Adamson v. California

332 U.S. 46

Case Year: 1947

Case Ruling: 5-4, Affirmed

Opinion Justice: Reed

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):


1st Concurring Opinion

Author: Frankfurter


1st Dissenting Opinion

Author: Black

Joiner(s): Murphy

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


After Palko v. Connecticut (1937) Supreme Court justices continued to advocate different solutions to the long-standing problem of incorporating the Bill of Rights between the federal government and the states. Most remained loyal to the selective incorporation doctrine, as is well illustrated by Justice Reed's majority opinion in Adamson, an appeal asking the Court to apply the Fifth Amendment's Self-Incrimination Clause to the states.

Other justices felt differently. Some proposed a more restrictive version of incorporation, while others preferred a more expansive perspective. The latter approach was argued in Adamson by justices such as Frank Murphy, Hugo Black, and William Douglas. They supported, as did the first John Marshall Harlan, complete incorporation of the Bill of Rights.



...Appellant secondly contends that... the privilege against self- incrimination... inherets in the right to a fair trial. A right to a fair trial is a right admittedly protected by the due process clause of the Fourteenth Amendment. Therefore, appellant argues, the due process clause of the Fourteenth Amendment protects his privilege against self-in crimination. The due process clause of the Fourteenth Amendment, however, does not draw all the rights of the federal Bill of Rights under its protection. That contention was made and rejected in Palko v. Connecticut. It was rejected with citation of the cases excluding several of the rights, protected by the Bill of Rights, against infringement by the National Government. Nothing has been called to our attention that either the framers of the Fourteenth Amendment or the states that adopted intended its due process clause to draw within its scope the earlier amendments to the Constitution. Palko held that such provisions of the Bill of Rights as were 'implicit in the concept of ordered liberty,'... became secure from state interference by the clause. But it held nothing more.

Specifically, the due process clause does not protect, by virtue of its mere existence the accused's freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. Twining v. New Jersey; Palko v. Connecticut.... For a state to require testimony from an accused is not necessarily a breach of a state's obligation to give a fair trial....

We find no other error that gives ground for our intervention in California's administration of criminal justice.



Less than 10 years ago, Mr. Justice Cardozo announced as settled constitutional law that while the Fifth Amendment, 'which is not directed to the States, but solely to the federal government,' provides that no person shall be compelled in any criminal case to be a witness against himself, the process of law assured by the Fourteenth Amendment does not require such immunity from self-crimination: 'in prosecutions by a state, the exemption will fail if the state elects to end it.' Palko v. Connecticut, 302 U.S. 319, 322, 324, 150, 151. Mr. Justice Cardozo spoke for the Court, consisting of Mr. Chief Justice Hughes, and McReynolds, Brandeis, Sutherland, Stone, Roberts, Black, JJ. (Mr. Justice Butler dissented.) The matter no longer called for discussion; a reference to Twining v. New Jersey, 211 U.S. 78, decided 30 years before the Palko case, sufficed.

Decisions of this Court do not have equal intrinsic authority. The Twining case shows the judicial process at its best-comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After enjoying unquestioned prestige for 40 years, the Twining case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars. As the surest way of keeping the Twining case intact, I would affirm this case on its authority....


... This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, that this Court is endowed by the Constitution with boundless power under 'natural law' periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes 'civilized decency' and 'fundamental principles of liberty and justice.' Invoking this Twining rule, the Court concludes that although comment upon testimony in a federal court would violate the Fifth Amendment, identical comment in a state court does not violate today's fashion in civilized decency and fundamentals and is therefore not prohibited by the Federal Constitution as amended.

The Twining case was the first, as it is the only decision of this Court, which has squarely held that states were free, notwithstanding to Fifth and Fourteenth Amendments, to extort evidence from one accused of crime. I agree that ifTwining be reaffirmed, the result reached might appropriately follow. But I would not reaffirm the Twining decision. I think that decision and the 'natural law' theory of the Constitution upon which it relies, degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise. Furthermore, the Twining decision rested on previous cases and broad hypotheses which have been undercut by intervening decisions of this Court.... My reasons for believing that the Twining decision should not be revitalized can best be understood by reference to the constitutional, judicial, and general history that preceded and followed the case....

My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.

In construing other constitutional provisions, this Court has almost uniformly followed the precept of Ex parte Bain that 'It is never to be forgotten that in the construction of the language of the Constitution, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.'...

Investigation of the cases relied upon in Twining v. New Jersey to support the conclusion there reached that neither the Fifth Amendment's prohibition of compelled testimony, nor any of the Bill of Rights, applies to the States, reveals an unexplained departure from this salutary practice. Neither the briefs nor opinions in any of these cases, except Maxwell v. Dow make reference to the legislative and contemporary history for the purpose of demonstrating that those who conceived, shaped, and brought about the adoption of the Fourteenth Amendment intended it to nullify this Court's decision in Barron v. Baltimore, and thereby to make the Bill of Rights applicable to the States...

In the Twining case itself, the Court was cited to a then recent book, Guthrie, Fourteenth Amendment to the Constitution(1898). A few pages of that work recited some of the legislative background of the Amendment, emphasizing the speech of Senator Howard. But Guthrie did not emphasize the speeches of Congressman Bingham, nor the part he played in the framing and adoption of the first section of the Fourteenth Amendment. Yet Congressman Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment. In the Twining opinion the Court explicitly declined to give weight to the historical demonstration that the first section of the Amendment was intended to apply to the states the several protections of the Bill of Rights. It held that that question was 'no longer open' because of previous decisions of this Court which, however, had not appraised the historical evidence on that subject.... The Court admitted that its action had resulted in giving 'much less effect to the 14th Amendment than some of the public men active in framing it' had intended it to have.... With particular reference to the guarantee against compelled testimony, the Court stated that 'Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.'... Thus the Court declined and again today declines, to appraise the relevant historical evidence of the intended scope of the first section of the Amendment. Instead it relied upon previous cases, none of which had analyzed the evidence showing that one purpose of those who framed, advocated, and adopted the Amendment had been to make the Bill of Rights applicable to the States. None of the cases relied upon by the Court today made such an analysis....

For this reason, I am attaching to this dissent, an appendix which contains a resume, by no means complete, of the Amendment's history. In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights. Whether this Court ever will, or whether it now should, in the light of past decisions, give full effect to what the Amendment was intended to accomplish is not necessarily essential to a decision here. However that may be, our prior decisions, including Twining, do not prevent our carrying out that purpose, at least to the extent of making applicable to the states, not a mere part, as the Court has, but the full protection of the Fifth Amendment's provision against compelling evidence from an accused to convict him of crime....



...[The] Fifth Amendment is explicit in its provision that no person shall be compelled in any criminal case to be a witness against himself. That provision, as MR. JUSTICE BLACK demonstrates, is a constituent part of the Fourteenth Amendment....

We are obliged to give effect to the principle of freedom from self- incrimination.... Accordingly, I would reverse the judgment below.