supra, 2896.
Also just prior to the final votes in both Houses passing the resolution of adoption, the Report of the Joint Committee on Reconstruction, H.R. Rep. No. 30, 39th Cong., 1st Sess. (1866); Sen. Rep. No. 112, 39th Cong., 1st Sess. (1866), was submitted. Cong. Globe, supra, 3038, 3051. This report was apparently not distributed in time to influence the debates in Congress. But a student of the period reports that 150,000 copies of the Report and the testimony which it contained were printed in order that senators and representatives might distribute them among their constituents. Apparently the Report was widely reprinted in the press and used as a campaign document
The Report of the Committee had said with reference to the necessity of amending the Constitution:
". . . [T]he so-called Confederate States are not, at present, entitled to representation in the Congress of the United States; that, before allowing such representation, adequate security for future peace and safety should be required; that this can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic. . . ." Report, supra, XXI.
Among the examples recited by the testimony were discrimination against negro churches and preachers by local officials and criminal punishment of those who attended objectionable church services. Report, Part II, 52. Testimony also cited recently enacted Louisiana laws which made it "a highly penal offence for anyone to do anything that might be construed into encouraging the blacks to leave the persons with whom they had made contracts for labor. . . ." Report, Part III, p. 25.
Flack, supra at 142, who canvassed newspaper coverage and speeches concerning the popular discussion of the adoption of the Fourteenth Amendment, indicates that
"The declarations and statements of newspapers, writers and speakers, . . . show very clearly, . . . the general opinion held in the North. That opinion, briefly stated, was that the Amendment embodied the Civil Rights Bill and gave Congress the power to define and secure the privileges of citizens of the United States. There does not seem to have been any statement at all as to whether the first eight Amendments were to be made applicable to the States or not. Whether the privileges guaranteed by those Amendments were to be considered as privileges secured by the Amendment, but it may be inferred that this was recognized to be the logical result by those who thought that the freedom of speech and of the press as well as due process of law, including a jury trial, were secured by it." Flack, supra, 153-154.
Formal statements subsequent to adoption of the Amendment by the congressional leaders who participated in the drafting and enactment of it are significant. In 1871, a bill was before the House which contemplated enforcement of the Fourteenth Amendment. Mr. Garfield, who had participated in the debates on the Fourteenth Amendment in 1866, said:
"I now come to consider . . . for it is the basis of the pending bill, the fourteenth amendment. I ask the attention of the House to the first section of that amendment, as to its scope and meaning. I hope gentlemen will bear in mind that this debate, in which so many have taken part, will become historical, as the earliest legislative construction
"The next clause of the section under debate declares: `Nor shall any State deprive any person of life, liberty, or property, without due process of law.'
"This is copied from the fifth article of amendments, with this difference: as it stood in the fifth article it operated only as a restraint upon Congress, while here it is a direct restraint upon the governments of the States. The addition is very valuable. It realizes the full force and effect of the clause in Magna Charta, from which it was borrowed; and there is now no power in either the State or the national Government to deprive any person of those great fundamental rights on which all true freedom rests, the rights of life, liberty, and property, except by due process of law; that is, by an impartial trial according to the laws of the land. . . ." Cong. Globe, supra, at 152-3.
A few days earlier, in a debate on this same bill to enforce the Fourteenth Amendment, Mr. Bingham, still a member of Congress, had stated at length his understanding of the purpose of the Fourteenth Amendment as he had originally conceived it:
"Mr. Speaker, the honorable gentleman from Illinois [Mr. FARNSWORTH] did me unwittingly, great service, when he ventured to ask me why I changed the form of the first section of the fourteenth article of amendment from the form in which I reported it to the House in February, 1866, from the Committee on Reconstruction. I will answer the gentleman, sir, and answer him truthfully. I had the honor to frame the amendment as reported in February, 1866, and the first section, as it now
"That is the grant of power. It is full and complete. The gentleman says that amendment differs from the amendment reported by me in February; differs from the provision introduced and written by me, now in the fourteenth article of amendments. It differs in this: that it is, as it now stands in the Constitution, more comprehensive than as it was first proposed and reported in February, 1866. It embraces all and more than did the February proposition.
"The gentleman ventured upon saying that this amendment does not embrace all of the amendment prepared and reported by me with the consent of the committee in February, 1866. The amendment reported in February, and to which the gentleman refers, is as follows: `The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.'
"That is the amendment, and the whole of it, as reported in February, 1866. That amendment never was rejected by the House or Senate. A motion was made to lay it on the table, which was a test vote on the merits of it, and the motion failed. . . . I consented to and voted for the motion to postpone it. . . . Afterward, in the joint
"I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendment, as they stand, and I trust will forever stand, in the Constitution of my country. I had read — and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States — the great decision of Marshall in Barron vs. the Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: `The amendments [to the Constitution] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.' — 7 Peters p. 250.
"In this case the city had taken private property for public use, without compensation as alleged, and there was no redress for the wrong in the Supreme Court of the United States; and only for this reason, the first eight amendments were not limitations on the power of the States.
"And so afterward, in the case of the Lessee of Livingstone vs. Moore . . . the court ruled, `it is now settled that the amendments [to the Constitution] do not extend to the States.' They were but limitations upon Congress. Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights. Those amendments secured the citizens against any deprivation of any essential rights of person by any act of Congress, and among other things thereby they were secured
"In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February, 1866, to which the gentleman has alluded. I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: `Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Barron vs. The Mayor, &c. 7 Peters, 250.
"Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said `no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;' imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows: `No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law,
"I hope the gentleman now knows why I changed the form of the amendment of February, 1866.
"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Here Mr. Bingham recited verbatim the first eight articles.]
"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, `no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make.
"Mr. Speaker, that decision in the fourth of Washington's Circuit Court Reports, to which my learned colleague . . . has referred is only a construction of the second section, fourth article of the original Constitution, to wit, `The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' In that case the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own.
"In the case of The United States vs. Primrose, Mr. Webster said that — `For the purposes of trade, it is evidently not in the power of any State to impose any hindrance or embarrassment, &c., upon citizens of other States, or to place them, on coming there, upon a different
"The learned Justice Story declared that — `The intention of the clause ("the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,") was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances — Story on the Constitution, vol. 2, page 605.
"Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?
"Sir, before the ratification of the fourteenth amendment, the State could deny to any citizen the right of trial by jury, and it was done. Before that the State could abridge the freedom of the press, and it was so done in half of the States of the Union. Before that a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. The validity of that State restriction upon the rights of conscience and the duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of the United States; but nevertheless affirmed in obedience to the requirements of the Constitution. .. .
"Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter
". . . You say it is centralized power to restrain by law unlawful combinations in States against the Constitution and citizens of the United States, to enforce the Constitution and the rights of United States citizen [sic.] by national law, and to disperse by force, if need be, combinations too powerful to be overcome by judicial process, engaged in trampling underfoot the life and liberty, or destroying the property of the citizen.
"The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. They denied trial by jury, and he had no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials
"Mr. Speaker, I respectfully submit to the House and country that, by virtue of these amendments, it is competent for Congress to-day to provide by law that no man shall be held to answer in the tribunals of any State in this Union for any act made criminal by the laws of that State without a fair and impartial trial by jury. Congress never before has had the power to do it. It is also competent for Congress to provide that no citizen in any State shall be deprived of his property by State law or the judgment of a State court without just compensation therefor. Congress never before had the power so to declare. It is competent for the Congress of the United States to-day to declare that no State shall make or enforce any law which shall abridge the freedom of speech, the freedom of the press, or the right of the people peaceably to assemble together and petition for redress of grievances for these are of the rights of citizens of the United States defined in the Constitution and guarantied by the fourteenth amendment, and to enforce which Congress is thereby expressly empowered. . . ." Cong. Globe, 42d Cong., 1st Sess. (1871) App. 81, 83-85.
And the day after Mr. Garfield's address, Mr. Dawes, also a member of the 39th Congress, stated his understanding of the meaning of the Fourteenth Amendment:
"Sir, in the progress of constitutional liberty, when, in addition to those privileges and immunities [secured by the original Constitution . . . . there were added from time to time, by amendments, others, and these were augmented, amplified, and secured and fortified in the buttresses of the Constitution itself, he hardly comprehended the full scope and measure of the phrase which appears in this bill. Let me read, one by one, these
"Then, again, as if that were not enough, by another amendment he was secured against trial for any alleged offense except it be on the presentation of a grand jury, and he was protected against ever giving testimony against himself. [Italics supplied.] Then, sir, he was guarantied a speedy trial, and the right to confront every witness against him. Then in every controversy which should arise he had the right to have it decided by a jury of his peers. Then, sir, by another amendment, he was never to be required to give excessive bail, or be punished by cruel and unusual punishment. And still later, sir, after the bloody sacrifice of our four years war, we gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens who sprang into being, as it were, by the wave of a magic wand. Still further, every person born on the soil was made a citizen and clothed with them all.
"It is all these, Mr. Speaker, which are comprehended in the words `American citizen,' and it is to protect and to secure him in these rights, privileges, and immunities this bill is before the House. And the question to be settled is, whether by the Constitution, in which these provisions are
Hereafter appear statements in opinions of this Court rendered after adoption of the Fourteenth Amendment and prior to the Twining case which indicate a belief that the Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain application of the Bill of Rights to the states. See p. 75, note 6, supra.
In the Slaughter-House cases, 16 Wall. 36, 83, the dissenting opinion of Mr. Justice Field emphasized that the Fourteenth Amendment made a "citizen of a State . . . a citizen of the United States residing in that State." Id. at 95. But he enunciated a relatively limited number of privileges and immunities which he considered protected by national power from state interference by the Fourteenth Amendment. Apparently dissatisfied with the limited interpretation of Mr. Justice Field, Mr. Justice Bradley, although agreeing with all that Mr. Justice Field had said, wrote an additional dissent. Id. at 111. In it he said:
Mr. Justice Swayne joined in this opinion but added his own not inconsistent views. Id. at 124.
But in Walker v. Sauvinet, 92 U.S. 90, 92, when a majority of the Court held that "A trial by jury in suits at common law pending in the State courts is not . . . a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge," Mr. Justice Field and Mr. Justice Clifford dissented from "the opinion and judgment of the court." Id. at 93.
In Spies v. Illinois, 123 U.S. 131, counsel for the petitioners, Mr. J. Randolph Tucker, after enumerating the protections of the Bill of Rights, took this position:
The constitutional issues raised by this argument were not reached by the Court which disposed of the case on jurisdictional grounds.
However, Mr. Justice Field, in his dissenting opinion in O'Neil v. Vermont, 144 U.S. 323, 337, 361, stated that "after much reflection" he had become persuaded that the definition of privileges and immunities given by Mr. Tucker in Spies v. Illinois, supra, "is correct." And Mr. Justice Field went on to say that
Mr. Justice Harlan, and apparently Mr. Justice Brewer, concurred in this phase of Mr. Justice Field's dissent. Id. at 366, 370, 371.
For further exposition of these views see also the vigorous dissenting opinions of Mr. Justice Harlan in Hurtado v. California, 110 U.S. 516, 538, and Maxwell v. Dow, 176 U.S. 581, 605, as well as his dissenting opinion in Twining v. New Jersey, 211 U.S. 78, 114.
MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE concurs, dissenting.
While in substantial agreement with the views of MR. JUSTICE BLACK, I have one reservation and one addition to make.
That point, however, need not be pursued here inasmuch as the Fifth Amendment is explicit in its provision that no person shall be compelled in any criminal case to be a witness against himself. That provision, as MR. JUSTICE BLACK demonstrates, is a constituent part of the Fourteenth Amendment.
Moreover, it is my belief that this guarantee against self-incrimination has been violated in this case. Under California law, the judge or prosecutor may comment on the failure of the defendant in a criminal trial to explain or deny any evidence or facts introduced against him. As interpreted and applied in this case. such a provision compels a defendant to be a witness against himself in one of two ways:
1. If he does not take the stand, his silence is used as the basis for drawing unfavorable inferences against him as to matters which he might reasonably be expected to explain. Thus he is compelled. through his silence, to testify against himself. And silence can be as effective in this situation as oral statements.
2. If he does take the stand, thereby opening himself to cross-examination, so as to overcome the effects of the provision in question, he is necessarily compelled to testify against himself. In that case. his testimony on cross-examination is the result of the coercive pressure of the provision rather than his own volition.
We are obliged to give effect to the principle of freedom from self-incrimination. That principle is as applicable where the compelled testimony is in the form of silence as where it is composed of oral statements. Accordingly, I would reverse the judgment below.
". . . No person shall be twice put in jeopardy for the same offense; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury. . . ."
Penal Code of California, § 1323: "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. The failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by counsel."
"As the result of this examination, the only conclusion to be arrived at, as to the intention of Congress in proposing the amendments, and especially the first section of the Fourteenth Amendment, and the interpretation universally put upon it by every member of Congress, whether friend or foe, the interpretation in which all were agreed, was, in the words of Mr. Hale, `that it was intended to apply to every State which has failed to apply equal protection to life, liberty and property;' or in the words of Mr. Bingham, `that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons;' or in the language of Mr. Sumner, that it abolished `oligarchy, aristocracy, caste, or monopoly with peculiar privileges and powers.'"
State action must "be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as law of the land.'" Hebert v. Louisiana, 272 U.S. 312, 316.
The Sixth Amendment guarantees to one accused of crime a speedy, public trial before an impartial jury of the district where the crime was allegedly committed; it requires that the accused be informed of the nature of the charge against him, confronted with the witnesses against him, have compulsory process to obtain witnesses in his favor, and assistance of counsel.
The Eighth Amendment prohibits excessive bail, fines and cruel and unusual punishments.
A comprehensive analysis of the historical origins of the Fourteenth Amendment, Flack, The Adoption of the Fourteenth Amendment (1908) 94, concludes that "Congress, the House and the Senate, had the following objects and motives in view for submitting the first section of the Fourteenth Amendment to the States for ratification:
"1. To make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.
"2. To give validity to the Civil Rights Bill.
"3. To declare who were citizens of the United States."
A contemporary comment illustrates that the Slaughter-House interpretation of the Fourteenth Amendment was made without full regard for the congressional purpose or popular understanding.
"It must be admitted that the construction put upon the language of the first section of this amendment by the majority of the court is not its primary and most obvious signification. Ninety-nine out of every hundred educated men, upon reading this section over, would at first say that it forbade a state to make or enforce a law which abridged any privilege or immunity whatever of one who was a citizen of the United States; and it is only by an effort of ingenuity that any other sense can be discovered that it can be forced to bear. It is a little remarkable that, so far as the reports disclose, no one of the distinguished counsel who argued this great case (the Slaughter-House Cases), nor any one of the judges who sat in it, appears to have thought it worth while to consult the proceedings of the Congress which proposed this amendment, to ascertain what it was that they were seeking to accomplish. Nothing is more common than this. There is hardly a question raised as to the true meaning of a provision of the old, original Constitution that resort is not had to Elliott's Debates, to ascertain what the framers of the instrument declared at the time that they intended to accomplish. . . ." Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 So. L. Rev. (N.S.) 558, 563 (1879).
For a collection of other comments on the Slaughter-House cases, see 2 Warren, The Supreme Court in United States History (1937) c. 32.
By contrast it has been pointed out that freedom of speech was not protected by colonial or state constitutions prior to 1789 except for the right to speak freely in sessions of the legislatures. See Warren, The New "Liberty" under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 461 (1926).
See also Haines, The Law of Nature in State and Federal Decisions, 25 Yale L.J. 617 (1916); Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations on Legislatures, 2 Tex. L. Rev. 257 (1924), 3 Tex. L. Rev. 1 (1924); The Revival of Natural Law Concepts (1930); The American Doctrine of Judicial Supremacy (1932); The Role of the Supreme Court in American Government and Politics (1944).