[Cite as Twining v. New Jersey, 211 U.S. 78 (1908). NOTE: This decision concerns self-incrimination in a state court and whether the Fourteenth Amendment made the Fifth Amendment enforceable against State infringement. Citing Pressor concerning the right to arms, the Majority opinion referred to trial by jury, grand jury indictment, right to confront witnesses, and right to arms protections in the same individual rights context when it noted, "The right of trial by jury in civil cases, guaranteed by the Seventh Amendment ... and the right to bear arms, guaranteed by the Second Amendment ... [are] not ... guaranteed by the Fourteenth Amendment against abrigment by the States, ... the same decision was made in respect of ... the Fifth Amendment ... Sixth Amendment." (P. 98 this page) Concerning these rights the Court continued, "the Fourteenth Amendment did not forbid the States to abridge the personal rights enumerated in the first eight Amendments" "it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action." (P. 99) In his dissenting opinion Justice Harlan similarly referred to the bill of rights as protecting individual rights: "[founders protested new constitution] was defective, in that it furnished no express guaranty against the violation by the National Government of the personal rights that inhered in liberty." "[Founders were unanimous] as to necessity and wisdom of having a National Bill of Rights which would, beyond all question, secure against Federal encroachment all the rights, privileges and immunities which, everywhere and by everybody in America, were then recognized as fundamental in Anglo-American liberty." "the Amendments introduced no principle not already familiar to liberty-loving people." (P. 120-121) Unqualified reference to all the rights as individual rights is similar to the Court's comments eighty years later in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
[Twining v. New Jersey continued
Return to pages 78-97 (Majority opinion).
Currently at pages 98-99 (Majority opinion cont.).
Proceed to pages 100-113 (Majority opinion cont.).
Proceed to pages 114-127 (Harlan dissent).]
[paragraph continued from previous page] Most of these cases were indictments against individuals for conspiracies to deprive persons of rights secured by the Constitution of the United States, and met with a different fate in this court from the indictments in United States v. Cruikshank and Hodges v. United States, because the rights in the latter cases were rights of state and not of National citizenship. But assuming it to be true that the exemption from self-incrimination is not, as a fundamental right of National citizenship, included in the privileges and immunities of citizens of the United States, counsel insist that, as a right specifically granted or secured by the Federal Constitution, it is included in them. This view is based upon the contention which must now be examined, that the safeguards of personal rights which are enumerated in the first eight Articles of amendment to the Federal Constitution, sometimes called the Federal Bill of Rights, though they were by those Amendments originally secured only against National action, are among the privileges and immunities of citizens of the United States, which this clause of the Fourteenth Amendment protects against state action. This view has been, at different times, expressed by justices of this court (Mr. Justice Field in O'Neil v. Vermont, 144 U.S. 323, 361; Mr. Justice Harlan in the same case, 370, and in Maxwell v. Dow, supra, 606, 617), and was undoubtedly that entertained by some of those who framed the Amendment. It is, however, not profitable to examine the weighty arguments in its favor, for the question is no longer open in this court. The right of trial by jury in civil cases, guaranteed by the Seventh Amendment (Walker v. Sauvinet, 92 U.S. 90), and the right to bear arms, guaranteed by the Second Amendment (Presser v. Illinois, 116 U.S. 252), have been distinctly held not to be privileges and immunities of citizens of the United States guaranteed by the Fourteenth Amendment against abridgment by the States, and in effect the same decision was made in respect of the guaranty against prosecution, except by indictment of a grand jury, contained in the Fifth Amendment (Hurtado v. California, 110 U.S. 516), (p.99)and in respect of the right to be confronted with witnesses, contained in the Sixth Amendment. West v. Louisiana, 194 U.S. 258. In Maxwell v. Dow, supra, where the plaintiff in error had been convicted in a state court of a felony upon an information, and by a jury of eight persons, it was held that the indictment, made indispensable by the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the Fourteenth Amendment. The discussion in that case ought not to be repeated. All the arguments for the other view were considered and answered, the authorities were examined and analyzed, and the decision rested upon the ground that this clause of the Fourteenth Amendment did not forbid the States to abridge the personal rights enumerated in the first eight Amendments, because those rights were not within the meaning of the clause "privileges and immunities of citizens of the United States." If it be possible to render the principle which governed the decision more clear, it is done so by the dissent of Mr. Justice Harlan. We conclude, therefore, that the exemption from compulsory self-incrimination is not a privilege or immunity of National citizenship guaranteed by this clause of the Fourteenth Amendment against abridgment by the States.
The defendants, however, do not stop here. They appeal to another clause of the Fourteenth Amendment, and insist that the self-incrimination, which they allege the instruction to the jury compelled, was a denial of due process of law. This contention requires separate consideration, for it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226. If this is so, it is 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. Few [paragraph continues next page]
[Return to pages 78-97 (Majority opinion).
Currently at pages 98-99 (Majority opinion cont.).
Proceed to pages 100-113 (Majority opinion cont.).
Proceed to pages 114-127 (Harlan dissent).]