Guest Essayist: Robert Lowry Clinton

Palko v. Connecticut resulted from the appeal of a capital murder conviction. Palko was charged with killing a police officer during the commission of an armed robbery. Although he was charged with first degree murder, he was convicted of second degree murder and sentenced to life in prison. The state of Connecticut appealed the sentence, alleging that the trial judge had failed to admit relevant testimony and given erroneous instructions to the jury. The state supreme court ordered a retrial, at the conclusion of which Palko was convicted of first degree murder and sentenced to death. Palko appealed the second conviction and sentence in the state courts but lost, after which he petitioned the United States Supreme Court, arguing that the second trial amounted to double jeopardy in violation of the Fifth Amendment of the United States Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Palko argued further that protection against double jeopardy was an essential ingredient of the due process of law guaranteed by the Fourteenth Amendment, which provides that no state may deprive a person of life, liberty or property without due process of law. This amendment, designed primarily to safeguard the rights of newly-freed slaves, had been adopted in the aftermath of the Civil War in 1868.

Thus the main issue raised by Palko’s contention was the applicability of the federal Bill of Rights to the states. A little background is in order here. The issue was raised for the first time before the Supreme Court in the 1833 case of Barron v. Baltimore. In that case, the owner of a wharf beside a creek had his business destroyed by the city of Baltimore’s paving of its streets. Barron claimed that the city should compensate him for his loss because of a provision in the Fifth Amendment which provided that no property should be taken for public use without payment of “just compensation.” The Court ruled unanimously (per Chief Justice Marshall) that the limitations on government in the Bill of Rights restricted the national government only, and were not designed to apply to the states.

There the matter stood until 1897, when the Court decided Chicago, Burlington and Quincy Railroad v. Chicago. In that case, tracks owned by the railroad company had been paved over by the city of Chicago and the company sought compensation for the damage. The Court ruled that the compensation provision of the Fifth Amendment, though not applicable directly against the states, was nonetheless an essential component of the due process of law guaranteed by the Fourteenth Amendment–which does directly limit states. Then in the 1920s and 1930s, several additional cases were decided by the Supreme Court that held provisions in the Bill of Rights to be applicable against the states, at least in certain circumstances. These provisions included the First Amendment’s protections of freedom of speech and freedom of the press, and the Sixth Amendment’s guarantees of the right to counsel and impartial juries.

As may easily be seen from the foregoing observations, by 1937 the issue of the relation between the federal Bill of Rights and the states had been thrown into serious confusion. Justice Benjamin Cardozo, writing for an 8-1 majority in Palko, attempted to resolve the confusion by dividing the protections afforded by the Bill of Rights into two categories. Acknowledging that some of the provisions of the Bill of Rights had already been “brought within the Fourteenth Amendment by a process of absorption,” Cardozo reasoned that this was because some of the provisions in the Bill of Rights were more fundamental than others. In this category were placed those protections that must be regarded as “implicit in the concept of ordered liberty,” without which “neither liberty nor justice would exist.” Included here are, for example, freedom of thought and speech, which Cardozo and his colleagues regard as “the matrix, the indispensable condition, of nearly every other form of freedom.” Likewise, the Sixth Amendment right to counsel must be considered essential to justice in some circumstances, such as when ignorant or illiterate defendants are refused the aid of counsel in criminal trials.

On the other hand, some provisions in the federal Bill of Rights do not, according to the Palko Court, rise to the highest level of fundamentality. For example, the Court reasoned that, though the right to a trial by jury, or to a grand jury indictment, or to immunity from compulsory self-incrimination “may have value and importance,” they are “not of the very essence of a scheme of ordered liberty.” They “might be lost, and justice still be done.” Unfortunately for Palko, the Court ruled that the Fifth Amendment protection against double jeopardy fell into this second, non-fundamental category, had not been “absorbed” by the Fourteenth Amendment’s due process clause, and thus did not bind the states.

Also unfortunately, Cardozo’s attempt to rationalize the “absorption” of certain Bill of Rights provisions into the Fourteenth Amendment did not have the result he had hoped for. It is clear that his main purpose in the Palko opinion was to set forth a limiting principle that would strike an acceptable balance between state autonomy and federal standards in cases involving individual rights. His rationalizing principle was designed to distinguish clearly between rights so essential to liberty and justice that any legal order without them would be barbaric, and rights that are considered valuable in our own legal order but would not render us uncivilized if we didn’t have them. Consider, for example, jury trials, which are widely used in the United States and other nations influenced by the traditions of English common law, but hardly at all in nations whose legal traditions are Roman in origin.

Although the principle might have been clear to Justice Cardozo, it never became clear to the Court, and the Palko opinion ended up generating the doctrine of “selective incorporation,” according to which the Court–for the next three decades–applied provision after provision in the federal Bill of Rights against the states through the Fourteenth Amendment’s due process clause on a case-by-case basis. Palko itself was explicitly overruled in 1969, when, in Benton v. Maryland, the Court held that the double jeopardy provision of the Fifth Amendment was applicable to the states via the Fourteenth Amendment. The Benton decision signaled the triumph of the wholesale intrusion on state authority that Cardozo had tried to prevent.

Palko v. Connecticut (1937) Supreme Court decision:

Robert Lowry Clinton holds B.A. and M.A. degrees from Texas Tech University and a Ph.D. in Government from the University of Texas at Austin. He is the author of Marbury v. Madison and Judicial Review and God and Man in the Law: The Foundations of Anglo-American Constitutionalism (both published by the University Press of Kansas), as well as numerous journal articles and book chapters. He is a Fellow of the Center of Science and Culture at the Discovery Institute in Seattle, Washington, and was a Fellow of the James Madison Program in American Ideals and Institutions at Princeton University in 2007-08. Dr. Clinton’s main fields of study are in Supreme Court history, constitutional jurisprudence, social and political philosophy, and political theology.


Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism. Lawrence: University Press of Kansas, 1997.

Walter F. Murphy, James E. Fleming, Soterios A. Barber and Stephen Macedo, American Constitutional Interpretation, 3rd Edition. New York: Foundation Press, 2003.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    This is a fascinating essay on several levels.

    Although the BoRs was implemented to protects our rights from Federal overreach, any casual reading of the Founding Fathers clearly reveals they expected their rights to be protected at all levels of Government. I am in general a States rights person, but still believe that the BoRs reigns supreme everywhere.

    Although item one is intellectually interesting I find this item to be disturbing, namely; that some rights are “more fundamental” than others. Freedom of thought or speech – yes, Freedom of religion, press, peaceably to to assemble, to petition the government -maybe?. No!
    Wow. This explains a lot. People can say anything anywhere at anytime within ear shot of anybody. But talk about Jesus or practice the conviction of conscious and face prosecution for violating someone else s rights.

    The 3rd is I am amazed that it takes the 14th amendment for the other amendments to have authority. That just seems ridiculously illogical to me. BoRs that can’t be enforced until someone added an amendment that said the BoRs are to be applied. Like the man said, “Common sense is not so common.” or “Professing themselves to be wise they became foolish.” or I just am blinded to see the underlying dilemma.

    Anyway, very thought provoking. Leaves me shaking my head [literally].



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