Bartkus v. Illinois - Double Jeopardy Is Wholly Uncivilized

In dissenting, Justice Black vehemently argued that the Bartkus decision should be overturned. Perhaps it did not make the entire Bill of Rights applicable to the states. But the Fourteenth Amendment did incorporate those principles of justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

Based on the historical record, Black declared, "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization." Rules against double jeopardy existed in Greek, Roman, and canon law as well as in English common law. Every state prohibits and most foreign nations forbid two trials for the same offense. And, Black continued, the Supreme Court also had barred two trials. The cases cited in Justice Frankfurter's opinion were, Black asserted, really irrelevant to the issue at hand.

In another dissenting opinion, Justice Brennan disagreed with the majority on substantive grounds. Brennan was convinced that the state trial was a sham. The federal officers had solicited the state indictment and prepared and guided the state prosecution. Federal officials participated in the state trial so completely that it was in actuality a second federal prosecution--a second federal try at Bartkus in the guise of a state prosecution.