Liberty Defined - Part 4

Based on its rulings on the First Amendment in the 1920's, the Court seemed on track to embrace the incorporation doctrine. Until it wasn’t.

In Palko v. Connecticut, 302 U.S. 319 (1937), the appellant was convicted of murder in the second degree and sentenced to life in prison. At the time, Connecticut had a statute permitting the state to appeal in criminal cases. The state did appeal, arguing that certain rulings prejudiced its case. The Connecticut high court granted the state a new trial where it could again seek a conviction for murder in the first degree rather than the second-degree conviction found by a jury at trial. To the modern ear, this sounds shocking as it exemplifies double jeopardy as prohibited by the Fifth Amendment.

But, it happened.

Over objection, including a specific objection arguing a violation of the Fourteenth Amendment, Mr. Palko was again put to trial and again convicted – this time for first-degree murder carrying a sentence of death.

The Supreme Court of the United States took the case. The appellant argued that whatever action by the federal government that would constitute a violation of any of the Bill of Rights should be a violation of the Fourteenth Amendment if that same action were taken by the states. The Court disagreed and determined that this Connecticut statute -- essentially allowing for double jeopardy -- did not violate the Fourteenth Amendment. The prohibition against double jeopardy did not apply to state trials. The Court asked whether double jeopardy was a denial of due process within the meaning of the Fourteenth Amendment and answered that it was not. Id. at 323.

Connecticut executed Frank Palko just 4 months after the Supreme Court ruled against him (note: apparently his name was Frank Palka, but in every court document it is spelled Palko.)

After those breakthrough incorporation cases regarding the First Amendment, a string of cases followed that sound positively chilling today. The Court ruled that indictment by grand jury is not constitutionally required for a murder charge. See, Gaines v. Washington, 277 U.S. 81 (1928). The Court allowed states to do away with the prohibition against self incrimination if it chose to and reaffirmed that notion in Palko v. Connecticut, supra. See, Twining v. New Jersey, 211 U.S. 78 (1908).

The Court determined that trial by jury was not required in state courts for either criminal or civil cases. Palko v. Connecticut, 302 U.S. at 324 (“The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed $20. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether.”)  It is even unclear whether Powell v. Alabama, 287 U.S. 45 (1932) fully incorporated the Sixth Amendment right to counsel in criminal cases through the Fourteenth Amendment or whether it recognized a separate basic due process right to counsel in criminal cases as per the due process clause of the Fourteenth Amendment.

Indeed, as the Court noted in Palko, supra, “The decision [in Powell v. Alabama, supra] did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.” Palko v. Connecticut, 302 U.S. at 327.

In any event, the Court, in Palko, declared that it would recognize the incorporation of rights outlined in the Constitutional amendments only if they were implicit to the concept of ordered liberty. “The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Palko v. Connecticut, 302 U.S. at 326 (citations and internal quotation marks omitted)(emphasis added).

It ruled that an appeal by the government when it failed to get the verdict it sought was not so rooted in the traditions and conscience of American fundamental values. Instead, it averred that the second prosecution for the same crime where, after the first conviction following an imperfect trial where the government did not get every ruling it sought for evidentiary purposes, the defendant would have spent his life in prison and after the second, when it got the benefit of more favorable evidentiary rulings, he would be condemned to death was not cruel or vexatious. “The conviction of appellant is not in derogation of any privileges or immunities that belong to him as a citizen of the United States.” Id. at 328.

Think about that.

It is nearly unfathomable to our modern legal thinking that this could possibly be a legitimate interpretation of the United States Constitution. That is because a few decades later, the Court changed its mind and overturned Palko v. Connecticut in Benton v. Maryland, 395 U.S. 784 (1969), a decision authored by Justice Thurgood Marshall.

But after the onslaught of cases where the rights, privileges, and immunities guaranteed by the First Amendment were unceremoniously incorporated to the states through the Fourteenth Amendment, the Court still struggled to determine how much authority it would have over state governments and state courts by virtue of the Fourteenth Amendment.

There is no evidence to suggest that state governments were, in any way, pressured by their constituents to prohibit double jeopardy following Palko. Undoubtedly, there were other cases in state courts in which criminal defendants were retried for the same crime and subjected to harsher penalties. It is unclear whether any trial in which the state appealed evidentiary rulings following acquittal could result in a new trial for the same defendant in a criminal matter. Or, if the jury in the second trial voted to acquit, whether the state would get the benefit of the first verdict or be bound by the acquittal. It is also unclear if states would appoint and pay for counsel in these successive prosecutions. Fortunately, that moment has passed. Hopefully, for good. (but, given the current political climate and desire to reinstate the past as prologue, is Benton v. Maryland, supra, secure precedent or, as with Roe v. Wade, 410 U.S. 113 (1973), a passing fancy of Fourteenth Amendment jurisprudence?)

The Court has never backtracked on incorporating the First Amendment to the states. Freedom of thought, of religion, of assembly are somehow fundamental rights (though sometimes interpreted somewhat creatively), but it seemed very hesitant to incorporate the other amendments, going so far as to say that the prohibition against double jeopardy was not necessarily a fundamental right of being an American just 12 years after acknowledging the incorporation doctrine as fact in Gitlow v. New York, 268 U.S. 652 (1925).

It turns out that liberty itself is not only fragile, but somewhat poorly defined. We really have not determined, as a nation, what it means to be an American, or even what it means when we say we are defending the Constitution. Are we defending this 1937 interpretation or the more modern view? The words in the Constitution did not change, the history did not change, so what did change between 1937 and 1969 that caused a reinterpretation of the same words on a different day? And, are we at risk today of a revision back to the 1937 view? Knowing how tenuous this hold on liberty is, what should we be doing - in Congress, in state legislatures, in state courts - to ensure that when we talk about Constitutional principles, we are all on the same page as to what exactly we mean?