Maxwell v. Dow

In June of 1898, Maxwell had been charged with robbery in Utah. State law allowed the county's prosecuting attorney to bring charges against Maxwell without a grand jury first determining if there was enough evidence to try the case. In September, an eight-member jury found Maxwell guilty and he was sentenced to 18 years in prison.

The following year, Maxwell petitioned the Utah State Supreme Court, asserting his conviction was unlawful and violated his rights under the Fifth, Sixth, and Fourteenth amendments. The Fifth Amendment requires a grand jury to bring charges in federal cases; Maxwell argued the amendment should apply to state trials as well. Maxwell also disputed the legality of using a trial jury with only eight members, instead of the 12 recognized under English common law and used in U.S. federal courts. Finally, he claimed that the Utah state laws regarding the grand jury and number of jurors abridged his privileges and immunities and denied him due process, both illegal under the Fourteenth Amendment.

The Utah Supreme Court denied all of Maxwell's arguments. He remained in prison as he appealed his case to the U.S. Supreme Court, which heard arguments on 4 December 1899. Unfortunately, Maxwell did not fare any better at the federal level. The Supreme Court ruled 8-1 that the conviction was lawful and the Utah laws were valid.

In his opinion, Justice Peckham noted that in a previous case, Hurtado v. California (1884), the Court ruled that due process under the Fourteenth Amendment did not require a state to use a grand jury to bring an indictment in a murder case tried under state law. The Court now applied the same standard to Maxwell's circumstance.

Peckham went on to say that, in general, a citizen's privileges and immunities do not necessarily apply to the Bill of Rights. States have the right to use an eight-member trial jury instead of 12, or to pass other laws that might conflict with Congress's desires or the Constitution. Peckham trusted the states to usually do what was right. "There can be no just fear that the liberties of the citizens will not be respected by the states respectively," Peckham wrote. "It is a case of self-protection, and the people can be trusted to look out for and care for themselves."

Justice Harlan, however, had major disagreements with the majority decision. He asserted that privileges and immunities did include the rights spelled out in the Bill of Rights, an idea known as "total incorporation," and a state could not take them away. He believed Maxwell should have had a trial with 12 jurors, as should every citizen accused of a crime in a state court.

Harlan went on to attack how the Court interpreted due process under the Fourteenth Amendment. In previous cases, he said, the Court had ruled that due process required a state government to provide just compensation if it took a person's private property. "It would seem that the protection of private property is of more consequence than the protection of life and liberty of the citizen."