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[Cite as Adamson v. California, 332 U.S. 46, 78, 99, 100, 105, 109 n.3, 119, 124 (1947). NOTE: This decision concerns compelled testimony and whether the protections of the Fifth Amendment was made enforceable by the Fourteenth Amendment against state infringements. Dissenting from the Court's decision that it was not, Justice Black argued that all the bill of rights were made enforceable by the Fourteenth Amendment. Listing Supreme Court decisions withholding amendments Five, Six, Seven, and Eight from enforceability against states, Justice Black listed Presser (116 U.S. 252) and quoted the Second Amendment's clause "'right of the people to keep and bear arms...,'"(P. 78) In an Appendix, Justice Black quoted at length from the debates surrounding the Fourteenth Amendment and other acts of that era. An emphasis on arms or the right to arms appears in this Appendix five times (P. 99, 100, 105, 109 n.3, 119). Justice Murphy's dissent also advocated "that the specific guarantees of the Bill of Rights should be carried over intact into the first Section of the Fourteenth Amendment." (P. 124)]

[Adamson v. California continued
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[paragraph continued from previous page] Pumpelly v. Green Bay & Mississippi Canal 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.[79.8] 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, (p.80)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.[80.9]

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' Unions Co. v. Crescent City Co., 111 U.S. 746, 762, 764, 765, which closely followed (p.81)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.[81.10] This reversal is dramatized by the fact that the Hurtado case, which had rejected the due process clause as an instrument (p.82)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 actions, 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." Ibid.

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 non-regard for the first eight amendments, what are "fundamental rights" and in accord with "canons of decency," as the Court (p.83)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[83.11] nor the invalidation of regulatory laws[83.12] 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 (p.84)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) 137-8.

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.[84.13]

Later decisions of this Court have completely undermined the 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 (p.85)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; West Virginia State 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 re-examined 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 (p.86)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 (1925). 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. (p.87)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.(p.88)

The Court in Twining evidently was forced to resort for its degradation of the privilege to the fact that Governor Winthrop in trying Mrs. Ann Hutchison in 1637 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.[88.14] Mrs. Hutchison was tried, if trial it can be called, for holding unorthodox religious views.[88.15] 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. Hutchison was found guilty of unorthodoxy and banished from Massachusetts. The lamentable experience of Mrs. Hutchison and others, contributed to the overwhelming sentiment that demanded adoption (p.89)of a Constitutional Bill of Rights. The founders of this Government wanted no more such "trials" and punishments as Mrs. Hutchison 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.(p.90)

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 comform 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.[90.16] 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(p.91)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;[91.17] to invalidate statutes because of application of "natural law" deemed to be above and undefined by the Constitution is another.[91.18] "In the one instance, courts proceeding within [paragraph continues next page]

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[79.8] 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.

[80.9] 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.

[81.10] 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 the people who 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 power by constituting itself that 'perpetual censor upon all legislation of the state,' which 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 (193) c. VIII.

[83.11] See cases collected p. 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.

[83.12] Examples of regulatory legislation invalidated are: state ten-hour law for baking 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.

[84.13] See particularly dissents in cases cited notes 11 and 12, supra.

[88.14] 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 Howard 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) 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).

[88.15] For accounts of the proceedings against Mrs. Hutchison, 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).

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

[91.17] 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 Commission v. Hope Nat'l. Gas Co., 320 U.S. 591, 619, 620; United Gas Public Service Co. v. Texas, 303 U.S. 123, 146, 153; Gibbs v. Buck, 307 U.S. 66, 79.

[91.18] 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 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 thier 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."

See also Haines, The Law of Nature in State and Federal Decisions, 25 Yale L.J. 617 (1916); Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations on Legislatures, 2 Tex. L. Rev. 257 (1924), 3 Tex. L. Rev. 1 (1924); The Revival of Natural Law Concepts (1930); The American Doctrine of Judicial Supremacy (1932); The Role of the Supreme Court in American Government and Politics (1944).