Mr. Palka was convicted of second-degree murder and sentenced to life imprisonment. The prosecutor appealed, claiming mostly procedural errors, and the appellate court sent the case back for a new trial. This time, Mr. Palka was convicted of first-degree murder and sentenced to death. Now Mr. Palka appealed, asserting his constitutional right against “double jeopardy”, according to which one should not be prosecuted twice of the same act. The U.S. Supreme Court held that Palka’s renewed trial by the State judiciary was okay by the Constitution and Mr. Palka could be executed.
Palko v. Connecticut 302 U.S. 319 (1937) is a relatively old case and it was even overruled later in Benton v. Maryland, 395 U.S. 784 (1969). So why is Palko still worthwhile? The case clarifies, very well I think, why it may be that different general principles apply to the States and to the Federal government. Based on this structural feature, the case furthermore illustrates something that is perhaps more thrilling: the philosophy of rights that seems to be inbuilt to the U.S. Constitutional law thinking. It seems to me that this thinking is the real stake in the controversies going on in the U.S. Supreme Court just now, in the spring 2022.
Two main sets constitute the Bill of Rights. The first set derives from the late 18th century and runs through Amendments I–X. What these contain is mostly familiar to us Europeans as well, such as the freedom of speech and right to fair trial, but there are also some rather strange things, such as the right against “quartering of troops”. The second set is the result of the Civil War (1861–1865) and it consists of the Amendments XIII, XIV and XV. The Thirteenth Amendment abolished slavery in the Southern States and the Fifteenth established citizenship for everyone born in the U.S.A.
The historical context of the Fourteenth Amendment, too, is the abolition of slavery and the Civil War. However, its evidently enormous significance leaves that context behind entirely. The Fourteenth Amendment becomes pervasive to the entire Constitution. This needs to be understood first from a structural point of view. There the peculiarity is that whereas the first set of rights was originally binding only on the Federal Government, the second set was expressly and especially directed against the States. This difference is what Palko case, too, is concerned with. So let us have a look.
The Fourteenth Amendment’s so-called due process clause says that the States may not restrict the life, liberty and property of individuals without “due process of law”. Now the question that seems to control Palkocase is whether the Fourteenth Amendment’s due process clause incorporates (“absorbs” or “embodies”) the Fifth Amendment right against double jeopardy. In other words, is that right an important chunk of the notion of “liberty” that is given in the Fourteenth amendment? The effect of such incorporation would be that the right against double jeopardy becomes binding, not only against the Federal Government, but against the States as well.
According to the Court, the right against double jeopardy was, in the Palko circumstances at least, not important enough to be incorporated by the Fourteenth Amendment. Therefore, it was not binding against the States in the way that, for example, the freedom of speech and right to a fair hearing were. What is it that made the difference between those rights and the rights that were not incorporated?
Let us analyze a little the ways in which Justice Cardozo explains, in Palko, how the said difference has been made. Cardozo’s first question seems to have been rather sweeping. He asks whether “right-minded men” would consider some limitation of a right “repugnant to the conscience of mankind” (323). If not, then the right in question is perhaps not exceedingly important.
However, certain rights are more important than others because they may “be found to be implicit in the concept of ordered liberty” (325). Such rights have been regarded as incorporated by the Fourteenth Amendment, said Cardozo, and therefore valid against the States. It is not enough, however, that these rights simply have some “value and importance” — according to Cardozo, they need to be more like “the very essence of a scheme of ordered liberty” (325).
Citing another case, Cardozo next refers to something such as the “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (325). If the rights in question were fundamental in this way, they should be regarded as incorporated, because “a fair and enlightened system of justice would be impossible without them” (325). So, there is a link between what is fundamental by people’s conscience and tradition, on the one hand, and what seems to stand as the condition of possibility of a system of justice, on the other hand. At the core of the latter, if not both, is the concept and scheme of an “ordered liberty”.
However, certain rights might very well be lost “and justice still be done” (325), says Cardozo. “Justice”, he thought, does not have to “perish” (326) altogether, even if some of the rights binding on Federal Government were not binding on the States. But then, how does one find out whether justice can be done, or rather perishes, without fully materializing the right in question? This requires a study of “the meaning, the essential implications, of liberty itself”, says Justice Cardozo (326).
One might get a feeling that the argument starts to repeat itself in circles here, but never mind. Cardozo’s broader point appears to anyway be that “we reach a different plane of social and moral values” (326) when considering a particular right as incorporated by the Fourteenth Amendment. The Court’s Justices have regarded some rights this way more important than others, says Cardozo, because of their “belief that neither liberty nor justice would exist if they were sacrificed” (326).
On this plane of social and moral values, we could perhaps say, borrowing the words of Cardozo, that the facts of the case should present “a hardship so acute and shocking that our polity will not endure it” (328). Likewise, the norms against which these facts are evaluated should stand for the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (328).
It is a well-known problem of legal philosophy whether all legal rights are given in “positive” law, or whether some rights are “natural” in the sense that they exist regardless of an express provision of law. Cardozo’s discourse represents a very modern solution to that dilemma: some rights may be seen as the necessary preconditions of the system that intends to establish an “ordered liberty” and moreover connected with “our people’s traditions and conscience”. These rights are neither “natural” nor “positive”, but inbuilt to and implied by the cultural system of the law.
Freddie Freeloader