Palko v. Connecticut, 302 U.S. 319 (1937), argued 12 Nov. 1937, decided 6 Dec. 1937 by vote of 8 to 1; Cardozo for the Court, Butler in dissent. Palko was tried for first‐degree murder, but a jury found him guilty of the lesser crime of second‐degree murder and sentenced him to life imprisonment. The state appealed this conviction under a Connecticut statute that permitted the prosecution to appeal the judgment of the trial court in certain criminal cases. The state won a new trial, which resulted in Palko being convicted of the greater charge and sentenced to death. Arguing that this chain of events placed him twice in jeopardy for the same offense, Palko appealed the second conviction.
The
Fifth Amendment, which provides immunity from
double jeopardy, applies only to the federal government, not to the states. Palko's appeal did not rely on the Fifth Amendment alone, however. He claimed the execution of his sentence would violate the
Fourteenth Amendment guarantee that no state shall deprive a person of life, liberty, or property without due process of law. The theory of his case was borrowed from Justice John
Harlan's dissents in
Twining v. New Jersey (1908) and
Hurtado v. California (1884). Harlan believed that whatever would be a violation of the original
Bill of Rights if done by the federal government was equally unlawful under the Fourteenth Amendment if done by the states. In
Twining, a case involving the Fifth Amendment protection against
self‐incrimination, the Court rejected this theory, but it later applied other parts of the Bill of Rights to the states.
First Amendment freedoms of
speech,
assembly, and
religion had been applied in this manner, as was the
Sixth Amendment guarantee of the right to
counsel.
While recognizing this trend, the Court pointedly rejected Palko's thesis. Justice Benjamin
Cardozo noted that cases holding the opposite existed as well. Parts of the Bill of Rights had surely been applied to the states, he admitted, but not as the automatic consequence of the first eight amendments being incorporated into the due process guarantee of the Fourteenth Amendment. Rather, some select protections were absorbed into the concept of due process only because they are fundamental to our notions of liberty and justice. In Cardozo's words, these rights imposed limits on the states because “they represented the very essence of a scheme of ordered liberty, … principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental” (p. 325). He concluded that the Connecticut statute did not fall into this category. The state had done no more than seek a trial free of substantial error. It had not subjected the accused to acute and shocking hardships nor attempted to wear him down by multiple trials.
Palko represents the beginning of a struggle to find a test for applying the Due Process Clause of the Fourteenth Amendment as a limit on state power. For more than thirty years the Court had used the doctrine of substantive
due process to exercise virtual veto power over all forms of state economic regulation. In 1937 most justices accepted the idea that the Due Process Clause gave the Court authority to review the substance of state legislation as well as the procedure by which laws were enforced. However, in
West Coast Hotel v. Parrish (1937), decided in the same term as
Palko, they rejected the uninhibited use of this power and the
judicial activism it represented. Now the Court was faced with the problem of replacing an open‐ended standard with one that was more restrictive. In this respect, Cardozo's opinion was a precursor of the “incorporation debate” that became so evident later in
Adamson v. California (1947). His rationale for upholding the Connecticut law developed into the “fundamental fairness” test later championed by Justice Felix
Frankfurter, while the theory he rejected became known as the
incorporation doctrine favored by Justice Hugo
Black. A variation of the incorporation doctrine won out, as many of the protections of the Bill of Rights eventually were applied directly to the states. In 1969
Palko was overruled by
Benton v. Maryland, and double jeopardy became one of those provisions of the Bill of Rights selectively incorporated into the Fourteenth Amendment.
See also
Due Process, Procedural;
Fundamental Rights.
Paul Kens
