332 U.S. 46 (1947)
The California Constitution and penal code permitted the
trial judge and prosecuting attorneys to comment adversely upon, and juries to
consider as evidence of guilt, a defendant’s failure to testify on his own
behalf. Admiral Dewey Adamson had declined to testify at his trial for
first-degree murder. In the presentation of the case to the jury, the
prosecuting attorneys argued that Adamson’s refusal to testify was an
indication of his guilt. He was convicted and sentenced to death. His
conviction was affirmed by the state supreme court and appealed to the US
Supreme Court. Opinion of the Court: Reed, Vinson, Frankfurter,
Jackson, Burton. Concurring opinion: Frankfurter. Dissenting
opinions: Black, Douglas; Murphy, Rutledge.
JUSTICE REED delivered the opinion of the Court.
Appellant urges that the provision of the Fifth Amendment
that no person “shall be compelled in any criminal case to be a witness against
himself” is a fundamental national privilege or immunity protected against
state abridgment by the Fourteenth Amendment or a privilege or immunity
secured, through the Fourteenth Amendment, against deprivation by state action
because it is a personal right, enumerated in the federal Bill of Rights.
It is settled law that the clause of the Fifth Amendment,
protecting a person against being compelled to be a witness against himself, is
not made effective by the Fourteenth Amendment as a protection against state
action on the ground that freedom from testimonial compulsion is a right of
national citizenship, or because it is a personal privilege or immunity secured
by the Federal Constitution as one of the rights of man that are listed in the
Bill of Rights.
The reasoning that leads to those conclusions starts with
the unquestioned premise that the Bill of Rights, when adopted, was for the
protection of the individual against the federal government and its provisions
were inapplicable to similar actions done by the states. With the adoption of
the Fourteenth Amendment, it was suggested that the dual citizenship recognized
by its first sentence secured for citizens federal protection for their
elemental privileges and immunities of state citizenship. The
Slaughter-House Cases decided, contrary to the suggestion, that these
rights, as privileges and immunities of state citizenship, remained under the
sole protection of the state governments. This Court, without the expression of
a contrary view upon that phase of the issues before the Court, has approved
this determination. This leaves a state free to abridge, within the limits of the
due process clause, the privileges and immunities flowing from state
citizenship. This reading of the Federal Constitution has heretofore found
favor with the majority of this Court as a natural and
logical interpretation. It accords with the constitutional doctrine of
federalism by leaving to the states the responsibility of dealing with the
privileges and immunities of their citizens except those inherent in national
citizenship. It is the construction placed upon the amendment by justices
whose own experience had given them contemporaneous knowledge of the purposes
that led to the adoption of the Fourteenth Amendment. This construction has
become embedded in our federal system as a functioning element in preserving
the balance between national and state power. We reaffirm the conclusion that
protection against self-incrimination is not a privilege or immunity of
national citizenship.
JUSTICE FRANKFURTER, concurring.
The short answer to the suggestion that the provision of the
Fourteenth Amendment, which ordains “nor shall any State deprive any person of
life, liberty, or property, without due process of law,” was a way of saying
that every State must thereafter initiate prosecutions through indictment by a
grand jury, must have trial by such a jury of twelve in criminal cases, and
must have trial by such a jury in common law suits where the amount in
controversy exceeds twenty dollars, is that it is a strange way of saying it.
It would be extraordinarily strange for a Constitution to convey such specific
commands in such a roundabout and inexplicit way. Those reading the English
language with the meaning which it ordinarily conveys, those conversant with
the political and legal history of the concept of due process, those sensitive
to the relations of the States to the central government as well as the
relation of some of the provisions of the Bill of Rights to the process of
justice, would hardly recognize the Fourteenth Amendment as a cover for the
various explicit provisions of the first eight Amendments. Some of these are
enduring reflections of experience with human nature, while some express the
restricted views of Eighteenth-Century England regarding the best methods for
the ascertainment of facts.
It may not be amiss to restate the pervasive function of the
Fourteenth Amendment in exacting from the States observance of basic liberties.
The Amendment neither comprehends the specific provisions by which the founders
deemed it appropriate to restrict the Federal Government nor is it confined to
them. The Due Process Clause of the Fourteenth Amendment has an independent
potency, precisely as does the Due Process Clause of the Fifth Amendment in
relation to the Federal Government. It ought not to require argument to reject
the notion that due process of law meant one thing in the Fifth Amendment and
another in the Fourteenth. The Fifth Amendment specifically prohibits
prosecution of an “infamous crime” except upon indictment; it forbids double
jeopardy; it bars compelling a person to be a witness against himself in any
criminal case; it precludes deprivation of “life, liberty, or property, without
due process of law.” Are Madison and his contemporaries in the framing of the
Bill of Rights to be charged with writing into it a meaningless clause? To
consider “due process of law” as merely a shorthand statement of other specific
clauses in the same amendment is to attribute to the authors and proponents of
this Amendment ignorance of, or indifference to, a historic conception which
was one of the great instruments in the arsenal of constitutional freedom which
the Bill of Rights was to protect and strengthen.
The relevant question is whether the criminal proceedings
which resulted in conviction deprived the accused of the due process of law to
which the United States Constitution entitled him. Judicial review of that
guaranty of the Fourteenth Amendment inescapably imposes upon this Court an
exercise of judgment upon the whole course of the proceedings in order to
ascertain whether they offend those canons of decency and fairness which
express the notions of justice of English-speaking peoples even toward those
charged with the most heinous offenses. These standards of justice are not
authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia.
But neither does the application of the Due Process Clause imply that judges
are wholly at large. The judicial judgment in applying the Due Process Clause
must move within the limits of accepted notions of justice and is not to be
based upon the idiosyncrasies of a merely personal judgment. The fact that
judges among themselves may differ whether in a particular
case a trial offends accepted notions of justice is not disproof that
general rather than idiosyncratic standards are applied. An important safeguard
against such merely individual judgment is an alert deference to the judgment
of the State court under review.
JUSTICE BLACK, dissenting.
This decision reasserts a constitutional theory spelled out
in Twining v. New Jersey [1908], that this Court is endowed by
the Constitution with boundless power under “natural law” periodically to
expand and contract constitutional standards to conform to the Court’s
conception of what at a particular time constitutes “civilized decency” and
“fundamental liberty and justice.” Invoking this Twining rule,
the Court concludes that although comment upon testimony in a federal court
would violate the Fifth Amendment, identical comment in a state court does not
violate today’s fashion in civilized decency and fundamentals and is therefore
not prohibited by the Federal Constitution as amended.
I would not reaffirm the Twining decision.
I think that decision and the “natural law” theory of the Constitution upon
which it relies degrade the constitutional safeguards of the Bill of Rights and
simultaneously appropriate for this Court a broad power which we are not
authorized by the Constitution to exercise. My reasons for believing that the
Twining decision should not be revitalized can best be understood by reference
to the constitutional, judicial, and general history that preceded and followed
the case. That reference must be abbreviated far more than is justified but for
the necessary limitations of opinion-writing.
My study of the historical events that culminated in the
Fourteenth Amendment, and the expressions of those who sponsored and favored,
as well as those who opposed its submission and passage, persuades me that one
of the chief objects that the provisions of the Amendment’s first section,
separately, and as a whole, were intended to accomplish was to make the Bill of
Rights, applicable to the states.
I am attaching to this dissent an appendix which contains a
résumé, by no means complete, of the Amendment’s history. In my judgment that
history conclusively demonstrates that the language of the first section of the
Fourteenth Amendment, taken as a whole, was thought by those responsible for
its submission to the people, and by those who opposed its submission,
sufficiently explicit to guarantee that thereafter no state could deprive its
citizens of the privileges and protections of the Bill of Rights.
I further contend that the “natural law” formula which the
Court uses to reach its conclusion in this case should be abandoned as an
incongruous excrescence on our Constitution. I believe that formula to be
itself a violation of our Constitution, in that it subtly conveys to courts, at
the expense of legislatures, ultimate power over public policies in fields
where no specific provision of the Constitution limits legislative power.
It is an illusory apprehension that literal application of
some or of all the provisions of the Bill of Rights to the States would
unwisely increase the sum total of the powers of this
Court to invalidate state legislation. The Federal Government has not been
harmfully burdened by the requirement that enforcement of federal laws
affecting civil liberty conform literally to the Bill of Rights. Who would
advocate its repeal? It must be conceded, of course, that the natural law-due
process formula, which the Court today reaffirms, has been interpreted to limit
substantially this Court’s power to prevent state violations of the individual
civil liberties guaranteed by the Bill of Rights. But this formula also has
been used in the past, and can be used in the future, to license this Court, in
considering regulatory legislation, to roam at large in the broad expanses of
policy and morals and to trespass, all too freely, on the legislative domain of
the states as well as the Federal Government.
JUSTICE MURPHY, with whom JUSTICE RUTLEDGE concurs,
dissenting.
While in substantial agreement with the views of MR. JUSTICE
BLACK, I have one reservation. I agree that the specific guarantees of the Bill
of Rights should be carried over intact into the first section of the
Fourteenth Amendment. But I am not prepared to say that the latter is entirely
and necessarily limited by the Bill of Rights. Occasions may arise where a
proceeding falls so far short of conforming to fundamental standards of
procedure as to warrant constitutional condemnation in terms of a lack of due
process despite the absence of a specific provision in the Bill of Rights.