Liberty Defined - Part 6

We are heading back to another aspect of the Fifth Amendment today. We already learned that double jeopardy was not considered such a fundamental privilege or immunity or so essential to due process until it was and now it is. Whew!

But, what about the time honored right to remain silent? Surely that is a core aspect of ordered liberty – it was specifically included in almost every colony-turned-state constitution early on. I mean, even leaving it out of the state constitution might not be fatal if common law so protects this right that – duh – of course it falls within basic due process. Right? Well…

Our journey starts with a case that said (with the exception of a gorgeous and must-read dissent by Justice Harlan) …ummm…no. In Twining v. New Jersey, 211 U.S. 78 (1908), the Court acknowledged that nearly every early state constitution included an exemption from self-incrimination; New Jersey did not. So, when New Jersey’s highest court upheld convictions where the defendants’ silence was used to convict them, it was not a violation of a fundamental privilege or immunity or right to due process as envisioned by the Fourteenth Amendment. The details of the case are immaterial, but the Court’s analysis is brutal. Despite the language of and, I would argue, the purpose of the Fourteenth Amendment and the ancient history of the right not to be compelled to be a witness against oneself dating back hundreds of years, Justice Moody found a way to say that – even though if the trial had been held in federal court this could not occur due to the Fifth Amendment’s protections, states are free to either force testimony or use silence as they see fit.

Justice Moody hailed from the great Commonwealth of Massachusetts (which does, in fact, prohibit forced self incrimination in its Constitution). He was renowned for his progressive ideals and his vigorous opposition to segregation and defense of civil rights. Which is why it is so heartbreaking that he authored this – just flat out wrong – opinion. How wrong was it – even in its day? Just look to the dissent. The vitriol drips off of the words penned by Justice Harlan:

Can there be any doubt that, at the opening of the War of Independence, the people of the colonies claimed as one of their birthrights the privilege of immunity from self-incrimination? This question can be answered in but one way. If, at the beginning of the Revolutionary War, any lawyer had claimed that one accused of crime could lawfully be compelled to testify against himself, he would have been laughed at by his brethren of the bar, both in England and America.

Id. at 119 (Harlan, J. dissenting).

Justice Harlan then goes – state by state – explaining that the establishment of state government in virtually every instance included this fundamental right before the federal Constitution was written. He went on to note,

At the close of the late Civil War, which had seriously disturbed the foundations of our governmental system, the question arose whether provision should not be made by constitutional Amendments to secure against attack by the states the rights, privileges, and immunities which, by the original Amendments, had been placed beyond the power of the United States or any Federal agency to impair or destroy. Those rights, privileges, and immunities had not then, in terms, been guarded by the national Constitution against impairment or destruction by the states, although, before the adoption of the 14th Amendment, every state, without, perhaps, an exception, had, in some form, recognized, as part of its fundamental law, most, if not all, the rights and immunities mentioned in the original Amendments, among them immunity from self-incrimination.

Id. at 121.

It is really important to explain that the men on the Court at the time Twining was written lived through the Civil War – ratification of the Fourteenth Amendment happened in their cognitive lifetime. Every single person on the Court understood what it took for the Union to survive and lived through why the Fourteenth Amendment was so essential to its future. But Justice Harlan was the only one who fought consistently that one of the aspects of the Amendment was to incorporate the Bill of Rights to the states.

SIDEBAR: Justice Harlan was born into a wealthy slave-holding family in the antebellum South and he enslaved people himself – not freeing them until forced to by the passage of the Thirteenth Amendment. He was a lawyer in his late twenties-early thirties during the United States Civil War. A staunch Unionist, he enlisted and became an officer in the Union Army fighting, in amongst other battles, in the Battle of Mill Springs and the Battle of Shiloh.  He resigned his position during the war when his father died, opposed the Emancipation Proclamation and the Thirteenth Amendment, and voted for McClellan for president in 1864. But, something changed in him - he became a Republican and grew to support the policies of Reconstruction he initially opposed. Indeed, on the Court, he urged full incorporation of rights through the Fourteenth Amendment and wrote dissenting opinions including in Plessy v. Ferguson, 163 U.S. 537 (1896) and Giles v. Harris, 189 U.S. 475 (1903). He was anti-imperialist and opposed treating citizens of territories, like Puerto Rico, differently from other US Citizens. But he was also pretty racist in regard to Asians and wrote a dissent in United States v. Wong Kim Ark, 169 U.S. 649 (1898). As are most interesting people, he was complex – neither hero nor villain. Some of his dissenting opinions were cringeworthy, but others, like the one in Twining, were inspiring.

Okay – but this is about how federal rights became national via the demands of the Fourteenth Amendment. That is gonna take some time.

In California in 1947, Admiral Dewey Adamson (this is his given name – he was not in the military), a Black man with a criminal record, was charged with murder due to some (arguably questionable) forensic and circumstantial evidence. Adamson v. California, 332 U.S. 46 (1947). California had a statute that permitted the state to comment on a defendant’s failure to testify at trial. This raised a Hobson’s Choice for those previously convicted of crimes to choose between having his prior offenses disclosed to the jury or of permitting adverse inferences from uncontradicted evidence. Given Adamson’s past record, he chose not to testify and the court’s instructions allowed the jury to use that silence against him. He argued that the statute was unconstitutional under the Fourteenth Amendment. He lost. The Court upheld Twining. Adamson was killed in a gas chamber on December 9, 1949 at the age of 49.

Justice Black wrote a scathing history lesson must-read dissent (with an appendix recounting the passage of the Fourteenth Amendment)! Like Justice Harlan, Justice Black was a stalwart for the incorporation doctrine. His dissent in Adamson reminds the Court that since Twining, it ruled that coerced confessions could not be used to convict defendants. Adamson v. California, 332 at 86 (Black, J. dissenting). And, he said,

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…

Id., 332 U.S. at 89 (Black, J. dissenting).

Amen.

It would take nearly two decades more, but Justice Black would finally prevail when it came to incorporating the Fifth Amendment’s proverbial right to remain silent to the states via the Fourteenth Amendment. While Justice Black was still on the Court, Justice Brennan wrote the opinion in Malloy v. Hogan, 378 U.S. 1 (1964). The facts of that case were very different, but the basic idea was the same. The defendant was jailed for failing to testify. In overruling both Twining and Adamson, the Court noted that it has always been open to revisiting past opinions. Malloy v. Hogan, 378 U.S. at 5. Indeed, the case came on the heels of Mapp v. Ohio, 367 U.S. 643 (1961) where the Court overturned its prior decisions in regard to whether states were bound by the Fourth Amendment's prohibition against unreasonable searches and seizures.

Justice Black silently joined the majority opinion along with Justices Douglas, Goldberg, and Warren (CJ). But, there were rousing dissents including one by Justices White and Stewart and another by Justice Clark and the grandson of the great dissenter, Harlan. That’s right – rather than vindicating his grandfather’s incredibly forceful defense of incorporation from Twining, Justice Harlan wrote one of the two dissents in Malloy v. Hogan in which he avers, Id. at 33,

The Court’s reference to a federal standard is, to put it bluntly, simply an excuse for the Court to substitute its own superficial assessment of the facts and state law for the careful and better informed conclusions of the state court. No one who scans the two opinions with an objective eye will, I think reach any other conclusion.

I would affirm.

It is said that Justic Harlan wore a gold watch that belonged to his grandfather and used the same furniture he had when he was on the Court. He was as complex a person and as independent a thinker as was his grandfather. To get a sense of who he was, maybe look to his dissent from the Court’s refusal to take on the case of Poe v. Ullman, 367 U.S. 497 (1961). The case raised the issue that Connecticut’s state law prohibiting contraceptives and medical advice regarding contraceptives violated due process under the Fourteenth Amendment. Let me make that a bit more clear – married couples who wanted to use birth control faced criminal prosecution for seeking contraceptives or medical advice regarding contraceptives and doctors faced criminal charges for advising married couples regarding contraception. A majority of the Court – including Justice Brennan – dismissed the claim averring no federal jurisdiction. Justice Harlan dissented – he would have heard the case. And, indeed, his dissent in Poe is as epic and as forceful as his grandfather’s in Twining. He said,

I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life.

Poe v. Ullman, 367 U.S at 540 (Harlan, J. dissenting).

As the world turns, this position would come to pass just four years later in Griswold v. Connecticut, 381 U.S. 479 (1965). Justice Harlan was still on the Court so you would think he would be given the honor of writing the majority opinion. Only... he did not join the majority, opting instead to concur int he judgment in an opinion all his own which declared that privacy itself is protected by the Due Process Clause of the Fourteenth Amendment.

And on it goes. Next up - speedy trials. Did the states become bound by this Sixth Amendment right, and if so when and how? Stay tuned as we follow the saga of the incorporation doctrine.