Hurtado v. California

The lone dissenter to the Court's majority ruling was Justice Harlan. In his view, if the right to a grand jury had not been a "fundamental" component of due process, it would not have been guaranteed by the Fifth Amendment. Certain rights, including the right to a grand jury, "were of a character so essential to the safety of the people" that they had been specifically written into "the early Amendments of the Constitution . . . " Harlan, as a minority of one, did not prevail. Instead, the majority decision meant that the Court spent much of the next few decades hammering out its notions of due process, by means of ruling on various cases.

In 1953, Earl Warren became the Supreme Court chief justice. Under his leadership, virtually every right guaranteed by both the Fifth and the Sixth Amendments was incorporated into the legal understanding of due process: the right to counsel, the right against self-incrimination, the right of the accused to confront his or her accuser, the right to a speedy trial, the right to trial by jury, and the right to protection against double jeopardy (being tried or punished twice for the same crime).

Many legal commentators saw the decisions of the Warren Court as a departure from the Court's previous cautious approach to establishing rights. However, some commentators have had the opposite reaction. They see the so-called activism of the Warren Court as returning to the traditional understanding of rights, the one that existed before Hurtado. In that view, Hurtado was the departure, the case in which, for the first time, the U.S. Supreme Court ignored the traditional English common law provisions spelled out in the Bill of Rights in favor of the possibilities of "progress and improvement."