The right to trial by jury and the immunity from prosecution except as the result of an indictment [both of which were excluded from due process at the time Palko was decided] may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them. What is true of jury trials and indictments is true also, as the cases show, of the immunity from compulsory self-incrimination. This too might be lost, and justice still be done. …
We reach a different plane of social and moral values when we pass to 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. … If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.
Id. at 325-327. Applying these principles, the Court concluded that, at least insofar as double jeopardy was implicated by the facts before it, no fundamental principle of justice had been violated. “The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error.” Id. at 328.
Justice Cardozo’s principled approach to due process does not necessarily lead to bright-line conclusions. Quite obviously some degree of subjective judgment must be exercised in determining whether any particular right is essential to an ordered system of liberty. And later decisions by the Supreme Court have disagreed with Cardozo’s conclusion that the right to a jury trial and the privilege against compulsory self-incrimination were nonfundamental. As the application of the fundamental rights principle in Palko indicates, however, the initial tendency of the Court was to be somewhat chary of finding an “absorption” into the Fourteenth Amendment.
A very different approach to incorporation was urged by Justice Black. In his famous dissent in Adamson v. California, 332 U.S. 46, 68 (1947), Black argued that the authors of the Fourteenth Amendment intentionally designed §1 of that Amendment to make all provisions of the first eight amendments to the Constitution applicable to the states; in other words, one purpose of §1 was, according to Black, to overturn Barron v. Mayor & City Council of Baltimore and make the entire Bill of Rights fully enforceable against the states. Black backed his argument with detailed references to the legislative history of the Fourteenth Amendment that tended to support his total-incorporation view. See 332 U.S. at 92-123 (Appendix to Black, J., dissenting). He also challenged the constitutional legitimacy of the fundamental or “natural” rights model of incorporation, seeing that approach as vesting the judiciary with an unwarranted authority to pick and choose rights according to the fashion of the day. Id. at 86-89. The net result of the Court’s approach, according to Black, was that the judiciary was free to ignore vital provisions of the Bill of Rights and at the same time create new rights that had no constitutional warrant. Both practices were, in Black’s view, contrary to the principles of limited government and to the very idea of a written Constitution.
During the Warren Court era, Justice John Marshall Harlan became the chief proponent of a variant of the fundamental rights model described in Palko. See Duncan v. Louisiana, 391 U.S. 145, 171-193 (1968) (Harlan, J., dissenting). In his view, Fourteenth Amendment due process embodied an evolving constitutional standard dependent only on concepts of fundamental fairness and ordered liberty, neither of which was defined or restricted by the provisions of the Bill of Rights. For Harlan, any overlap between the Bill of Rights and due process was “accidental.” Id. at 177. Even if the Fourteenth Amendment’s Due Process Clause were found to protect some of the same rights protected by the Bill of Rights, the comparable Bill of Rights provision would not be deemed literally “incorporated” into the Fourteenth Amendment. Instead, the two sets of rights would still exist separately, perhaps closely resembling each other, but still separate and distinct. In addition, Harlan’s model of due process included the possibility of embracing rights nowhere mentioned in the Constitution. See Poe v. Ullman, 367 U.S. 497, 522, 539-555 (1961) (Harlan, J., dissenting) (right of privacy).