The Liberal Evolution of Due Process (Part III)

The case Near v. Minnesota in 1931, the Bill of Rights incorporation advocates got their first major win. Near wrote offensive claims in his Minneapolis newspaper and the state shut it down under a gag order. The Court sided with Near but more importantly, they said that the due process clause of the Fourteenth Amendment applied to the First Amendment “freedom of the press” clause of the Bill of Rights. Also in 1931, the case Stromberg v. California was another big win for the First Amendment being applied to the states. The case involved a young girl who worked at a communist camp and part of their daily ritual was to raise the Russian Flag. The Court declared that Stromberg’s decision be reversed because she had the right of “freedom of speech (expression)” which was granted through the due process clause of the Fourteenth Amendment applied to the First Amendment. Finally, in DeJonge v. Oregon decided in 1937, the Court overturned DeJonge’s conviction for having an illegal communist assembly. The Court declared that the due process clause of the Fourteenth Amendment applied to the First Amendment’s “freedom of assembly clause”. Therefore, the Near-Stromberg-DeJonge line of cases decided that all three freedom of speech clauses of the First Amendment applied to all the states via the due process clause of the Fourteenth Amendment.

With the success of freedom of speech cases, Bill of Rights incorporation advocates then attacked the freedom of religion clauses of the First Amendment. In the 1940 Cantwell v. Connecticut case the Court reversed the conviction of Cantwell (a Jehovah Witness) citing the freedom of religion clause. Interestingly, the Jehovah Witnesses won most of the 40 cases they held before the Supreme Court. In Everson v. Board of Education in 1947 the Court upheld a New Jersey busing law that allowed tax monies to be used to bus students to and from all schools (private, parochial, or public). The Court cited the First Amendment “establishment” clause in its decision. The Court was adhering to the federal government’s responsibility in separation of church and state. Following the Everson decision the Court applied all clauses of the First Amendment to the states via the due process clause of the Fourteenth Amendment.

Other than Powell v. Alabama in 1932, the Court between 1930 and 1950 denied all Fourteenth Amendments due process claims applying to the criminal procedure amendments of the Bill of Rights. During this era and for a good portion of the 1950s, the Court applied Justice Felix Frankfurter’s definition of due process meaning did the individual get a “fair trial” and this was decided on a case by case basis. In Powell, the Court reversed the rape convictions of nine African-Americans citing the Sixth Amendment’s “right to counsel” clause. In Palko v. Connecticut in 1937 the Court denied Palko’s defense of the Fifth Amendment’s “double jeopardy” clause claiming he received a fair trial under the due process clause of the Fourteenth Amendment.

The Court case Adamson v. California in 1947 shed more light on where the court stood on the incorporation of the Bill of Rights to the states. The case was a Fifth Amendment “self-incrimination” clause case and by a 5-4 decision the Court upheld the Twining decision. Justice Hugo Black wrote the dissent and said the Bill of Rights (amendments 1 through 8) should be applied through the due process clause to the states. Black wrongly asserts that it is was the intention of the framers of the Fourteenth Amendment to apply the Bill of Rights to the states. Justice Rutledge concurred but went even further saying the Fourteenth Amendment due process clause should cover much more than just the Bill of Rights. Justice Felix Frankfurter wrote the majority opinion again stressing the need for “fair trials” on a case by case basis. He also rejects Black’s assertions by stating if it were the intend of the framers of the Fourteenth Amendment to incorporate the Bill of the Rights to the states then they not only had a bad way of stating it, there had been 80 years of precedent telling a different story (with the exception of the First Amendment). The case involving Oliver v. Michigan in 1948 was a Sixth Amendment “public trial” clause case denied by the Court. However, by the 1960’s the outcome of the Oliver case applied the Sixth Amendment through the Due Process Clause of the Fourteenth Amendment based on Justice Black’s majority opinion notes saying all people have the right to examine their witnesses, offer testimony, and the right to be represented by counsel in a public trial.