Palko v. Connecticut, 302 U.S. 319; 58 S. Ct. 149; 82 L. Ed. 288 (1937)

Facts—Palka (the reporter spelled the name incorrectly) was indicted in Connecticut for murder in the first degree. A jury found him guilty of murder in the second degree and sentenced him to life imprisonment. The state appealed this verdict, and the Supreme Court of Errors for Connecticut ordered a new trial. The basis for this order was the discovery that there had been error of law to the prejudice of the state in the lower court. At the second trial additional evidence was admitted and additional instructions given to the jury. A verdict of first degree murder was returned and Palko was sentenced to death. He appealed the legality of this procedure under the due process clause of the Fourteenth Amendment, claiming double jeopardy.

Question—Does the new trial and subsequent sentence to death, deprive the appellant of due process under the Fourteenth Amendment?

Decision—No.

Reasons—J. Cardozo (8–1). Cardozo noted that previous cases had applied some provisions of the Bill of Rights to the states and refused to apply others calling for some sort of rationalizing principle. Cardozo concluded that the due process clause of the Fourteenth Amendment applied to the states only those provisions of the Bill of Rights (Amendments I to VIII) that are “of the very essence of a scheme of ordered liberty.” These provisions are those that involve principles of justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

The Court noted further that there could be no valid charge of double jeopardy and no deprivation of due process unless the first trial had been without error. Since there was error in the conduct of the first trial and the second trial was requested by the state to rectify the errors of the first trial, and to further the purposes of justice, there was no deprivation of due process involved.

J. Butler dissented without writing an opinion.

Note—Palko remains one of the clearest articulations of the principle of “selective incorporation,” the idea that the due process clause of the Fourteenth Amendment does not apply all the provisions of the Bill of Rights to the states but only those rights listed there that are most fundamental. While continuing to adhere to this general principle, over time the Court has recognized an increased number of such rights as so fundamental.