Bartkus v. Illinois

For the first time, the Court explicitly ruled on the validity of a state conviction after a defendant had been acquitted in a federal court. The question was whether the Fourteenth Amendment incorporated the Fifth Amendment's double jeopardy clause. Justice Frankfurter declared unequivocally that the Fourteenth Amendment did not apply the words of the Bill of Rights to the states. "The Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such."

Frankfurter cited the historical record as well as prior decisions by the Supreme Court and state courts. He began by examining the "original intention" of the Congress and states in adopting the Fourteenth Amendment. In ten of the 30 states ratifying the Fourteenth Amendment, the state constitution contained provisions contrary to those in the federal Constitution's Fifth, Sixth, and Seventh Amendments. These ten states clearly did not intend to incorporate the Bill of Rights in the Fourteenth Amendment. To do so, they would first have had to amend their own state constitutions.

Furthermore, Frankfurter continued, 12 states joined the United States after the Fourteenth Amendment was ratified. In all 12 state constitutions, judicial procedures differed from those in the Bill of Rights. By welcoming them into the Union, Congress attested that a state's powers were not limited by the first eight amendments.

For more than a century, Frankfurter continued, the Supreme Court had accepted the validity of consecutive state and federal prosecutions, and state supreme courts also had tolerated double prosecutions. These decisions, Frankfurter declared, had reaffirmed the statement of law in the nineteenth century decision Moore v. Illinois.

Every citizen of the United states is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.