The Liberal Evolution of Due Process (Part V)

The Pointer v. Texas case in 1965 was over a Sixth Amendment “confrontational” clause issue. Although the decision was unanimous to overturn the decision against Pointer, not everyone agreed that that confrontational clause should apply to the states via the due process clause of the Fourteenth Amendment. With Frankfurter off the court, Justice Harlan agreed with the decision but not the methodology. Harlan agreed with the majority because he felt that Pointer did not receive a “fair trial” based on due process of the law. He disagreed with the incorporation or nationalization of the Bill of Rights to the states. The Washington v. Texas case in 1967 the Court applied the Sixth Amendment “compulsory process” clause to the states via the due process clause. Once again the decision was unanimous but once again Harlan vastly disagreed with the methodology and overall outcome to apply the compulsory process clause to the states.

The following cases closed out the Warren Court’s assault on state rights and made just about every clause in the Bill of Rights applicable to the states (by 1969 only the Second, Third, Seventh, Grand Jury Clause of the Fifth, and the Excessive Fines and Bail clause of the Eighth had not been applied to the states): Klopfer v. North Carolina in 1967 (Sixth Amendment Right to a speedy trial – unanimous decision), Duncan v. Louisiana in 1968 (Sixth Amendment “jury trial” clause allowed for all “serious” crimes). The case did not apply to the Seventh Amendment or twelve person juries requiring a unanimous decision. Parker v. Gladden in 1966 (Sixth Amendment “impartial jury” clause – a Bailiff made prejudicial remarks to a jury). Benton v. Maryland in 1969 (Fifth Amendment “double jeopardy” clause). This case overturned Palko v. Connecticut.

So how did the Warren Court accomplish nationalizing the Bill of Rights in just 8 years when not a single criminal procedure clause applied to the states the first 92 years after the passing of the Fourteenth Amendment? The selective incorporation process used by the Warren Court provided no theory or justification for their decisions. Justice Harlan said “they compromised on the ease of Black’s incorporation position without any internal logic”. The Court made decisions on arguments not even mentioned in the briefs or oral arguments. The Court overturned cases that followed federal precedent to the T. The Court directed defense counsel in Gideon, Washington, and Benton what clauses of the Bill of Rights to focus their case upon. In the Benton case reversal of the larceny conviction did not affect his concurrent sentence – hence, double jeopardy did not matter. In Miranda the Court overturned the conviction of a rapist whose arrest followed the law and his confession was not coerced. Those adhering to the nationalization of the Bill of Rights on the court clearly had a vision, goal, and agenda.

Justice Black said that the “fair trial” approach undermined federalism since “A case by case basis and striking down laws they do not like”. He argued further that “Personal views of mortality and ethics into the concepts of due process rather than defining by the fixed boundaries of the written words of the constitution” was wrong. In fact, Black also said that following the Bill of Rights would diminish judicial abuse. Black clearly favored making a selective incorporation of the Bill of Rights applicable to the states. But it was Black who was wrong. First, the “fair trial” justices did not play politics. There were several cases (Gideon, Pointer, and Washington) where they coalesced with the Bill of Rights nationalists on the court because it was the right thing to do to grant a fair trial to an individual. Secondly, the fixed boundaries of the Bill of Rights never materialized. Due process has also been found to mean: if the defendant is convicted without evidence; perjury of testimony; or suppression of favorable evidence. Miranda v. Arizona, Reynolds v. Simms, and Griswold v. Connecticut provide substantive due process rights beyond the Bill of Rights and therefore, these cases contradicted Black’s incorporation theory of fixed boundaries. Thirdly, a vast majority of the cases in this writing the defendants were truly guilty. Thousands of guilty people were released from prison because the Warren Court overturned precedent in such short periods of time. And it is no surprise that crime rose sharply during the selective incorporation process of the Bill of Rights. The Warren Court protected the rights of criminals and not those of the innocent. He put the rights of the innocent at risk. In fact, the Griswold decision on “privacy” led to one of the worst decisions in Supreme Court history: Roe v. Wade. Privacy may protect the rights of women, but it does not protect the rights of the unborn. Reynolds v. Simms used the “equal protection” clause of the Fourteenth Amendment to protect the rights of urban citizens at the expense of rural citizens. In fact, the Court ruled that provisions of the Constitution used by the federal government are unconstitutional for the states such as the Senate and the Electoral College in its controversial “One person, one vote” decision in Reynolds v. Simms. Fourthly, the Warren Court was guilty of legislating from the bench passing not only criminal procedure laws, but social reform including substantive due process rulings that did not even have any deep roots in American history. The Warren Court was passing laws that Congress could not constitutionally pass.

One state legislator said “that the Tenth Amendment has been rapped twice a day for 10 years” by the Warren Court. Yearly conferences of the “State Chief Justices” usually resulted in overwhelming admonishment of the Supreme Court’s federal power grab under Warren.