TWINING v. NEW JERSEY 211 U.S. 78 (1908)

Twining formed part of the line of decisions, from hurtado v. california (1884) and maxwell v. dow (1900) to palko v. connecticut (1937), in which the Supreme Court denied that the traditional Fifth and sixth amendment rights of accused persons were fundamental rights protected against state infringement by the fourteenth amendment. In Twining, an eight-man majority, speaking through Justice william h. moody, held that neither the privileges and immunities clause nor the due process clause incorporated the right against self-incrimination. The Court also considered whether some of the personal rights safeguarded by the bill of rights might be safeguarded against the states because to deny those rights would be to deny due process of law. That is, apart from the question whether the Fourteenth Amendment's protection of immunities and liberty had the effect of incorporating the Fifth Amendment right, the Court also decided the question whether the concept of due process itself was of such a nature as to include the right against self-incrimination. Was a denial of that right a denial of due process?

Although Moody admitted that the Court would not allow history to "strait-jacket" constitutional law, he resorted to "every historical test" to determine how history "rated" the right in question. Moody was a pathetically poor historian; his mangling of the little evidence he knew led him wrongly to conclude that the right against self-incrimination was neither a fundamental right nor part of due process of law. On that reading of history he decided that the state had not violated the Constitution by permitting a trial court to instruct the jury that they might draw adverse inferences against a defendant because of his reliance on the right against self-incrimination or his failure to testify.

Justice john marshall harlan delivered another lone dissenting opinion, arguing that immunity against self-incrimination, like the right to indictment by grand jury and the right to trial by jury, should be deemed fundamental and applicable to the states. Whether he believed that the privileges and immunities clause or the due process clause, or both, incorporated the right is not clear; but he certainly believed it to be essential to due process.

At the time the Court held a narrower view of procedural due process, it used an expanded substantive due process to protect corporations and prevent Congress from protecting trade unions (see Adair v. United States, 1908). Adamson v. California (1947) reaffirmed Twining, but the Court overruled both cases in malloy v. hogan (1964).

Leonard W. Levy
(1986)

(see also: Incorporation Doctrine.)