April 3, 2009

In Defense of Freedom: Part VI

I’ve been remiss in my undertaking. A few months back I set out to look at our Constitution and the Original 10 Amendments, but I got sidetracked by the installation of a new president and the accompanying political maelstrom. Time to get back to it. The last I discussed was the 5th, which I didn’t fully cover, so I’d like to make another brief run at it.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The area not covered was the prohibition against compelling a person to witness against himself. We know this best as "pleading the 5th", and the case most representative of this provision is Adamson v. California. During trial summation in this murder case, the prosecutor made comments to the jury highlighting the defendant’s decision not to testify on his own behalf. This was in accordance with a California law. Adamson appealed the guilty verdict with a 5th amendment challenge, and the case ended up in front of the Supreme Court.

The question before the court would apply the 5th amendment to a state court under the provisions of the 14th amendment's due process clause. The majority, citing and Palko v. Connecticut and Twining v. New Jersey, ruled that it did not and upheld the conviction. The majority opinion, written by Justice Stanley Reed, the Court found that while Adamson’s rights may have been violated had the case been tried in federal court, the 5th Amendment did not extend to state courts.

The importance of the case is not in the majority opinion, but may be found in Justice Hugo Black’s dissent in which he argued for the absolute and complete application of the Bill of Rights to the states.

“If the choice must be between the selective process of [Palko] 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 14th Amendment- to extend to all of 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.”

Black’s view was defended during the 1950s by William Winslow Crosskey[1] and by Alfred Avins[2] in the 1960s, but it wasn’t until Michael Kent Curtis’ work in the 1980’s[3] that the historical research of Justice Hugo L. Black began to bear fruit and the states were held to full constitutional scrutiny.

I’ll probably dwell a little more on Curtis and he work if I make it to the 14th.

[1] Politics and the Constitution in the History of the United States 1083–1175, 1381 n.11 (Univ. Chicago Press,1953)

[2] Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited, 6 HARV. J. ON LEGIS. 1 (1968)

[3] No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Duke Univ. Press 1986)



Anonymous said...

Glad to see you pick this up again.