PROCEDURAL DUE PROCESS OF LAW, CRIMINAL

The Barons at Runnymede did better than they knew. When they induced King John in 1215 to announce in magna carta that no man should be imprisoned or dispossessed "except by the lawful judgment of his peers and by the law of the land, " they laid the basis for a text that was to have greater significance in the development of American constitutional law than any other. In time "judgment of his peers" and "law of the land" came to be rendered alternatively as due process of law and in that form were adopted in the Fifth Amendment to the United States Constitution as a restriction upon the federal government: "No person shall … be deprived of life, liberty or property, without due process of law." In 1868, substantially the same language was employed in the fourteenth amendment as a restriction upon the states. Thus was embedded in the Constitution a phrase whose exegesis was to generate hundreds of decisions, libraries of commentary, and unending controversy, to this day. The Supreme Court has, over the years, used the due process clause to develop a variety of substantive restraints upon the power of government. This article, however, will deal only with the sense of due process closest to its original conception, namely, as the source of restrictions on the procedures through which governmental authority may be exercised over the individual in criminal cases.

In determining the procedures the Constitution requires of the federal government in criminal cases, the due process clause of the Fifth Amendment has been of limited significance. The bill of rights contains a variety of provisions explicitly directed to criminal procedure, and these rather than the due process clause have served as the principal vehicles for the development of a constitutional law of criminal procedure. So, for example, the Supreme Court has developed the constitutional law of permissible search and seizure through interpretations of the fourth amendment; the constitutional law with respect to double jeopardy and the right against self-incrimination through interpretations of the Fifth Amendment; the constitutional law with respect to speedy and public trial, trial by jury, notice, confrontation, of opposing witnesses, and the right to counsel through interpretations of the Sixth Amendment; and the constitutional law barring excessive bail, fines, and cruel and unusual punishment through interpretations of the Eighth Amendment. On the other hand, in determining the procedures the Constitution requires of state governments the due process clause of the Fourteenth Amendment has played the significant and decisive role.

PROCEDURAL DUE PROCESS OF LAW, CRIMINAL

What due process of law required and by what principles its meaning was to be ascertained were questions that were to preoccupy the Court for generations. They were raised early in murray ' s lessee v. hoboken land improvement co. (1856), a civil case involving the meaning of the Fifth Amendment's due process clause: "The Constitution contains no description of those procedures which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process that might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will." Nor, as the Court might have added, could the article be so construed as to leave the Court free to determine what is and what is not due process by its mere will. The effort of the Court to come to terms with this challenge is the central feature of the constitutional history of due process.

An early effort to state a principle for interpreting due process was the test of whether a procedure was in accord with settled practices in England before the Revolution and not rejected here after settlement. A practice that met this test accorded due process; a practice that did not failed to accord due process. The test served its purpose in some cases, but it soon proved insufficient, for whatever value it had as a fixed determinant of meaning was over-balanced by its inability to reflect changing times and needs and evolving perceptions of what fairness requires. For example, the settled English practice of initiating a prosecution, customarily continued in this country, was indictment by a grand jury. Did this mean that due process fastened that procedure upon the states? This was the question at issue in hurtado v. california (1884), where the Court faced a California innovation permitting a prosecutor to initiate a prosecution by filing an information on his own, after a preliminary hearing before a magistrate on whether there was sufficient cause. The Court upheld the procedure despite its deviance from settled practice because it could find in the new procedure no significant prejudice to the rights of the accused. More decisive than the state of English practice was whether the challenged procedure comported with "those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." To regard established usage as "essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." Thus, the Court limited the traditional test: a practice sanctioned by immemorial usage necessarily accorded due process, but one not so sanctioned was not necessarily inconsistent with due process. In time, however, the Court rejected the remaining limb of the test as well. It had been well settled in England that a felony defendant had no right to be represented by counsel, and although that had been rejected in the United States Constitution and in the states, the change had not gone so far as to require appointment of counsel for indigent defendants. In powell v. alabama (1932) the Court held nevertheless that the failure to appoint counsel for uneducated and indigent defendants in a capital case in circumstances in which they had no real opportunity to present a defense denied due process of law. Of more significance to the Court was its judgment of the "fundamental nature" of the right to be represented by counsel, which in these circumstances was essential to the right to be heard at all.

The test, then, that came to prevail in judging the constitutionality of procedures in state criminal prosecutions was that of fundamental fairness in the circumstances of the particular case. Over the years a variety of formulations were used in an effort to give greater content to the test. Concerning each procedural safeguard that was being asserted, the Court would ask whether it was "of the very essence of a scheme of ordered liberty, " or whether a "fair and enlightened system of justice would be impossible without it," or whether "liberty and justice" would exist if it were sacrificed, or whether it was among those "immutable principles of justice, acknowledged… wherever the good life is a subject of concern." Concerning the procedure applied in the contested prosecution, the Court asked whether it violated a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," or whether its use subjected a person to "a hardship so acute and shocking that our polity would not endure it," or whether it offended "those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses," for due process "embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history."

Whether any or all of these phrases succeeded in accomplishing anything more than to remit the issue to the intuitive sense of fairness of each Justice; whether, as Justice hugo l. black asked in rochin v. california (1952), there could possibly be "avenues of investigation … open to discover 'canons' of conduct so universally favored that this Court should write them into the Constitution" were issues that troubled the Justices and commentators alike. These doubts led to the development of an alternative test to determine the meaning of due process; namely, that due process should be taken to mean no more and no less than the specific guarantees of the Bill of Rights. In short, the due process clause of the Fourteenth Amendment "incorporated" as restrictions upon the states the provisions of the first eight amendments originally written as restrictions upon the federal government. The first Justice john marshall harlan was the first to advance the argument in several of his dissenting opinions, including Hurtado and O'Neil v. Vermont (1892). The issue was revived in modern times when Justice Black took up the cudgels in Adamson v. California (1947). The Adamson case involved the constitutionality of California law allowing adverse comment to the jury on a defendant's failure to explain or deny evidence against him. In a federal prosecution this practice would have violated the Fifth Amendment's right against self-incrimination. But, of course, under the settled doctrine this was not determinative. The Court had to find that this particular aspect of the self-incrimination privilege—that which disallowed comment on its exercise—was essential to fundamental fairness to the defendant, and this the majority declined to do. The majority could find nothing in the California practice that denied the defendant a fair trial. He was not compelled to testify. True, if he did testify he would open the record to evidence of his prior convictions, but, "When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes." Justice Black dissented, arguing that a violation of the Fifth Amendment right against self-incrimination was necessarily a denial of due process under the Fourteenth Amendment.

Justice Black's arguments in favor of the incorporation doctrine, as first announced in Adamson and developed in later opinions, notably in his concurrence in duncan v. louisiana (1968), were grounded in a study of the history of the adoption of the Fourteenth Amendment, which convinced him that it was the intent of the amendment's framers that it should incorporate the Bill of Rights as a restraint upon the states. For Black, the Constitution did not endow the Court with power to expand and contract the meaning of due process to accord with the Court's assessment of what fundamental fairness required at any particular time. The fundamental fairness test was a resort to "natural law," depending "entirely on the particular judge's idea of ethics and morals instead of requiring him to depend on the boundaries fixed by the written words of the Constitution." Such a test was inconsistent with "the great design of a written Constitution." The specific language of the Bill of Rights would confine the power of the Court to read its own predilections into the Constitution.

Moreover, Black believed that the Bill of Rights, more reliably than the fundamental fairness test, would guide the Court to outcomes consistent with the values of a democratic society. In Black's view the judgment of the Framers of the Constitution would serve better than each Justice's personal judgment in determining what fairness required in criminal prosecutions. Indeed, the record of the Court's administration of its fundamental fairness test was for Black the clearest demonstration of his argument. He was speaking hyperbolically when he said in Rochin that the traditional test had been used "to nullify the Bill of Rights," but the fact was that in most instances the Court, as in Adamson, had used the fairness standard to uphold state convictions that would have been reversible had the specific provisions of the Bill of Rights been applicable.

Black's primary antagonist on this use, as on many others, was Justice felix frankfurter, in later years joined by the second Justice john marshall harlan. They rejected Black's interpretation of the history of the Fourteenth Amendment's adoption, finding no plausible evidence that it was intended to incorporate the Bill of Rights as a restraint upon the states. But, beyond that, they advanced a very different approach to constitutional interpretation. According to Frankfurter and Harlan, the provisions of the first eight amendments were not equally fundamental. Some, like the guarantees of freedom of speech and religion, stated enduring values and were, therefore, binding on the states through the "independent potency" of the Fourteenth Amendment. Others, such as those protecting the right against self-incrimination and jury trials, "express the restricted views of Eighteenth-Century England regarding the best methods for the ascertainment of facts." Not every procedure that was historically protected by these provisions was necessary for fundamental fairness, though some might be of this character. Still others, such as the requirement of a grand jury indictment and the right to a jury in civil cases where the amount in controversy exceeded twenty dollars, were largely historical relics. The terms of the Bill of Rights, all of them and only them, were, therefore, an unsuitable text for carrying out the commands of fundamental justice embodied in the requirement of due process of law. Changing circumstances would create new and unforeseen problems, casting new light on the question whether a given procedural guarantee was "fundamental." Only an evolving and flexible due process could assure preservation of the procedural requirements of a free society without binding the criminal process unnecessarily to the forms of the past.

Justices Frankfurter and Harlan conceded that the Court had sustained state procedures whose use would have been forbidden under the Bill of Rights. What mattered, however, was that it had done so only after satisfying itself in each case that the defendant had not been denied fundamental fairness. For example, the Fifth Amendment might forbid a federal prosecutor to appeal a conviction of a lesser offense than that charged and to prosecute under the original indictment if the appeal succeeds, but, as the Court held in Palko v. Connecticut (1937), the requirements of civilized justice would not be compromised by permitting a state to continue a similar prosecution until it achieved a trial free of substantial error. A jury of twelve persons might be required of federal prosecutions by the Sixth Amendment, but, as the Court held in Maxwell v. Dow (1900), it did not follow that a person could not receive a fundamentally fair trial in a state court before a jury of fewer members. Where, on the other hand, state practices fatally infected the justice of the convictions—as in Powell v. Alabama (1932) where the accused was deprived of a fair opportunity to present a defense, or in brown v. mississippi (1936), where torture was used to extract a confession, or in moore v. dempsey (1923) where the trial itself was a sham and a pretense—the Court did not hesitate to employ the fundamental fairness standard of due process to strike down the convictions.

In addition, Justices Frankfurter and Harlan emphasized the importance of the Court's avoiding excessive intrusions into the autonomy of the states. The Framers had deliberately chosen to create a federal rather than a wholly centralized system, partly to assure the limitation of power through its dispersal but also to obtain the benefits of autonomy and diversity in state government. Total incorporation of the Bill of Rights into the Fourteenth Amendment would impose a constitutional straitjacket on the states, stifling experimentation by the states in the administration of justice in the name of an unneeded uniformity.

As for the peril of judges' confusing their purely personal preferences with the requirements of the Constitution, Frankfurter and Harlan argued that this risk was inherent in judicial review—no less under the incorporation doctrine than under the fundamental fairness test. Giving meaning to particular provisions of the Bill of Rights, whose major provisions were written in open and general terms, would require judicial inquiry equally broad and open. The peril of judgment on the basis of personal preferences, they argued, must be met by judicial deference to the judgment of state governments and by a rigorous search for the fundamentals of fairness required by the nature and commitments of our society.

Though Justice Black lost the debate in Adamson, he continued to advance the cause of total incorporation to his final days on the Court. He never succeeded in persuading a majority, but although he lost some battles he won the war. When the dust cleared two decades after Adamson, the fundamental fairness standard (though significantly modified) still reigned as the accepted test of due process, but every provision of the Bill of Rights bearing on criminal procedure, with the single exception of the requirement of grand jury indictments, had been held applicable to the states.

This development occurred through the increased use of the strategy of selective incorporation, under which selected clauses of the Bill of Rights were held to be binding on the states as such in the view that they were required by fundamental fairness. Consistency with prior decisions was grounded in the view that what the Court had repeatedly rejected was the theory of total incorporation, not the view that some provisions of the Bill of Rights could be binding on the states through the due process clause. As Justice benjamin n. cardozo, an early opponent of the total incorporation doctrine, had observed in palko v. connecticut (1937): "In [certain] 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 liberty and thus, through the Fourteenth Amendment, become valid as against the states." Yet it is important to note that this justification for the new doctrine blurred an important distinction in the traditional view, which was that some rights protected by the provisions of the Bill of Rights might prove so central to ordered liberty that they were also binding on the states through the due process clause. This was not to say, however, that certain provisions of the Bill of Rights, in their entirety with all their interpretations, were incorporated by the due process clause.

In the decade following Adamson the Court was apparently not yet ready to take this leap from the traditional view to the new doctrine of selective incorporation. Instead, the Court developed a number of significant expansions in its conception of what fundamental fairness required that prepared the ground for the flowering of the selective incorporation theory a decade later. An early important instance was wolf v. colorado (1949), in which the Court held, in an opinion by Justice Frankfurter, that "the security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—… is implicit in "the concept of ordered liberty" and hence enforceable against the states through the due process clause. Still, the opinion was careful not to say that the Fourth Amendment as such was applicable to the states, and the Court declined to apply the remedy it had developed for enforcing the Fourth Amendment in federal prosecutions—excluding the unlawfully seized evidence. Other cases carried the movement forward. The Court in Rochin found that pumping an accused's stomach to obtain incriminating evidence was so "shocking to the conscience" that due process required the conviction to be reversed. Increasingly the Court found the failure to appoint counsel for indigent defendants to violate due process under the "totality of circumstances" rule of betts v. brady (1942), which required specific prejudice to be identified in the record. The circumstances in which the Court held confessions involuntary and, therefore, barred by due process were extended in Spano v. New York (1959) beyond physical coercion to include situations in which the defendant's will had been overborne by more subtle means of influence, such as persistent interrogation and trickery.

In the 1960s, however, the traditional test of fundamental fairness yielded to selective incorporation as the Court's dominant approach in reviewing the constitutionality of state prosecutions. A change of mood had taken place. For a variety of reasons—change in the composition of the Court, the civil rights movement, the "War against Poverty"—the consensus on the Supreme Court moved toward greater intervention on behalf of criminal defendants, the great majority of whom were poor and members of minority groups. The continued enlargement case by case of the requirements of "fundamental fairness" was one possible alternative. But if, as the Justices apparently increasingly believed, excesses in the states' administration of criminal justice required extensive judicial correction, then something more was needed than the power to intervene in occasional cases of gross injustice. As a consequence the 1960s saw one of the remarkable accomplishments of the Warren Court—the federalization of state criminal procedure through the selective incorporation of the Bill of Rights.

Mapp v. Ohio (1961) marked the beginning. Effective control of state law enforcement required a constitutional remedy for law enforcement excesses. The exclusionary rule, which barred admission of unconstitutionally obtained evidence, had been developed decades earlier as a remedy in federal prosecutions. In Wolf v. Colorado the Court had declined to apply the exclusionary rule to the states, saying that a conviction based on reliable physical evidence was not fundamentally unfair just because the police had obtained the evidence by unconstitutional means. In Mapp the Court overruled that holding. The Court had, after all, already held in Wolf that the Fourth Amendment's right of privacy was enforceable against the states. It seemed natural to take the further step of holding that the remedy used to enforce Fourth Amendment privacy rights against federal violations was no less required to enforce "due process" privacy rights against state violations. If Fourth Amendment rights were basic to liberty, so must be the only practical means for their enforcement.

The next major case, gideon v. wainwright (1963), also had features that made it a relatively easy case for extending selective incorporation. The Court had earlier held in Betts that appointment of counsel for indigents, though required by the Sixth Amendment for federal prosecutions, was not necessarily a fundamental right protected by due process. In the special circumstances of some particular prosecution, failure to appoint counsel might constitute a lack of fundamental fairness, but absence of counsel would not necessarily create this level of prejudice in every case. However, the "special circumstances" doctrine was gradually undermined in successive cases as the Court increasingly was able to find those circumstances in cases that were typical. As Justice Harlan observed, "The Court had come to realize … that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial." Against this background there was little resistance to overruling Betts and, in the process, holding that the Sixth Amendment's guarantee of counsel was one of those clauses which fundamental fairness required to be imposed upon the states by the Fourteenth Amendment.

From then on scarcely a term of Court in the 1960s went by without the Court's overruling some prior case to hold that an additional provision of the Bill of Rights was necessary to fundamental fairness and was, therefore, incorporated in due process. In 1965, in Griffin v. California, the Court overruled Adamson and held that the Fifth Amendment right against self-incrimination was protected by due process. The Sixth Amendment right to confrontation of witnesses was held to be incorporated in Pointer v. Texas (1965), and the rights to a speedy and public trial and to compulsory process for obtaining witnesses were also held to be incorporated in klopfer v. north carolina and Washington v. Texas (1967). In duncan v. louisiana (1968), the Court overruled earlier decisions and held that the Sixth Amendment's right to a jury trial was incorporated in due process. In benton v. maryland (1969), Palko was overruled and the double jeopardy provision was held applicable to the states. The job was done. To all intents and purposes, the contours of due process of law required of the states by the Fourteenth Amendment had come to be defined by the specific guarantees of the Bill of Rights limiting the federal government.

One may fairly ask of this constitutional tour de force how well it was defended in doctrinal analysis. The position favoring total incorporation had a forceful logic: once the initial premise was accepted, it followed that every provision of the Bill of Rights and every interpretation of those provisions developed for federal prosecutions should apply equally to state prosecutions. But how was the theory of selective incorporation to be justified? Did the Court seriously mean that all the rights the Court had previously found in selected provisions of the Bill of Rights—such as the jury trial provision of the Sixth Amendment, the Fifth Amendment's protection against self-incrimination, the Fourth Amendment restraints upon search and seizure (including the right to have even reliable evidence excluded if it were unlawfully obtained)—all were so fundamental that "a fair and enlightened system of justice would be impossible" without them? This conclusion could scarcely stand scrutiny. As the Court had noted in earlier cases holding these guarantees unprotected by due process, a large portion of the democratic world, with claims to a civilized and enlightened system of justice no less strong than ours, offers no such guarantees.

Very little effort was made to address this challenge until Justice byron r. white (in a footnote, ironically) did so in his opinion for the Court in Duncan v. Louisiana (1968), holding the jury trial guarantee of the Sixth Amendment incorporated by the due process clause. He ascribed the rejection of the earlier holdings to a new interpretation of what fundamental fairness meant. The Court had previously understood it to require those guarantees that a system of justice anywhere at any time would have to accord to be called civilized. In the newer cases, however, the Court proceeded on the view that fairness required those guarantees that are necessary to an "Anglo-American regime of ordered liberty." It is not required, White noted, that a procedural guarantee be "necessarily fundamental to fairness in every criminal system that might be imagined," but that it be fundamental "in the context of the criminal processes maintained by the American states."

Whether this revision of the fundamental fairness test suffices as a basis for selecting particular provisions of the Bill of Rights for incorporation is problematic. If the new test refers to practices that have so long been accorded in American systems of justice that they have come to be regarded as among the distinguishing characteristics of American justice, then "fundamental" becomes equivalent to "traditional," all the provisions of the Bill of Rights are fundamental, and the accepted test of selective incorporation becomes in fact the rejected test of total incorporation. It would appear, however, that something more was meant. Criminal justice systems, like other social institutions, are complex and comprise a variety of elements that function in a delicate ecological relationship. Given the particular functioning of some procedural protection in the American system, it may be that the protection is fundamental to fairness in that system, although it would not be in a system with a different assortment of procedural elements with differing functional relationships. So, in the Duncan case, Justice White noted that although it was easy to imagine a fair system that used no juries, in which alternative guarantees and protections would serve the purposes the jury serves in English and American systems, no American jurisdiction had undertaken to construct such a system.

If this latter interpretation of fundamental fairness were taken seriously, the Court would be obliged to undertake in each case a factual examination of the complex functioning of the state's criminal justice system, with particular attention to how the functioning of the system as a whole colors the significance of the practice at issue. But no such inquiry was made in the Duncan case. The opinion drew attention to the long-standing concern about overzealous prosecutors and biased judges. But it made no effort to examine such questions as whether the routine availability of appellate review in the state courts and collateral attack in the federal courts rendered a jury trial less indispensable as a protection against such abuses; or why, if the use of a jury for this purpose made it a requirement of fundamental fairness in the American system, it was not required in all civilized systems; or whether a jury of randomly chosen citizens in fact served as a check against bias rather than as a source of bias. The Court also pointed generally to the traditional acceptance in America of a jury power of nullification in the application of the law. But the Court failed to consider why this power is significant, and why, in other systems, a comparable power of nullification is not seen to be required by fundamental fairness.

The point is not that the Court could not have made a case for the conclusion that fundamental fairness required the jury in the American system of justice, but that it did not try. Nor did the Court do better in the other cases applying the doctrine of selective incorporation. In the end, therefore, there is force in the conclusion that the Court's attempt to shore up the doctrinal case for selective incorporation was an illusory post hoc rationalization.

An additional consideration, strongly pressed by Justice Harlan in his dissenting opinions, lends further support to that conclusion. Even if it be granted that a guarantee to be found in a provision of the Bill of Rights is required by fundamental fairness in an American system of justice, it does not follow that each and every interpretation of that provision developed in federal prosecutions is equally required for fundamental fairness. For example, the Fifth Amendment's privilege against self-incrimination has been held in federal prosecutions to preclude judicial or prosecutorial comment on the failure of the defendant to respond to the evidence against him. The Fifth Amendment's protection against double jeopardy has been interpreted to attach at the time the jury is first sworn. The Sixth Amendment's guarantee of a jury trial in criminal cases had once been held to require a unanimous verdict of the jury. But even if the core concept of the privilege against self-incrimination, the double jeopardy protection, and the jury trial guarantee were found to be necessary for fundamental fairness, it would scarcely follow that each and every one of these interpretations of the federal guarantees is also necessary. Yet, in sharp contrast to the requirements of the avowed theory of selective incorporation, this is what the Court had held in every instance: a conclusion that a clause of the Bill of Rights is applicable to the states necessarily entails that each and every interpretation of that clause developed in federal prosecutions, regardless of its rationale or significance, becomes fully applicable as well, as Harlan said, "jot-for-jot and case-for-case" and "freighted with [its] entire accompanying body of federal doctrine" (Duncan v. Louisiana, 1968; Malloy v. Hogan, 1964). This conclusion constitutes further evidence that the Court was not taking seriously the only theory it had advanced to support its doctrine of selective incorporation.

Putting aside the doctrinal warrant of the approach to procedural due process that has come to prevail, what has been its impact on the administration of criminal justice in the states and what is its likely bearing on the future of due process? It is clear that the values of federalism have been heavily overrun. Given the expansive, pervasive, and often highly detailed regulations the Court has imposed on the processes of criminal justice under warrant of the Bill of Rights, one has to conclude that the autonomy of state government has been drastically curtailed.

At the same time, it is almost certainly true that the procedural rights accorded the accused in state courts have been greatly expanded over what they would have been had this federalization not taken place. The expansion of constraints upon the administration of justice during the era of the Warren Court in the 1960s has been one of the notable characteristics of that Court. Few state courts and no state legislatures could have been expected on their own to have achieved anything like a comparable expansion. People will differ over whether the balance between effective law enforcement and the rights of the accused thereby achieved resulted in a preferable system of criminal justice than would have been obtained under the earlier doctrine. Most would agree, however, that the coalescing of the minimum constitutional rights of the accused in both state and federal prosecutions has tended to produce a constitutional jurisprudence more understandable to the citizen who does not typically distinguish between state and federal government in considering the rights of the accused.

On the other hand, the presumed advantage in using the Bill of Rights to measure what due process requires of the states—that it eliminates the uncertainty and the need for personal, subjective decision-making by judges imposed by the traditional view—has hardly been evident. In deciding what searches are "reasonable" within the Fourth Amendment, how far that Amendment protects a right of privacy against new forms of electronic eavesdropping, when noncoercive police interrogation becomes violative of the Fifth Amendment's right against self-incrimination, what punishment, including capital punishment, is "cruel and unusual" within the Eighth Amendment (which the Court in trop v. dulles (1958) conceded had to be determined by "the dignity of man" and "evolving standards of decency"), it was readily apparent that the text of the Bill of Rights scarcely spoke for itself and in fact invited no less an assessment and choice among competing values on the basis of the Justice's sense of what justice and fairness required. Fixed meanings have not triumphed over flexible ones, and judicial subjectivity has not been contained. More seriously, insofar as the Court has proceeded on the false assumption that the need for judicial value choosing has been overcome, it has handicapped itself in the task of developing a well-considered method of decision-making that would discipline and make more rational the inevitable process of choosing among competing values.

This concern is particularly pressing because the Court has recognized that due process is still open-ended, that although due process includes the incorporated clauses of the Bill of Rights, those clauses do not exhaust the content of due process. The 1952 decision in Rochin, that a state denied due process by using evidence pumped from the accused's stomach against his will, was reaffirmed in schmerber v. california (1966) under the principle that due process precludes action against an accused that "shocks the conscience" and violates one's "sense of justice," notwithstanding the inapplicability of any other provision of the Bill of Rights. Similar evidence of the vitality of the older tests of due process where the Bill of Rights does not reach are the Court's decisions in in re winship (1970), holding that an essential requirement of due process in criminal cases is proof of guilt beyond a reasonable doubt, and in the capital punishment cases of 1976, finding in due process a requirement of articulated criteria to guide the judge or jury in determining whether to impose capital punishment.

One may conclude that despite the victory of selective incorporation the task of developing a defensible method and set of criteria to govern the determination of those criminal procedures that are constitutionally permissible is very much before the Court. How it could best be met is uncertain. One proposed approach would entail a consideration of a number of issues. In this view the Court would begin by drawing out the implications of the basic values animating constitutional restraints on the criminal process: fairness to the accused, protection of personal dignity, and the reliability of the processes for determining guilt. Next, the Court would determine how gravely the controverted procedure impugned those values and how seriously certain restraints would prejudice the due administration of criminal justice. Finally, the Court would seek ways of rooting the inevitable final choices in ground more secure than the personal judgment of the majority of the Justices on the optimum operation of the system of criminal justice. Another approach, less oriented to consequentialist considerations, would have the Court determine the fundamental legal rights of persons, including the constitutional rights of the accused, in terms of the requirements of a general political theory that best account for the moral principles embedded in the Constitution, laws, and culture of our society. Whatever the answer, the task is a formidable one. Indeed, the effort may ultimately be futile, as those believe who view the Court as indistinguishable from any other political body in the exercise of its power. But to the extent that the Court accepts the claim that its exercise of political power is based on reason and disinterestedness—that is, on law—it can scarcely abandon the goal of writing opinions that give credence to the claim. However one may approve its results, the doctrine of selective incorporation, with its oversimplifications and misperceptions, and its dubious doctrinal underpinnings, has not served that goal well.

Sanford H. Kadish
(1986)