I. Drive for a Bill of Rights
Jefferson-Madison Correspondence, 1787-1789
TJ-JM, 20 Dec. 1787: TJ indicates that he dislikes the omission of a Bill of Rights in the draft of the proposed new Constitution JM had recently sent to him in France [READ
1:389, col. 1 --Beginning with “First the omission . . . the law of Nations” ] & also [READ
2:389, col. 2-Beginning with “Let me add . . .or rest on inference.” ]
JM-TJ, 17 Oct. 1788: JM responds in apparent agreement [READ 1:389, col. 2--
Beginning with “My own opinion . . . majorities in every State” ] & also [READ 2:390, col. 1 -- Beginning with “Wherever there is an . . . sense of the community.” ]
TJ-JM, 15 Mar. 1789: In response TJ brings up judicial review as one of the good arguments for a declaration of rights [READ: 390*, col. 2
—Beginning with “. . . In the arguments . . . learning and integrity.”
]
JM’s Speech In House of Representatives on the Bill of Rights, 8 Jun. 1789:
[READ: 1:391, col. 1-Beginning with
“It is true, there . . . declaration of rights.”
] & also [READ 2:391, col. 2-Beginning with “I think there is more . . .upon those particular rights.” ]
1

PALKO V. CONNECTICUT (1937) (391)
302 US 319
FACTS: (see text)
QUESTION: Is the appellant deprived of “due process of law” under the 14 th
amendment and the 5 th
amendment’s “double jeopardy clause” when a new trial is granted to the State
(due to errors of law in the first trial harmful to the state) results in a death sentence after the first trial had resulted in a sentence of life in prison?
ANSWER: No!
REASONING: Cardozo delivers the O.C. for the 8-1 majority
Appellant had argued that whatever is forbidden to the federal government by the Fifth
Amendment is also forbidden to the state governments by the 14 th Amendment
(due process clause) [see 1:392].
Cardozo rejects this argument.
[In 1925, justices had begun to include specific rights of the Bill of Rights in the
14 th
Amendment, namely the 1 st
Amendment rights.]
Cardozo says that some rights in the B of R are included in the 14 th
A., but not all of them [Read 392*]. He indicates that those rights in the B of R that had been absorbed into the 14 th
A. had been so absorbed only because “the state held the belief that neither liberty nor justice would exist if they were sacrificed.”
[Read 2:392]
Note that Cardozo does not say that protection from double jeopardy is not part of the due process clause, as most scholars claim.
2

He deals only with a very unusual and specific statute which says that the defendant could only be retried for a higher sentence if the lesser sentence had been a direct result of a mistake made by the judge in the first trial. The prosecutor and the trial judge had to agree to appeal to a higher court in order to get permission for a retrial.
Cardozo is referring only to this kind of double jeopardy, not all double jeopardy in his opinion, which helps to explain the special language he uses near the end of the opinion [Read 3:392-393].
This opinion was not finally overruled until 1969 in Benton v.
Maryland.
ADAMSON V. CALIFORNIA (1947) (393)
332 U.S. 46
FACTS: (See text)
QUESTION: Is Adamson’s death sentence a violation of due process because the prosecutor was permitted (under state law) to comment on Adamson’s refusal to testify as implying that he was guilty (since he was hiding behind the privilege against self-incrimination)?
[This case involves the due process clause of the 5 th
A. as well as the 14 th
A.]
ANSWER: No!
REASONING: Reed writes the O.C. for the 5-4 majority. The O.C. is relatively unimportant;
Reed essentially follows the Palko analysis and finds the violation here to be insufficiently fundamental.
3

[We read this case because of the classic debate between Black and Frankfurter over the correct interpretation of the 14 th A.]
Black picks up on arguments made by Justice Harlan in his dissent in the 1884 case of
Hurtado v. California.
In that case, Justice Matthews in the O.C. held that the information procedure was an acceptable substitute that states could use instead of the grand jury system to protect the due process rights of those criminally accused. Accordingly. Hurtado’s murder conviction attained without a grand jury indictment, but following an “information” process, was not a violation of a fundamental right, even though it would have violated due process in a federal court because of the GJ provision in the 5 th
A. Harlan claimed that the 14 th
A. was designed to protect the fundamental rights of citizens against state actions.
He also claims that would include most, if not all of the rights in the B of R. Both
Matthews and Harlan invoke fundamental rights (as would Palko 53 years later), but Black eschews resort to language of fundamental rights.
Black does not say that rights in the B of R should go into 14 th A d.p. because they are fundamental; Black says that rights in the B of R are imposed on the states through the 14 th A because that was the intention of the framers of that amendment. [Read 2:395]
Black’s historical evidence here is rather shakey—he only showed that two of the principal sponsors and drafters of the 14 th
A. thought it would incorporate the Bof R to the states][see Duncan v. Louisiana
(1968) for more debate on this]
4

Black rails against the Court’s fundamental rights approach to d.p. [Read 1:395
& 3:395]. Note that Black does not limit his argument to d.p.; he addresses the entire 14 th
A.
Frankfurter responds to Black arguing for the fundamental approach. He also attacks
Black’s invocation of Harlan’s dissent [Read 2:394] . He further argues that d.p. is a dynamic concept and has its own independent power [Read 3:394 & 4:394] .
{He also mocks the fall back position of selective incorporation (which would be effective in this case for Black) .
Murphy adds something new to the debate in his dissent. [Read 150*]}
In Rochin v. California (1952) ( 342 U.S. 165) “ Round 2” in the debate between Frankfurter and the “incorporationists” (led by Black) in a case which held that a violation of the d.p. cl. of the 14 th
A. that doesn’t have a direct relation to a right in the B of R can lead to reversal of a criminal conviction. Frankfurter’s o.c. for a unanimous court was interspersed with a critique of the incorporationists (Black & Douglas). So Black wrote a concurrence saying that the police conduct in this case violated the protection against self-incrimination and also pokes fun at the squishiness of the majority’s view of d.p..
DUNCAN V. LOUISIANA (1968) (195) (Round 3)
391 U.S. 145
5

FACTS: Appellant was convicted of a misdemeanor (simple battery) punishable by two years’ imprisonment and a fine (of $300). The judge denied Duncan’s request for a jury trial since under state law a jury trial was only required in cases in which capital punishment or imprisonment at hard labor could result. After exhausting all state remedies, Duncan appealed to the USSC.
QUESTION: Does the 14 th
A. (through the extension of 5 th
and 6 th
amendments) require states to provide a jury trial to one who is facing criminal charges that could result in a two year prison term?
ANSWER: Yes!
REASONING: White wrote the O.C. for a 7-2 majority.
White says that the Court has adopted (absorbed) the jury trial provision of the Sixth
Amendment as a fundamental right. This conclusion is based on their finding that the particular process in question is fundamental to the Anglo-American system and tradition (a new test) . [Read 1:396] White placed the crucial reasoning leading to this new test in a footnote (fn. 11) to his opinion, where he writes:
[READ 2:396].
{Recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether,
6

that is, a procedure is necessary to an Anglo-American regime of ordered liberty. [M &S 5 th Ed., p. 494]}
White also addresses Louisiana’s “final contention”
[Read 2:155] , and he concludes that it’s not the sentence imposed by the trial court but the maximum punishment that can be imposed under the state’s law that must be used to sort petty crimes from serious crimes in this context. [See
3:156]
Black’s concurrence includes a very long passage in which he restates his position in
Adamson and directly answers his critic Professor Charles Fairman. [M &S 5 th
Ed., p. 495]
Black then harshly criticizes Harlan’s dissent [Read 3:397].
{He also reiterates his support of total incorporation [Read 1:157 ], but accepts the
Court’s use of “selective incorporation” with slight reservation
[Read
2:157] .
Harlan’s dissent (perhaps his best opinion per J. Landynski): Harlan asks, how can a jury trial be a fundamental right, if it’s the exception in this country and not the rule?
(in a section of the opinion we don’t have). [Hinted at on 2:397]
He’s against complete incorporation, because he’s convinced it’s not historically correct, and he’s even more dissatisfied with selective incorporation and the baggage it brings with it.
Fortas’s concurrence questions the need for complete uniformity in all details of those rights selectively incorporated.
7