Brief Fact Summary. Palko was indicted for murder of the first degree. The jury found him guilty of murder in the second degree and Connecticut appealed.
Synopsis of Rule of Law. The ban on double jeopardy was found not to be sufficiently fundamental under the selective corporation/fundamental rights approach to be incorporated in the due process clause of the Fourteenth Amendment and made applicable to the states.
Issue. Does the Fifth Amendment apply to the states through the due process clause of the Fourteenth Amendment?
Held. Justice Cardozo. No.
The Fifth Amendment, which is directed at the federal government creates immunity from double jeopardy by saying that no one shall be “subject for the same offense to be twice put in jeopardy of life or limb”. The Fourteenth Amendment provides that “nor shall any State deprive any person of life, liberty or property without due process of law.”
The first argument that all the original bill of rights should all be applied to the states through the fourteenth amendment is denied. There is no such general rule.
Instead, amendments are incorporated according to whether the amendment protects a right that is implicit to the concept of ordered liberty. Although the right to trial by jury and grand jury indictment is valuable and important, they are not of the every essence of a scheme of ordered liberty.
The case here is not one where the first trial was free from error and the state simply wanted to try the accused over again or to bring another case against him. The Court considered whether the statute allowed the prosecution to retry Palko until there was a trial free from substantial legal error. If there had been a trial adverse to the accused, there might have been review at his instance and as often as necessary to purge the vicious taint.
Discussion. There are two approaches.
The first is a total incorporation approach in which all of the guarantees specified in the Bill of Rights are made applicable to the states via the due process clause of the Fourteenth Amendment.
The second approach is the selective incorporation/fundamental rights view. The entire bill of rights is not made applicable to the states via the due process clauses of the Fourteenth Amendment. Instead the term “liberty” as used in that amendment is to be interpreted by judges without regard to the Bill of Rights. Only those aspects of liberty that are in some sense “fundamental,” are protected by the Fourteenth Amendment. That is, those parts of the bill of rights, which are of fundamental importance, are “selectively incorporated” into the Fourteenth Amendment.