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[[Malloy v. Hogan|378 U.S. 1]]
[[Benton v. Maryland|395 U.S. 784]]

MR. JUSTICE BLACK, dissenting.

The appellant was tried for murder in a California state court. He did not take the stand as a witness in his own behalf. The prosecuting attorney, under purported authority of a California statute, Cal.Penal Code, § 1323 (Hillyer-Lake, 1945), argued to the jury that an inference of guilt could be drawn because of appellant's failure to deny evidence offered against him. The appellant's contention in the state court and here has been that the statute denies him a right guaranteed by the Federal Constitution. The argument is that (1) permitting comment upon his failure to testify has the effect of compelling him to testify, so as to violate that provision of the Bill of Rights contained in the Fifth Amendment that "No person . . . shall be compelled in any criminal case to be a witness against himself", and (2) although this provision of the Fifth Amendment originally applied only as a restraint upon federal courts, Barron v. Baltimore, 7 Peters 243, the Fourteenth Amendment was intended to, and did, make the prohibition against compelled testimony applicable to trials in state courts. [p69]

The Court refuses to meet and decide the appellant's first contention. But while the Court's opinion, as I read it, strongly implies that the Fifth Amendment does not, of itself, bar comment upon failure to testify in federal courts, the Court nevertheless assumes that it does in order to reach the second constitutional question involved in appellant's case. I must consider the case on the same assumption that the Court does. For the discussion of the second contention turns out to be a decision which reaches far beyond the relatively narrow issues on which this case might have turned.

This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, 211 U.S. 78, that this Court is endowed by the Constitution with boundless power under "natural law" periodically to expand and contract constitutional standards to conform to the Court's conception of what, at a particular time, constitutes "civilized decency" and "fundamental liberty and justice." [1] Invoking this Twining rule, the Court concludes that, although comment upon testimony in a federal court would violate the Fifth Amendment, identical comment in a state court does not violate today's fashion in civilized decency and fundamentals, and is therefore not prohibited by the Federal Constitution, as amended.

The Twining case was the first, as it is the only, decision of this Court which has squarely held that states were free, notwithstanding the Fifth and Fourteenth Amendments, to extort evidence from one accused of crime. [2] I [p70] agree that, if Twining be reaffirmed, the result reached might appropriately follow. But I would not reaffirm the Twining decision. I think that decision and the "natural law" theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights, and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise. Furthermore, the Twining decision rested on previous cases and broad hypotheses which have been undercut by intervening decisions of this Court. See Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 191, 202. My reasons for believing that the Twining decision should not be revitalized can best be understood by reference to the constitutional, judicial, and general history that preceded and followed the case. That reference must be abbreviated far more than is justified but for the necessary limitations of opinion-writing.

The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments — Legislative, Executive, and Judicial. The Fifth, Sixth, and Eighth Amendments were pointedly aimed at confining exercise of power by courts and judges within precise boundaries, particularly in the procedure used for the trial of criminal cases. [3] Past history provided strong reasons [p71] for the apprehensions which brought these procedural amendments into being and attest the wisdom of their adoption. For the fears of arbitrary court action sprang largely from the past use of courts in the imposition of criminal punishments to suppress speech, press, and religion. Hence, the constitutional limitations of courts' powers were, in the view of the Founders, essential supplements to the First Amendment, which was itself designed to protect the widest scope for all people to believe and to express the most divergent political, religious, and other views.

But these limitations were not expressly imposed upon state court action. In 1833, Barron v. Baltimore, supra, was decided by this Court. It specifically held inapplicable to the states that provision of the Fifth Amendment which declares: "nor shall private property be taken for public use, without just compensation." In deciding the particular point raised, the Court there said that it could not hold that the first eight amendments applied to the states. This was the controlling constitutional rule when the Fourteenth Amendment was proposed in 1866. [4]

My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage persuades me that one of the chief objects that the provisions of the Amendment's first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the [p72] states. [5] With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.

In construing other constitutional provisions, this Court has almost uniformly followed the precept of Ex parte Bain, 121 U.S. 1, 12, that

It is never to be forgotten that, in the construction of the language of the Constitution . . . , as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

See also Everson v. Board of Education, 330 U.S. 1, 8, 28, 33; Thornhill v. Alabama, 310 U.S. 88, 95, 102; Knowlton v. Moore, 178 U.S. 41, 89, 106; Reynolds v. United States, 98 U.S. 145, 162; Barron v. Baltimore, supra, at 250-251; Cohens v. Virginia, 6 Wheat. 264, 416-420.

Investigation of the cases relied upon in Twining v. New Jersey to support the conclusion there reached that neither the Fifth Amendment's prohibition of compelled testimony, nor any of the Bill of Rights, applies to the States reveals an unexplained departure from this salutary [p73] practice. Neither the briefs nor opinions in any of these cases, except Maxwell v. Dow, 176 U.S. 581, make reference to the legislative and contemporary history for the purpose of demonstrating that those who conceived, shaped, and brought about the adoption of the Fourteenth Amendment intended it to nullify this Court's decision in Barron v. Baltimore, supra, and thereby to make the Bill of Rights applicable to the States. In Maxwell v. Dow, supra, the issue turned on whether the Bill of Rights guarantee of a jury trial was, by the Fourteenth Amendment, extended to trials in state courts. In that case, counsel for appellant did cite from the speech of Senator Howard, Appendix, infra, p. 104, which so emphatically stated the understanding of the framers of the Amendment — the Committee on Reconstruction for which he spoke — that the Bill of Rights was to be made applicable to the states by the Amendment's first section. The Court's opinion in Maxwell v. Dow, supra, 601, acknowledged that counsel had "cited from the speech of one of the Senators," but indicated that it was not advised what other speeches were made in the Senate or in the House. The Court considered, moreover, that

What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it.

Id. at 601-602.

In the Twining case itself, the Court was cited to a then recent book, Guthrie, Fourteenth Amendment to the Constitution (1898). A few pages of that work recited some of the legislative background of the Amendment, emphasizing the speech of Senator Howard. But Guthrie did not emphasize the speeches of Congressman Bingham, nor the part he played in the framing and adoption of the first section of the Fourteenth Amendment. Yet Congressman [p74] Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment. In the Twining opinion, the Court explicitly declined to give weight to the historical demonstration that the first section of the Amendment was intended to apply to the states the several protections of the Bill of Rights. It held that that question was "no longer open," because of previous decisions of this Court which, however, had not appraised the historical evidence on that subject. Id. at 98. The Court admitted that its action had resulted in giving "much less effect to the Fourteenth Amendment than some of the public men active in framing it" had intended it to have. Id. at 96. With particular reference to the guarantee against compelled testimony, the Court stated that

Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of National citizenship, but, as has been shown, the decisions of this court have foreclosed that view.

Id. at 113. Thus, the Court declined, and again today declines, to appraise the relevant historical evidence of the intended scope of the first section of the Amendment. Instead, it relied upon previous cases, none of which had analyzed the evidence showing that one purpose of those who framed, advocated, and adopted the Amendment had been to make the Bill of Rights applicable to the States. None of the cases relied upon by the Court today made such an analysis.

For this reason, I am attaching to this dissent an appendix which contains a resume, by no means complete, of the Amendment's history. In my judgment, that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that, thereafter, no state [p75] could deprive its citizens of the privileges and protections of the Bill of Rights. Whether this Court ever will, or whether it now should, in the light of past decisions, give full effect to what the Amendment was intended to accomplish is not necessarily essential to a decision here. However that may be, our prior decisions, including Twining, do not prevent our carrying out that purpose, at least to the extent of making applicable to the states, not a mere part, as the Court has, but the full protection of the Fifth Amendment's provision against compelling evidence from an accused to convict him of crime. And I further contend that the "natural law" formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power. And my belief seems to be in accord with the views expressed by this Court, at least for the first two decades after the Fourteenth Amendment was adopted.

In 1872, four years after the Amendment was adopted, the Slaughter-House cases came to this Court. 16 Wall. 36. The Court was not presented in that case with the evidence which showed that the special sponsors of the Amendment in the House and Senate had expressly explained one of its principal purposes to be to change the Constitution as construed in Barron v. Baltimore, supra, and make the Bill of Rights applicable to the states. [6] Nor [p76] was there reason to do so. For the state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." [7] [p77] The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation. On this basis, it was contended that "bulwarks that have been erected around the investments of capital are impregnable against State legislation." These natural law arguments, so suggestive of the premises on which the present due process formula rests, were flatly rejected by a majority of the Court in the Slaughter-House cases. What the Court did hold was that the privileges and immunities clause of the Fourteenth Amendment only protected from state invasion such rights as a person has because he is a citizen of the United States. The Court enumerated some, but refused to enumerate all, of these national rights. The majority of the Court emphatically declined the invitation of counsel to hold that the Fourteenth Amendment subjected all state regulatory legislation to continuous censorship by this Court in order for it to determine whether it collided with this Court's opinion of "natural" right and justice. In effect, the Slaughter-House cases rejected the very [p78] natural justice formula the Court today embraces. The Court did not meet the question of whether the safeguards of the Bill of Rights were protected against state invasion by the Fourteenth Amendment. And it specifically did not say, as the Court now does, that particular provisions of the Bill of Rights could be breached by states in part, but not breached in other respects, according to this Court's notions of "civilized standards," "canons of decency," and "fundamental justice."

Later, but prior to the Twining case, this Court decided that the following were not "privileges or immunities" of national citizenship so as to make them immune against state invasion: the Eighth Amendment's prohibition against cruel and unusual punishment, In re Kemmler, 136 U.S. 436; the Seventh Amendment's guarantee of a jury trial in civil cases, Walker v. Sauvinet, 92 U.S. 90; the Second Amendment's "right of the people to keep and bear Arms . . . ," Presser v. Illinois, 116 U.S. 252; the Fifth and Sixth Amendments' requirements for indictment in capital or other infamous crimes, and for trial by jury in criminal prosecutions, Maxwell v. Dow, 176 U.S. 581. While it can be argued that these cases implied that no one of the provisions of the Bill of Rights was made applicable to the states as attributes of national citizenship, no one of them expressly so decided. In fact, the Court in Maxwell v. Dow, supra, at 597-598, concluded no more than that

the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government.

Cf. Palko v. Connecticut, 302 U.S. 319, 329.

After the Slaughter-House decision, the Court also said that states could, despite the "due process" clause of the Fourteenth Amendment, take private property without just compensation, Davidson v. New Orleans, 96 U.S. [p79] 97, 105; Pumpelly v. Green Bay Co., 13 Wall. 166, 176-177; abridge the freedom of assembly guaranteed by the First Amendment, United States v. Cruikshank, 92 U.S. 542; see also Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543; Patterson v. Colorado, 205 U.S. 454; cf. Gitlow v. New York, 268 U.S. 652, 666 (freedom of speech); prosecute for crime by information, rather than indictment, Hurtado v. People of California, 110 U.S. 516; regulate the price for storage of grain in warehouses and elevators, Munn v. Illinois, 94 U.S. 113. But this Court also held in a number of cases that colored people must, because of the Fourteenth Amendment, be accorded equal protection of the laws. See, e.g., Strauder v. West Virginia, 100 U.S. 303; cf. Virginia v. Rives, 100 U.S. 313; see also Yick Wo v. Hopkins, 118 U.S. 356.

Thus, up to and for some years after 1873, when Munn v. Illinois, supra, was decided, this Court steadfastly declined to invalidate states' legislative regulation of property rights or business practices under the Fourteenth Amendment unless there were racial discrimination involved in the state law challenged. The first significant breach in this policy came in 1889, in Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418. [8] A state's railroad rate regulatory statute was there stricken as violative of the due process clause of the Fourteenth Amendment. This was accomplished by reference to a due process formula which did not necessarily operate so as to protect the Bill of Rights' personal liberty safeguards, but which gave a new and hitherto undiscovered scope for the Court's use of the due process clause to protect property rights under natural law concepts. And in 1896, in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, [p80] this Court, in effect, overruled Davidson v. New Orleans, supra, by holding, under the new due process-natural law formula, that the Fourteenth Amendment forbade a state from taking private property for public use without payment of just compensation. [9]

Following the pattern of the new doctrine formalized in the foregoing decisions, the Court, in 1896, applied the due process clause to strike down a state statute which had forbidden certain types of contracts. Allgeyer v. Louisiana, 165 U.S. 578. Cf. Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 318-319. In doing so, it substantially adopted the rejected argument of counsel in the Slaughter-House cases that the Fourteenth Amendment guarantees the liberty of all persons under "natural law" to engage in their chosen business or vocation. In the Allgeyer opinion, id. at 589, the Court quoted with approval the concurring opinion of Mr. Justice Bradley in a second Slaughter-House case, Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 762, 764, 765, which closely followed [p81] one phase of the argument of his dissent in the original Slaughter-House cases — not that phase which argued that the Bill of Rights was applicable to the States. And in 1905, three years before the Twining case, Lochner v. New York, 198 U.S. 45, followed the argument used in Allgeyer to hold that the due process clause was violated by a state statute which limited the employment of bakery workers to sixty hours per week and ten hours per day.

The foregoing constitutional doctrine, judicially created and adopted by expanding the previously accepted meaning of "due process," marked a complete departure from the Slaughter-House philosophy of judicial tolerance of state regulation of business activities. Conversely, the new formula contracted the effectiveness of the Fourteenth Amendment as a protection from state infringement of individual liberties enumerated in the Bill of Rights. Thus, the Court's second-thought interpretation of the Amendment was an about-face from the Slaughter-House interpretation and represented a failure to carry out the avowed purpose of the Amendment's sponsors. [10] This reversal is dramatized by the fact that the Hurtado case, which had rejected the due process clause as an instrument [p82] for preserving Bill of Rights liberties and privileges, was cited as authority for expanding the scope of that clause so as to permit this Court to invalidate all state regulatory legislation it believed to be contrary to "fundamental" principles.

The Twining decision, rejecting the compelled testimony clause of the Fifth Amendment, and indeed rejecting all the Bill of Rights, is the end product of one phase of this philosophy. At the same time, that decision consolidated the power of the Court assumed in past cases by laying broader foundations for the Court to invalidate state and even federal regulatory legislation. For the Twining decision, giving separate consideration to "due process" and "privileges or immunities," went all the way to say that the "privileges or immunities" clause of the Fourteenth Amendment "did not forbid the States to abridge the personal rights enumerated in the first eight Amendments. . . ." Twining v. New Jersey, supra, 99. And in order to be certain, so far as possible, to leave this Court wholly free to reject all the Bill of Rights as specific restraints upon state action, the decision declared that, even if this Court should decide that the due process clause forbids the states to infringe personal liberties guaranteed by the Bill of Rights, it would do so, not

because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.


At the same time that the Twining decision held that the states need not conform to the specific provisions of the Bill of Rights, it consolidated the power that the Court had assumed under the due process clause by laying even broader foundations for the Court to invalidate state and even federal regulatory legislation. For, under the Twining formula, which includes nonregard for the first eight amendments, what are "fundamental rights" and in accord with "canons of decency," as the Court [p83] said in Twining, and today reaffirms, is to be independently "ascertained from time to time by judicial action. . . ." Id. at 101; "what is due process of law depends on circumstances." Moyer v. Peabody, 212 U.S. 78, 84. Thus, the power of legislatures became what this Court would declare it to be at a particular time independently of the specific guarantees of the Bill of Rights such as the right to freedom of speech, religion and assembly, the right to just compensation for property taken for a public purpose, the right to jury trial or the right to be secure against unreasonable searches and seizures. Neither the contraction of the Bill of Rights safeguards [11] nor the invalidation of regulatory laws [12] by this Court's appraisal of "circumstances" would readily be classified as the most satisfactory contribution of this Court to the nation. In 1912, four years after the Twining case was decided, a book written by Mr. Charles Wallace Collins gave the history of this Court's interpretation and application of the Fourteenth Amendment up to that time. It is not necessary for one fully to agree with all he said in [p84] order to appreciate the sentiment of the following comment concerning the disappointments caused by this Court's interpretation of the Amendment.

. . . It was aimed at restraining and checking the powers of wealth and privilege. It was to be a charter of liberty for human rights against property rights. The transformation has been rapid and complete. It operates today to protect the rights of property to the detriment of the rights of man. It has become the Magna Charta of accumulated and organized capital.

Collins, The Fourteenth Amendment and the States, (1912) 137-138. That this feeling was shared, at least in part, by members of this Court is revealed by the vigorous dissents that have been written in almost every case where the Twining and Hurtado doctrines have been applied to invalidate state regulatory laws. [13]

Later decisions of this Court have completely undermined that phase of the Twining doctrine which broadly precluded reliance on the Bill of Rights to determine what is and what is not a "fundamental" right. Later cases have also made the Hurtado case an inadequate support for this phase of the Twining formula. For, despite Hurtado and Twining, this Court has now held that the Fourteenth Amendment protects from state invasion the following "fundamental" rights safeguarded by the Bill of Rights: right to counsel in criminal cases, Powell v. Alabama, 287 U.S. 45, 67, limiting the Hurtado case; see also Betts v. Brady, 316 U.S. 455, and De Meerleer v. Michigan, 329 U.S. 663; freedom of assembly, De Jonge v. Oregon, 299 U.S. 353, 364; at the very least, certain types of cruel and unusual punishment and former jeopardy, State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459; the right of an accused in a criminal case to be informed [p85] of the charge against him, see Snyder v. Massachusetts, 291 U.S. 97, 105; the right to receive just compensation on account of taking private property for public use, Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226. And the Court has now through the Fourteenth Amendment literally and emphatically applied the First Amendment to the States in its very terms. Everson v. Board of Education, 330 U.S. 1; Board of Education v. Barnette, 319 U.S. 624, 639; Bridges v. California, 314 U.S. 252, 268.

In Palko v. Connecticut, supra, a case which involved former jeopardy only, this Court reexamined the path it had traveled in interpreting the Fourteenth Amendment since the Twining opinion was written. In Twining, the Court had declared that none of the rights enumerated in the first eight amendments were protected against state invasion because they were incorporated in the Bill of Rights. But the Court in Palko, supra, at 323, answered a contention that all eight applied with the more guarded statement, similar to that the Court had used in Maxwell v. Dow, supra, at 597, that "there is no such general rule." Implicit in this statement, and in the cases decided in the interim between Twining and Palko and since, is the understanding that some of the eight amendments do apply by their very terms. Thus, the Court said in the Palko case that the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the

freedom of speech which the First Amendment safeguards against encroachment by the Congress . . . or the like freedom of the press . . . or the free exercise of religion . . . or the right of peaceable assembly . . . or the right of one accused of crime to the benefit of counsel. . . . In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered [p86] liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

Id. at 324-325. The Court went on to describe the Amendments made applicable to the States as

the privileges and immunities that have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption.

Id. at 326. In the Twining case, fundamental liberties were things apart from the Bill of Rights. Now it appears that at least some of the provisions of the Bill of Rights, in their very terms, satisfy the Court as sound and meaningful expressions of fundamental liberty. If the Fifth Amendment's protection against self-incrimination be such an expression of fundamental liberty, I ask, and have not found a satisfactory answer, why the Court today should consider that it should be "absorbed" in part, but not in full? Cf. Warren, The New "Liberty" under the Fourteenth Amendment, 39 Harv.L.Rev. 431, 458-461 (1926). Nothing in the Palko opinion requires that, when the Court decides that a Bill of Rights' provision is to be applied to the States, it is to be applied piecemeal. Nothing in the Palko opinion recommends that the Court apply part of an amendment's established meaning, and discard that part which does not suit the current style of fundamentals.

The Court's opinion in Twining, and the dissent in that case, made it clear that the Court intended to leave the states wholly free to compel confessions so far as the Federal Constitution is concerned. Twining v. New Jersey, supra, see particularly pp. 111-114, 125-126. Yet, in a series of cases since Twining, this Court has held that the Fourteenth Amendment does bar all American courts, state or federal, from convicting people of crime on coerced confessions. Chambers v. Florida, 309 U.S. 227; Ashcraft v. Tennessee, 322 U.S. 143, 154-155, and cases cited. Federal courts cannot do so, because of the Fifth Amendment. [p87] Bram v. United States, 168 U.S. 532, 542, 562-563. And state courts cannot do so, because the principles of the Fifth Amendment are made applicable to the States through the Fourteenth by one formula or another. And, taking note of these cases, the Court is careful to point out in its decision today that coerced confessions violate the Federal Constitution if secured "by fear of hurt, torture or exhaustion." Nor can a state, according to today's decision, constitutionally compel an accused to testify against himself by "any other type of coercion that falls within the scope of due process." Thus, the Court itself destroys, or at least drastically curtails, the very Twining decision it purports to reaffirm. It repudiates the foundation of that opinion, which presented much argument to show that compelling a man to testify against himself does not "violate" a "fundamental" right or privilege.

It seems rather plain to me why the Court today does not attempt to justify all of the broad Twining discussion. That opinion carries its own refutation on what may be called the factual issue the Court resolved. The opinion itself shows, without resort to the powerful argument in the dissent of Mr. Justice Harlan, that, outside of Star Chamber practices and influences, the "English-speaking" peoples have for centuries abhorred and feared the practice of compelling people to convict themselves of crime. I shall not attempt to narrate the reasons. They are well known, and those interested can read them in both the majority and dissenting opinions in the Twining case, in Boyd v. United States, 116 U.S. 616, and in the cases cited in notes 8, 9, 10, and 11 of Ashcraft v. Tennessee, supra. Nor does the history of the practice of compelling testimony in this country, relied on in the Twining opinion, support the degraded rank which that opinion gave the Fifth Amendment's privilege against compulsory self-incrimination. I think the history there recited by the Court belies its conclusion. [p88]

The Court in Twining evidently was forced to resort for its degradation of the privilege to the fact that Governor Winthrop, in trying Mrs. Anne Hutchinson in 1627, was evidently "not aware of any privilege against self-incrimination or conscious of any duty to respect it." Id. at 103-104. Of course, not. [14] Mrs. Hutchinson was tried, if trial it can be called, for holding unorthodox religious views. [15] People with a consuming belief that their religious convictions must be forced on others rarely ever believe that the unorthodox have any rights which should or can be rightfully respected. As a result of her trial and compelled admissions, Mrs. Hutchinson was found guilty of unorthodoxy and banished from Massachusetts. The lamentable experience of Mrs. Hutchinson and others contributed to the overwhelming sentiment that demanded adoption [p89] of a Constitutional Bill of Rights. The founders of this Government wanted no more such "trials" and punishments as Mrs. Hutchinson had to undergo. They wanted to erect barriers that would bar legislators from passing laws that encroached on the domain of belief, and that would, among other things, strip courts and all public officers of a power to compel people to testify against themselves. See Pittman, supra, at 789.

I cannot consider the Bill of Rights to be an outworn 18th Century "strait jacket," as the Twining opinion did. Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment, the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights. If the choice must be between the selective process of the Palko decision, applying some of the Bill of Rights to the States, or the Twining rule, applying none of them, I would choose the Palko selective process. But, rather than accept either of these choices, I would follow what I believe was the original purpose of the Fourteenth Amendment — to extend to all the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and, if so, to what degree, is to frustrate the great design of a written Constitution. [p90]

Conceding the possibility that this Court is now wise enough to improve on the Bill of Rights by substituting natural law concepts for the Bill of Rights, I think the possibility is entirely too speculative to agree to take that course. I would therefore hold in this case that the full protection of the Fifth Amendment's proscription against compelled testimony must be afforded by California. This I would do because of reliance upon the original purpose of the Fourteenth Amendment.

It is an illusory apprehension that literal application of some or all of the provisions of the Bill of Rights to the States would unwisely increase the sum total of the powers of this Court to invalidate state legislation. The Federal Government has not been harmfully burdened by the requirement that enforcement of federal laws affecting civil liberty conform literally to the Bill of Rights. Who would advocate its repeal? It must be conceded, of course, that the natural law-due process formula, which the Court today reaffirms, has been interpreted to limit substantially this Court's power to prevent state violations of the individual civil liberties guaranteed by the Bill of Rights. [16] But this formula also has been used in the past, and can be used in the future, to license this Court, in considering regulatory legislation, to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.

Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly established, for better or worse, that courts can strike down legislative enactments which violate the Constitution. This process, of course, involves interpretation, and since words can have many meanings, interpretation obviously may result in contraction or extension of the original purpose of a constitutional [p91] provision, thereby affecting policy. But to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; [17] to invalidate statutes because of application of "natural law," deemed to be above and undefined by the Constitution, is another. [18]

In the one instance, courts proceeding within [p92] clearly marked constitutional boundaries seek to execute policies written into the Constitution; in the other, they roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people.

Federal Power Commission v. Pipeline Co., 315 U.S. 575, 599, 601, n. 4.

MR. JUSTICE DOUGLAS joins in this opinion.


^ . The cases on which the Court relies seem to adopt these standards. Malinski v. New York, 324 U.S. 401, concurring opinion, 412-417; Buchalter v. New York, 319 U.S. 427, 429; Hebert v. Louisiana, 272 U.S. 312, 316.

^ . "The question in the case at bar has been twice before us, and been left undecided, as the cases were disposed of on other grounds." Twining v. New Jersey, supra, 92. In Palko v. Connecticut, 302 U.S. 319, relied on by the Court, the issue was double jeopardy, and not enforced self-incrimination.

^ . The Fifth Amendment requires indictment by a Grand Jury in many criminal trials, prohibits double jeopardy, self-incrimination, deprivation of life, liberty or property without due process of law or the taking of property for public use without just compensation.

The Sixth Amendment guarantees to one accused of crime a speedy, public trial before an impartial jury of the district where the crime was allegedly committed; it requires that the accused be informed of the nature of the charge against him, confronted with the witnesses against him, have compulsory process to obtain witnesses in his favor, and assistance of counsel.

The Eighth Amendment prohibits excessive bail, fines and cruel and unusual punishments.

^ . See Appendix, infra, pp. 97-98.

^ . Another prime purpose was to make colored people citizens entitled to full equal rights as citizens, despite what this Court decided in the Dred Scott case. Scott v. Sandford, 19 How. 393.

A comprehensive analysis of the historical origins of the Fourteenth Amendment, Flack, The Adoption of the Fourteenth Amendment (1908) 94, concludes that

Congress, the House and the Senate, had the following objects and motives in view for submitting the first section of the Fourteenth Amendment to the States for ratification:
1. To make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.
2. To give validity to the Civil Rights Bill.
3. To declare who were citizens of the United States.

^ . It is noteworthy that, before the Twining decision, Justices Bradley, Field, Swayne, Harlan, and apparently Brewer, although they had not been presented with and did not rely upon a documented history of the Fourteenth Amendment such as is set out in the Appendix, infra nevertheless dissented from the view that the Fourteenth Amendment did not make provisions of the Bill of Rights applicable to the states. In the attached Appendix (at pp. 120-123), I have referred to some cases evidencing their views, and set out some expressions of it.

A contemporary comment illustrates that the Slaughter-House interpretation of the Fourteenth Amendment was made without full regard for the congressional purpose or popular understanding.

It must be admitted that the construction put upon the language of the first section of this amendment by the majority of the court is not its primary and most obvious signification. Ninety-nine out of every hundred educated men, upon reading this section over, would at first say that it forbade a state to make or enforce a law which abridged any privilege or immunity whatever of one who was a citizen of the United States, and it is only by an effort of ingenuity that any other sense can be discovered that it can be forced to bear. It is a little remarkable that, so far as the reports disclose, no one of the distinguished counsel who argued this great case (the Slaughter-House Cases), nor any one of the judges who sat in it, appears to have thought it worthwhile to consult the proceedings of the Congress which proposed this amendment to ascertain what it was that they were seeking to accomplish. Nothing is more common than this. There is hardly a question raised as to the true meaning of a provision of the old, original Constitution that resort is not had to Elliott's Debates to ascertain what the framers of the instrument declared at the time that they intended to accomplish. . . .

Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 So.L.Rev. (N.S.) 558, 563 (1879).

For a collection of other comments on the Slaughter-House cases, see 2 Warren, The Supreme Court in United States History (1937) c. 32.

^ . The case was not decided until over two years after it was submitted. In a short brief filed some two years after the first briefs, one of the counsel attacking the constitutionality of the state statute referred to and cited part of the history of the Fourteenth Amendment. The historical references made were directed only to an effort to show that a purpose of the Fourteenth Amendment was to protect freedom of contract against monopoly, since monopolies interfered with the freedom of contract and the right to engage in business. Nonetheless some, of these references would have supported the theory, had it been in question there, that a purpose of the Fourteenth Amendment was to make the Bill of Rights applicable to the states. For counsel quoted a statement by Congressman Bingham that

. . . it is . . . clear by every construction of the Constitution, its continued construction, legislative, executive and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States. The House knows, the country knows . . . , that the legislative, executive and judicial officers of eleven States within this Union, within the last five years, have utterly disregarded the behest.

But since there was no contention that the Bill of Rights Amendment prohibited monopoly, this statement, in the context in which it was quoted, is hardly an indication that the Court was presented with documented argument on the question of whether the Fourteenth Amendment made the Bill of Rights applicable to the States.

^ . See San Mateo County v. Southern P. R. Co., 116 U.S. 138; Santa Clara County v. Southern P. R. Co., 118 U.S. 394, 396; Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 Yale L.J. 371, 48 Yale L.J. 171.

^ . This case was decided after Hurtado but before Twining. It apparently was the first decision of this Court which brought in a Bill of Rights provision under the due process clause. In Davidson v. New Orleans, 96 U.S. 97, 105, the Court had refused to make such a holding, saying that

it must be remembered that, when the Fourteenth Amendment was adopted, the provision on that subject [just compensation], in immediate juxtaposition in the fifth amendment with the one we are now construing [due process], was left out, and this [due process] was taken.

Not only was the just compensation clause left out, but it was deliberately left out. A Committee on Reconstruction framed the Fourteenth Amendment, and its Journal shows that, on April 21, 1866, the Committee, by a 7 to 5 vote, rejected a proposal to incorporate the just compensation clause in the Fourteenth Amendment. Journal of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen.Doc. No. 711, 63d Cong., 3d Sess. (1915) 29. As shown by the history of the Amendment's passage, however, the Framers thought that in the language they had included this protection along with all the other protections of the Bill of Rights. See Appendix, infra.

^ . One writer observed,

That the Supreme Court has, on the one hand, refused to give this Amendment its evident meaning and purpose — thus completely defeating the intention of the Congress that framed it and of the people that adopted it. But, on the other hand, the Court has put into it a meaning which had never been intended either by its framers or adopters — thus, in effect, adopting a new Amendment and augmenting its own power by constituting itself that "perpetual censor upon all legislation of the state," which Mr. Justice Miller was afraid the Court would become if the Fourteenth Amendment were interpreted according to its true meaning and given the full effect intended by the people when they adopted it.

2 Boudin, Government by Judiciary (1932) 117. See also Haines, The Revival of Natural Law Concepts (1930) 143-165; Fairman, Mr. Justice Miller and the Supreme Court (1939) c. VIII.

^ . See cases collected pp. 78-79 supra. Other constitutional rights left unprotected from state violation are, for example, right to counsel, Betts v. Brady, 316 U.S. 455; privilege against self-incrimination, Feldman v. United States, 322 U.S. 487, 490.

^ . Examples of regulatory legislation invalidated are: state ten-hour law for bakery employees, Lochner v. New York, 198 U.S. 45; cf. Muller v. Oregon,208 U.S. 412; District of Columbia minimum wage for women, Adkins v. Children's Hospital, 261 U.S. 525; Morehead v. New York, 298 U.S. 587; but cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379; state law making it illegal to discharge employee for membership in a union, Coppage v. Kansas, 236 U.S. 1; cf. Adair v. United States, 208 U.S. 161; state law fixing price of gasoline, Williams v. Standard Oil Co., 278 U.S. 235; state taxation of bonds, Baldwin v. Missouri, 281 U.S. 586; state law limiting amusement ticket brokerage, Ribnik v. McBride, 277 U.S. 350; law fixing size of loaves of bread to prevent fraud on public, Jay Burns Baking Co. v. Bryan, 264 U.S. 504; cf. Schmidinger v. Chicago, 226 U.S. 578.

^ . See particularly dissents in cases cited notes 11 and 12, supra.

^ . Actually, it appears that the practice of the Court of Star Chamber of compelling an accused to testify under oath in Lilburn's trial, 3 Howell's State Trials 1315; 4 id. 1269, 1280, 1292, 1342, had helped bring to a head the popular opposition which brought about the demise of that engine of tyranny. 16 Car. I, cc. 10, 11. See 8 Wigmore, Evidence (1940) pp. 292, 298; Pittman, The Colonial and Constitutional History of the Privilege Against Self-incrimination, 21 Va.L.Rev. 763, 774 (1935). Moreover, it has been pointed out that seven American state constitutions guaranteed a privilege against self-incrimination prior to 1789. Pittman, supra, 765; Md.Const. (1776), 1 Poore Constitutions (1878) 818; Mass.Const. (1780), id. at 958; N.C.Const. (1776), 2 id. at 1409; N.H.Const. (1784), id. at 1282; Pa.Const. (1776), id. at 1542; Vt.Const. (1777), id. at 1860; Va. Bill of Rights (1776), id. at 1909.

By contrast, it has been pointed out that freedom of speech was not protected by colonial or state constitutions prior to 1789 except for the right to speak freely in sessions of the legislatures. See Warren, The New "Liberty" under the Fourteenth Amendment, 39 Harv.L.Rev. 431, 461 (1926).

^ . For accounts of the proceedings against Mrs. Hutchinson, see 1 Hart, American History Told by Contemporaries, 382 ff. (1897); Beard, The Rise of American Civilization (1930) 57; 1 Andrews, The Colonial Period of American History, 485 (1934).

^ . See, e.g., Betts v. Brady, 316 U.S. 455; Feldman v. United States, 322 U.S. 487.

^ . See Chambers v. Florida, 309 U.S. 227; Polk Co. v. Glover, 305 U.S. 5, 12-19; McCart v. Indianapolis Water Co., 302 U.S. 419, 423, 428; Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287, 299, 301; Betts v. Brady, 316 U.S. 455, 474; International Shoe Co. v. Washington, 326 U.S. 310, 322, 324-326; Feldman v. United States, 322 U.S. 487, 494, 495; Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 619, 620; United Gas Co. v. Texas, 303 U.S. 123, 146, 153; Gibbs v. Buck, 307 U.S. 66, 79.

^ . An early and prescient expose of the inconsistency of the natural law formula with our constitutional form of government appears in the concurring opinion of Mr. Justice Iredell in Calder v. Bull, 3 Dall. 386, 398, 399:

If any act of Congress, or of the Legislature of a state, violates . . . constitutional provisions, it is unquestionably void, though I admit that, as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the Court cannot pronounce it to be void merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the Court could properly say in such an event would be that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.