Palko v. Connecticut

The due process argument Palko made really dates from two dissenting opinions written much earlier by Justice John Marshall Harlan I: Hurtado v. California (1884) and Twining v. State of New Jersey (1908). Although it was decidedly a minority view at the time, in both of these cases, Harlan advanced the theory that after ratification of the Fourteenth Amendment in 1868, any act that violated the Bill of Rights was unconstitutional both at the federal and the state levels. This interpretation of the Due Process Clause, which came to be known as the incorporation doctrine, was later vigorously championed by Justice Black in the 1940s, 1950s and 1960s. Eventually, all but a few of the guarantees of the Bill of Rights were incorporated into the Fourteenth Amendment.

At the time the Supreme Court heard Palko, however, the incorporation doctrine had been only partially developed. In his opinion for the Court, Justice Cardozo acknowledged that some aspects of the first eight amendments to the Constitution had been made to apply to the states. Nonetheless, he said, these developments did not mean that such application was automatic. Instead, he said, only certain rights lent themselves to incorporation:

[S]pecific pledges of particular amendments have been found to be implicit in the concept of ordered liberty . . . The line of division may seem to be wavering and broken [but] . . . There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence . . . [T]hey are of the very essence of a scheme of ordered liberty . . . "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Quoting Snyder v. Massachusetts (1934)]

Cardozo cited such rights as the First Amendment guarantees of free speech, free press, and free religion and the Sixth Amendment guarantee of the right to counsel as the types of fundamental protections that should obviously apply to states as well as the federal government. With regard to the case before them, however, a majority of the justices did not believe that any of Palko's fundamental rights had been violated. Instead, the Connecticut law at issue was intended to rectify substantial errors at trial. And it seemed to the justices that the law had been properly applied in Palko's case. His death sentence stood.

The Court would later overturn Palko with Benton v. Maryland (1969), an important, if belated, step in the so-called "due process revolution" which realized the theory behind the incorporation doctrine. In its early stages, the due process revolution found its most ardent spokesman in Justice Black. In the later stages of his career Black would grow more conservative, but from the late 1940s through the early 1960s, he championed the incorporation of a range of rights protecting individual liberties--including those of criminal defendants. His opponent in this debate was Justice Felix Frankfurter, who favored the "fundamental fairness" test for incorporation of rights into the Fourteenth Amendment. In the end, Black's more liberal approach was adopted, and the due process revolution saw its fullest flowering during the tenure of Chief Justice Earl Warren.