Palko v. Connecticut 302 U.S. 319 (1937)
PALKO v. CONNECTICUT 302 U.S. 319 (1937)
Palko, decided in the sesquicentennial year of the Constitution, highlights the difference between the constitutional law of criminal justice then and now. The Palko Court, which was unanimous, included five of the greatest judges in our history—charles evans hughes, louis d. brandeis, harlan fiske stone, hugo l. black, and the Court's spokesman, benjamin n. cardozo. In one respect Cardozo's opinion is a historical relic, like hurtado v. california (1884), maxwell v. dow (1900), and twining v. new jersey (1908), which he cited as governing precedents. In another respect, Palko rationalized the Court's incorporation doctrine of the fourteenth amendment by which it selected fundamental rights to be safeguarded against state violation.
Palko was sentenced to life imprisonment after a jury found him guilty of murder in the second degree. The state sought and won a new trial on the ground that its case had been prejudiced by errors of the trial court. Palko objected that a new trial on the same indictment exposed him to double jeopardy, but he was overruled. At the second trial the jury's verdict of murder in the first degree resulted in a sentence of death. Had the case been tried in a federal court, the double jeopardy claim would have been good. The question raised by Palko's case was whether a double standard prevailed—one for state courts and the other for federal—or whether the Fifth Amendment's guarantee against double jeopardy applied to the state through the due process clause of the Fourteenth Amendment.
Cardozo declared that Palko's contention was even broader: "Whatever would be a violation of the original bill of rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." The Court answered, "There is no such general rule," thus rejecting the theory of total incorporation. Nevertheless, said Cardozo, by a "process of absorption"—now referred to as selective incorporation—the Court had extended the due process clause of the Fourteenth Amendment to include first amendment freedoms and the right to counsel in certain cases, yet it had rejected the rights of the criminally accused, excepting representation by counsel for ignorant indigents in capital prosecutions. The rationalizing principle that gave coherence to the absorption process, Cardozo alleged, depended on a distinction among the various rights. Some were "fundamental" or "of the very essence of a scheme of ordered liberty, " like freedom of speech or religion. By contrast, trial by jury, indictment by grand jury, and the right against self-incrimination were not: justice might be done without them. The right against double jeopardy, the Court ruled summarily, did not rank as fundamental and therefore received no protection against the states from the due process clause of the Fourteenth Amendment. benton v. maryland (1969) overruled Palko, showing that even "fundamental" value judgments change with time. All that remains of Palko is the abstract principle of selective incorporation.
Leonard W. Levy