Rochin v. California/Concurrence Black

by Hugo Black

Mr. Justice BLACK, concurring.

Adamson v. People of State of California, 332 U.S. 46, 68 123, 67 S.Ct. 1672, 1683, 1684-1711, 91 L.Ed. 1903, sets out reasons for my belief that state as well as federal courts and law enforcement officers must obey the Fifth Amendment's command that 'No person * * * shall be compelled in any criminal case to be a witness against himself'. I think a person is compelled to be a witness against himself not only when he is compelled to testify, but also when as here, incriminating evidence is forcibly taken from him by a contrivance of modern science. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. California convicted this petitioner by using against him evidence obtained in this manner, and I agree with Mr. Justice DOUGLAS that the case should be reversed on this ground.

In the view of a majority of the Court, however, the Fifth Amendment imposes no restraint of any kind on the states. They nevertheless hold that California's use of this evidence violated the Due Process Clause of the Fourteenth Amendment. Since they hold as I do in this case, I regret my inability to accept their interpretation without protest. But I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards stated by the majority.

What the majority hold is that the Due Process Clause empowers this Court to nullify any state law if its application 'shocks the conscience', offends 'a sense of justice' or runs counter to the 'decencies of civilized conduct.' The majority emphasize that these statements do not refer to their own consciences or to their senses of justice and decency. For we are told that 'we may not draw on our merely personal and private notions'; our judgment must be grounded on 'considerations deeply rooted in reason and in the compelling traditions of the legal profession.' We are further admonished to measure the validity of state practices, not by our reason, or by the traditions of the legal profession, but by 'the community's sense of fair play and decency'; by the 'traditions and conscience of our people'; or by 'those canons of decency and fairness which express the notions of justice of English-speaking peoples'. These canons are made necessary, it is said, because of 'interests of society pushing in opposite directions.'

If the Due Process Clause does vest this Court with such unlimited power to invalidate laws, I am still in doubt as to why we should consider only the notions of English-speaking peoples to determine what are immuntable and fundamental principles of justice. Moreover, one may well ask what avenues of investigation are open to discover 'canons' of conduct so universally favored that this Court should write them into the Constitution? All we are told is that the discovery must be made by an 'evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts.'

Some constitutional provisions are stated in absolute and unqualified language such, for illustration, as the First Amendment stating that no law shall be passed prohibiting the free exercise of religion or abridging the freedom of speech or press. Other constitutional provisions do require courts to choose between competing policies, such as the Fourth Amendment which, by its terms, necessitates a judicial decision as to what is an 'unreasonable' search or seizure. There is, however, no express constitutional language granting judicial power to invalidate every state law of every kind deemed 'unreasonable' or contrary to the Court's notion of civilized decencies; yet the constitutional philosophy used by the majority has, in the past, been used to deny a state the right to fix the price of gasoline, Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287; and even the right to prevent bakers from palming off smaller for larger loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813. These cases, and others, ^[1] show the extent to which the evanescent standards of the majority's philosophy have been used to nullity state legislative programs passed to suppress evil economic practices. What paralyzing role this same philosophy will play in the future economic affairs of this country is impossible to predict. Of even graver concern, however, is the use of the philosophy to nullify the Bill of Rights. I long ago concluded that the accordion-like qualities of this philosophy must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights. ^[2] Reflection and recent decisions ^[3] of this Court sanctioning abridgment of the freedom of speech and press have strengthened this conclusion.

Notes

1. See n. 12 of dissenting opinion, Adamson v. People of State of California, supra, 332 U.S. at page 83, 67 S.Ct. at page 1692.
2. E.g., Adamson v. People of State of California, supra, and cases cited in the dissent.
3. American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 328, 95 L.Ed. 267, 395; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.