federally UNCONSTITUTIONAL state constitutional amendments

parados wrote:

Brandon - X=2
Deb - Provide a citation to authority that would substantiate your vague claim....

Brandon - How is that vague? I can't think of a more specific possible statement.

Your claim that one is trying to pull something by responding to what was actually said is absurd. Normal people respond to what is actually said to them, not what they saw in a vision that the person must have meant.

You have a tendency to zero in on one rather irrelevant portion of a post that you think contains an exploitable flaw, when you find yourself unable to address the general meaning that the poster was conveying. -

Your claim that one is trying to pull something by responding to what was actually said is absurd. Normal people respond to what is actually said to them, not what they saw in a vision that the person must have meant.

Debra --

As I understand it, the legal concern you raised in your initial post to this thread (as opposed to the moral concerns you also raised) is that the state constitutions' anti-gay-marriage amendments are bad because they are inconsistent with the federal constitution. Hypothetically, what if this inconsistency was resolved by adding an anti-gay-marriage amendment to the federal constitution? As a matter of jurisprudence, this fix should make you happy by restoring consistency. As a matter of ethics though, it should outrage you because gay people's liberty of association would be further constrained, and because the law would continue refusing to acknowledge gay relationships as equal to straight relationships.

On balance then, would this 'solution' make you happy or outrage you? I would have betted high odds that it would drive you up the wall! If that's true, this would be evidence in my opinion that your concerns are essentially about ethics, not law. This is fine with me. On that basis, I would even agree with most of what you say. I just wish you would call your concerns what they really are.

If the religious or moral right were successful in amending the constitution to make discrimination and oppression of a class of persons the supreme law of the land, of course I would be outraged. Wouldn't you be outraged to live in the land of hypocrisy rather than the land of liberty and equality?

Debra_Law wrote:

If the religious or moral right were successful in amending the constitution to make discrimination and oppression of a class of persons the supreme law of the land, of course I would be outraged. Wouldn't you be outraged to live in the land of hypocrisy rather than the land of liberty and equality?

I don't currently live in America, but if I did, yes of course I would! Believe it or not, we really pretty much agree about the ethics of the whole issue, and the only reason my intellectual knee-jerk reflexes cause me to haggle with your every post is because you present your moral position as if it was a legal opinion, and usually as if your conclusion was a legal no-brainer.

Which, I contend, is not the case, as judged by the facts that generations of distinguished Supreme Court judges have disagreed with your jurisprudence, that there still is a respectable minority who disagrees with it, and that these cases are even decided by the Supreme Court. As a rule, like Chrissee mentioned earlier the no-brainers of constitutional interpretation are not decided by the Supreme Court, but by some lowly district courts.

Strange as it may sound to you after all our arguing, this dressing up of your moral judgment, which a priori is as good as everyone else's on this forum, as an judgment about constitutional law, a field where people here respect you as an authority, is the only major issue I have with your posts about gay marriage.

fishin' wrote:

I find it somewhat comical that you claim that morals can't be used a as rationale for law yet at the same time the entire argument for repealing state laws that prohibit gay/lesbians from marrying are because treating gays/lesbians differently is immoral.

Fishin:

You created the "entire argument" that you claimed to be comical. That's a classic strawman argument. Try to talk you way out of it, but we know better.

Debra_Law wrote:

fishin' wrote:

I find it somewhat comical that you claim that morals can't be used a as rationale for law yet at the same time the entire argument for repealing state laws that prohibit gay/lesbians from marrying are because treating gays/lesbians differently is immoral.

Fishin:

You created the "entire argument" that you claimed to be comical. That's a classic strawman argument. Try to talk you way out of it, but we know better.

Yeah, ok Deb. Except that comment you quoted there wsn't even a part of the argument. lol

If the Supreme Court rules that the Fourteenth Amendment does not allow the governing majority to impose its moral disapproval of others in society through the operation of discriminatory state laws and I cite the case, quote the case, and substantiate my arguments based on the case, how does that give you cause for concern?

How does the fact that I am personally capable of experiencing outrage (like any other human being) suddenly change an argument based on legal precedent into an argument based on morals?

Debra_Law wrote:

fishin' wrote:

I find it somewhat comical that you claim that morals can't be used a as rationale for law yet at the same time the entire argument for repealing state laws that prohibit gay/lesbians from marrying are because treating gays/lesbians differently is immoral.

Fishin:

You created the "entire argument" that you claimed to be comical. That's a classic strawman argument. Try to talk you way out of it, but we know better.

Yeah, ok Deb. Except that comment you quoted there wsn't even a part of the argument. lol

You just keep dodging those questions and pretending like you haven't read them. Your doing so just makes it very clear to anyone that reads the thread that you know full well that you overstated "the issue" in your opening paragraph. Try to talk your way out of it but we know better.

All those moral majorities that raced to the polls to amend their state constitutions to ban same sex marriage ought to be ashamed of themselves. It doesn't matter if they make discriminatory, oppressive laws or amend their state constitutions to be discriminatory and oppressive. They may not impose their morals on others through the power of the state. Since they are not smart enough to figure that out, I guess the federal judiciary must do its duty.

Oh yeah. I'm sure the moral majority will scream "judicial activism." But the fact remains that the U.S. Constitution does NOT ALLOW them to impose their views on others unless they have a compelling reason for doing so -- a compelling reason unrelated to their moral disapproval. They cannot stop a federal court from performing its constitutional duty to strike down unconstitutional laws.

Debra_Law wrote:

If the Supreme Court rules that the Fourteenth Amendment does not allow the governing majority to impose its moral disapproval of others in society through the operation of discriminatory state laws and I cite the case, quote the case, and substantiate my arguments based on the case, how does that give you cause for concern?

Because the reason you believe in the right of people to marry partners of the same sex has nothing to do with the constitution.

It has to do with natural law as you understand it, and that is an ethical concept. If the constitution proscibed gay marriage, you would believe in the right to gay marriage no less. If the constitution made gay marriage mandatory and outlawed straight marriage, you would believe in the human right to straight marriage no less. What the constitution says, and how the Supreme Court interprets it, is merely a "nice to know" in terms of your belief in the right of gays to marry each other. It is irrelevant as a reason for the conclusion you reached about it, and my concern is that you obscure this irrelevance (without malicious intent I am sure) with the great emphasis you place on US constitutional reasoning.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

How does the fact that I am personally capable of experiencing outrage (like any other human being) suddenly change an argument based on legal precedent into an argument based on morals?

Because in this specific case, your outrage represents a moral datum: It shocks your conscience to imagine a US constitution that contains an anti-gay-marriage amendment, or that the Supreme Court interpreted the constitution narrowly for generations after the Fourteenth Amendment. It satisfies your moral sentiments that the Warren Court interpreted the constitution more broadly, and reached reasults you consider an improvement over the reconstruction and Lochner eras. That's what makes the thrust of your arguments a moral one ones. You will find it hard to argue that Earl Warren mastered the art and craft of constitutional interpretation better than, say, Oliver Wendell Holmes or Steven Field. The important difference between the three is in their moral persuasions, not their mastery of the law.

On reflection, maybe this is a cultural mismatch between us. As a citizen of a nation that has run through five fundamentally different constitutions over the last century, maybe I'm just much more cynical about the ethical force of constitutional reasoning. I certainly don't understand why the fact that the US constitution, as interpreted by the 2003 US Supreme Court, provides X, anyone should feel conscience-bound to support X. As someone who agrees with your conclusion, but does not believe that the US constitution has the slightest moral authority, I can't help but haggle with your reasoning. It probably annoys you, and I'm sorry about that, but I just can't help it.

My "beliefs" have everything to do with constitution. Our forefathers announced in the Declaration of Independence that ALL MEN ARE CREATED EQUAL and that we are endowed with inalienable rights and among those rights are LIFE, LIBERTY, and PURSUIT OF HAPPINESS.

But the Constitution does NOT proscribe gay marriage; it does not proscribe straight marriage; it does not proscribe marriage at all.

Shocks the Conscience? Thomas, that's a constitutional principal. Governmental action that is so brutal or so offensive to human dignity that it "shocks the conscience" violates the due process clause. See, e.g., CHAVEZ v. MARTINEZ

So sue me.

Debra_Law wrote:

My "beliefs" have everything to do with constitution. Our forefathers announced in the Declaration of Independence that ALL MEN ARE CREATED EQUAL and that we are endowed with inalienable rights and among those rights are LIFE, LIBERTY, and PURSUIT OF HAPPINESS.

Yes. And if I am correctly informed, they also considered gay sex a crime worthy of hanging. Your forefathers happened to agree with you on some things and disagree with you on others. But the fact that your forefathers thought that life, liberty and the pursuit of happiness were important is not the reason you believe the same. It is merely a coincidence.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law §1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes §203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

But the Constitution does NOT proscribe gay marriage; it does not proscribe straight marriage; it does not proscribe marriage at all.

I am haggling with your reasoning, which I think reaches the right conclusion from irrelevant premises. When you haggle with someone's reasoning, it is perfectly valid to ask: "How would your conclusions change if the premises were different?" That's what I'm doing. And in this context it is pointless to answer, "but the premises are not different", which is what you're doing. The answer is pointless because I'm not arguing with your conclusion, but with the reasoning through which you reach it. I'm not disagreeing with your contention that people have a human right to marry. For the sake of this argument, I'll even grant you that the constitution protects gay marriage. I am simply saying that this is a coincidence.

Shocks the Conscience? Thomas, that's a constitutional principal. Governmental action that is so brutal or so offensive to human dignity that it "shocks the conscience" violates the due process clause. See, e.g., CHAVEZ v. MARTINEZ

No. It is a moral test, applied by Martin Luther to other ethical problems long before the Supreme Court was even invented, and I'm sure by others too. The Supreme Court chose to apply this test in interpreting the constitution -- presumably because it wanted to reach a morally defensible judgment. (I have not read the opinion you cited yet, so I don't know which reason they stated for applying the test.) The constitution itself says nothing about "shocks the conscience".

So sue me.

I won't. The constitution forbids people to sue each other for disagreeing with each other. Independently of that, I also believe that would be immoral, which is the reason this is not my style.

Well, you are NOT correctly informed with respect to "gay sex."

Playing the "what if" game doesn't change my understanding of constitutional jurisprudence.

What if an meteor slammed into the earth and extinquishes all life? Would your reasons for believing in liberty and equality protected by the constitution change?

What if Bush declared himself king and refused to relinguish high office at the end of his presidential term? Would your reasons for believing in liberty and equality protected by the constitution change?

The Eighth Amendment prohibits cruel and unusual punishments. It doesn't list the punishments that are considered cruel and unusual. But it is reasonable that punishments that are both so cruel and so unusual that they shock our conscience would be unconstitutional.

The constitution does not forbid civil suits. People who disagree with each other commence civil suits all the time to resolve the disagreement. Technically, although you can sue me, your suit would be unsuccessful because you have no claim upon which relief can be granted.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

On one hand, you claim that the interpretation and application of constitution is based on morals, and on the other hand you claim there are other ways to interpret the constitution.

On one hand, you claim that hypotheticals (at least the irrelevant one that you posed) are relevant, but on the other hand, they are irrelevant.

Your statements are circular and contradictory.

You can put whatever moral twist you want on Supreme Court interpretations of the Constitution, but the Court's rulings are not moral rulings, they are legal rulings. It's the court's duty to define the liberty of all, not to impose a moral code.

I am claiming that recent Supreme Court majorities, beginning around the time Earl Warren took office, have chosen to interpret the constitution in a moralistic way, which is one way to reasonably do it. Earlier Supreme Court majorities haven't, and a minority of 2 1/2 judges (depending on whether you count Rehnquist) still doesn't. And I claim that's another way to reasonably do it.

We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption. These in their origin were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. . . .

This is true, for illustration, of freedom of thought and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action.

The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts. . . .

Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial. . . .The hearing, moreover, must be a real one, not a sham or a pretense. For that reason, ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel. The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.

Our survey of the cases serves, we think, to justify the statement that the dividing line between them, if not unfaltering throughout its course, has been true for the most part to a unifying principle. On which side of the line the case made out by the appellant has appropriate location must be the next inquiry and the final one. Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our policy will not endure it?

Does it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'? The answer surely must be 'no.' What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error.

This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge, has now been granted to the state. There is here no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

. . . Accordingly, in reviewing a State criminal conviction under a claim of right guaranteed by the Due Process Clause of the Fourteenth Amendment, from which is derived the most far-reaching and most frequent federal basis of challenging State criminal justice, "we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes."

. . .However, this Court too has its responsibility. Regard for the requirements of the Due Process Clause "inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses." Malinski v. New York, supra, at 416-417. These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 , or are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 .

. . . The vague contours of the Due Process Clause do not leave judges at large. 4 We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process. See Cardozo, [342 U.S. 165, 171] The Nature of the Judicial Process; The Growth of the Law; The Paradoxes of Legal Science. These are considerations deeply rooted in reason and in the compelling traditions of the legal profession. The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions.

Due process of law thus conceived is not to be derided as resort to a revival of "natural law." To believe that this judicial exercise of judgment could be avoided by freezing "due process of law" at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges, for whom the independence safeguarded by Article III of the Constitution was designed and who are presumably guided by established standards of judicial behavior. Even cybernetics has not yet made that haughty claim. To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one's own views are incontestable and alert tolerance toward views not shared. But these are precisely the presuppositions of our judicial process. They are precisely the qualities society has a right to expect from those entrusted with ultimate judicial power.

Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment. But that does not make due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case "due process of law" requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, see Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 , on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society.

Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents - this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. . . .

. . .We are not unmindful that hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions. But the Constitution is "intended to preserve practical and substantial rights, not to maintain theories." Davis v. Mills, 194 U.S. 451, 457 .

On the facts of this case the conviction of the petitioner has been obtained by methods that offend the Due Process Clause.

The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. . . .

On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. . . .

"The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted."

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant's jeopardy, and even when "not followed by any judgment, is a bar to a subsequent prosecution for the same offence." United States v. Ball, 163 U.S. 662, 671 . Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. . . .

The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. . . .

Headnote: The double jeopardy prohibition of the Fifth Amendment, a fundamental ideal in our constitutional heritage, is enforceable against the States through the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. 319, overruled. . . .

. . . In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319 . Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offence to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to "a hardship so acute and shocking that our polity will not endure it," id., at 328, did the Fourteenth Amendment apply.

The order for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e. g., Brock v. North Carolina, 344 U.S. 424 (1953).

Recently, however, this Court has "increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law." Washington v. Texas, 388 U.S. 14, 18 (1967). In an increasing number of cases, the Court "has rejected the notion that the Fourteenth Amendment applies to the States only a `watered-down, subjective version of the individual guarantees of the Bill of Rights . . . .'" Malloy v. Hogan, 378 U.S. 1, 10 -11 (1964).

Only last Term we found that the right to trial by jury in criminal cases was "fundamental to the American scheme of justice," Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 U.S. 455 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was "shocking to the universal sense of justice." Id., at 462. It [395 U.S. 784, 795] relied upon Twining v. New Jersey, 211 U.S. 78 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335 (1963); Twining, by Malloy v. Hogan, 378 U.S. 1 (1964).

Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of "fundamental fairness." Once it is decided that a particular Bill of Rights guarantee is "fundamental to the American scheme of justice," Duncan v. Louisiana, supra, at 149, the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable.

The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation's independence. . . .As this Court put it in Green v. United States, 355 U.S. 184, 187 -188 (1957), "[t]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly "fundamental to the American scheme of justice." The validity of petitioner's larceny conviction must be judged, not by the watered-down standard enunciated in Palko, but under this Court's interpretations of the Fifth Amendment double jeopardy provision.

JUSTICE SOUTER delivered the opinion of the Court.

The issue in this case is whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. We answer no, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation. . . .

Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action. . . .

Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense," Collins v. Harker Heights, 503 U.S., at 129 , thereby recognizing the point made in different circumstances by Chief Justice Marshall, " 'that it is a constitution we are expounding,' " Daniels v. Williams , supra , at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials " 'from abusing [their] power, or employing it as an instrument of oppression.' " 503 U.S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 196 (quoting Davidson v. Cannon , 474 U.S., at 348 )).

To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect's stomach enough to offend due process as conduct "that shocks the conscience" and violates the "decencies of civilized conduct." In the intervening years we have repeatedly adhered to Rochin 's benchmark. See, e.g. , Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (reiterating that conduct that " 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency" would violate substantive due process); Whitley v. Albers, 475 U.S. 312, 327 (1986) (same); United States v. Salerno, 481 U.S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' . . . or interferes with rights 'implicit in the concept of ordered liberty' ") (quoting Rochin v. California , supra , at 172, and Palko v. Connecticut , 302 U.S. 319, 325 -326 (1937)). Most recently, in Collins v. Harker Heights, supra , at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, "poin[t] the way." Johnson v. Glick , 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973). 8 It should not be surprising that the constitutional concept of conscience-shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. Thus, we have made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, 424 U.S. 693, 701 (1976), for example, we explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, 474 U.S., at 332 , we reaffirmed the point that "[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See Daniels v. Williams, supra , at 328; see also Davidson v. Cannon, 474 U.S. 344, 348 (1986) (clarifying that Daniels applies to substantive, as well as procedural, due process). It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams , 474 U.S., at 331 ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property") (emphasis in original). Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or 'gross negligence,' " id. , at 334, n. 3, is a matter for closer calls. . . .

Footnotes:

. . .

8 As JUSTICE SCALIA has explained before, he fails to see "the usefulness of 'conscience shocking' as a legal test," Herrera v. Collins, 506 U.S. 390, 428 (1993), and his independent analysis of this case is therefore understandable. He is, however, simply mistaken in seeing our insistence on the shocks-the-conscience standard as an atavistic return to a scheme of due process analysis rejected by the Court in Washington v. Glucksberg S. ___ (1997). Glucksberg presented a disagreement about the significance of historical examples of protected liberty in determining whether a given statute could be judged to contravene the Fourteenth Amendment. The differences of opinion turned on the issues of how much history indicating recognition of the asserted right, viewed at what level of specificity, is necessary to support the finding of a substantive due process right entitled to prevail over state legislation. As we explain in the text, a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a liberty interest of the sort claimed. For executive action challenges raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law. Thus, in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways. In none of our prior cases have we considered the necessity for such examples, and no such question is raised in this case. In sum, the difference of opinion in Glucksberg was about the need for historical examples of recognition of the claimed liberty protection at some appropriate level of specificity. In an executive action case, no such issue can arise if the conduct does not reach the degree of the egregious.

9 In Rochin v. California , 342 U.S. 165 (1952), the case in which we formulated and first applied the shocks-the-conscience test, it was not the ultimate purpose of the government actors to harm the plaintiff, but they apparently acted with full appreciation of what the Court described as the brutality of their acts. Rochin , of course, was decided long before Graham v. Connor (and Mapp v. Ohio, 367 U.S. 643 (1961)), and today would be treated under the Fourth Amendment, albeit with the same result.

CHIEF JUSTICE REHNQUIST , concurring.

I join the opinion of the Court in this case. The first question presented in the County's petition for certiorari is:


"Whether, in a police pursuit case, the legal standard of conduct necessary to establish a violation of substantive due process under the Fourteenth Amendment is 'shocks the conscience'...or 'deliberate indifference' or 'reckless disregard.' "

Pet. for Cert. i.
The County's petition assumed that the constitutional question was one of substantive due process, and the parties briefed the question on that assumption. The assumption was surely not without foundation in our case law, as the Court makes clear. Ante , at 12-13. The Court is correct in concluding that "shocks the conscience" is the right choice among the alternatives posed in the question presented, and correct in concluding that this demanding standard has not been met here.

JUSTICE KENNEDY , with whom JUSTICE O'CONNOR joins, concurring.

I join the opinion of the Court, and write this explanation of the objective character of our substantive due process analysis.

. . .

The Court decides this case by applying the "shocks the conscience" test first recognized in Rochin v. California, 342 U.S. 165, 172 -173 (1952), and reiterated in subsequent decisions. The phrase has the unfortunate connotation of a standard laden with subjective assessments. In that respect, it must be viewed with considerable skepticism. As our opinion in Collins v. Harker Heights illustrates, however, the test can be used to mark the beginning point in asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning. 503 U.S., at 126 -128. As JUSTICE SCALIA is correct to point out, we so interpreted the test in Glucksberg. Post, at 1-2. In the instant case, the authorities cited by JUSTICE SCALIA are persuasive, indicating that we would contradict our traditions were we to sustain the claims of the respondents. . . .

Though I share JUSTICE SCALIA 's concerns about using the phrase "shocks the conscience" in a manner suggesting that it is a self-defining test, the reasons the Court gives in support of its judgment go far toward establishing that objective considerations, including history and precedent, are the controlling principle, regardless of whether the State's action is legislative or executive in character. To decide this case, we need not attempt a comprehensive definition of the level of causal participation which renders a State or its officers liable for violating the substantive commands of the Fourteenth Amendment. It suffices to conclude that neither our legal traditions nor the present needs of law enforcement justify finding a due process violation when unintended injuries occur after the police pursue a suspect who disobeys their lawful order to stop.

JUSTICE SCALIA , with whom JUSTICE THOMAS joins, concurring in the judgment.

Today's opinion gives the lie to those cynics who claim that changes in this Court's jurisprudence are attributable to changes in the Court's membership. It proves that the changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim, "That was then, this is now."

Just last Term, in Washington v. Glucksberg , 521 U. S. ___ , ___ (1997) (slip op., at 15-19), the Court specifically rejected the method of substantive-due-process analysis employed by JUSTICE SOUTER in his concurrence in that case, which is the very same method employed by JUSTICE SOUTER in his opinion for the Court today.

Debra:
The notion that the constitution means what the Supreme Court says it means is far from being “provocative”. It’s just plain stupid, at least to a freedom loving people who intended to bind the hands of government by the chains of a written constitution! The truth is, the Constitution means what its framers and ratifiers intended it to mean!

I don't always agree with the U.S. Supreme Court. But I'm NOT stupid. I understand that the Supreme Court interprets and applies the Constitution to cases and controversies. Whatever construction the Supreme Court gives to any particular clause in the Constitution, whether it is based on the federalist papers or the founders intent or our fundamental notions of ordered liberty, that construction becomes the SUPREME LAW of the LAND.

You and I may disagree with decisions from time to time based on our own reasons, but we cannot overrule a Supreme Court precedent that is based on the Constitution without amending the Constitution itself.

Additionally, the Constitution was not written in words that were frozen in time. As we progress as a society, we learn that laws that we once thought were necessary and proper only serve to oppress. Our country was built on the concept of LIBERTY (give me liberty or give me death). With each generation, we must fight to give that concept meaning. It isn't always prudent to go back 200 years and consult those who are rotting away in their graves--those who thought it was an acceptable compromise to count blacks and 3/5th of a person. That type of oppressive and discriminatory treatment would not be tolerated today. The United States Constitution is intended to benefit the LIVING in every generation.

Mr. Krauthammer, in a recent syndicated column dealing with reparations, has suggested that the "American people owe a special debt to black Americans"; that a "$50,000 per family of four" payment be made to each black American family because of "centuries of state-sponsored slavery followed by a century of state-sponsored discrimination". Mr. Krauthammer goes on to imply that if such payment is made " n one grand gesture, an acknowledgement is made not of collective guilt but of collective responsibility."

But is there a collective responsibility which the American people and the government of the United States ought to share because of the institution of slavery? The truth is, the injustice of slavery was not an injustice inflicted or perpetrated by the government of the United States. Quite the contrary! Upon the creation of the United States government, as witnessed by Article 1, Sec. 2, Clause 3, of the Constitution of the United States, an aversion to slavery was expressed by a specific penalty imposed upon those states having state sponsored slavery. Unfortunately, the constitutional penalty for state-sponsored slavery has been distorted and mischaracterized over the years by the enemies of our Republic, who claim the provision "made blacks three-fifths of a person.". But a review of the actual words of Article 1, Sec. 2, clause 3, reveals slave holding states were penalized by this provision which denied them full representation in Congress in proportion to their actual population size---the population of slaves not being fully counted when apportioning representatives among the states, which diminished the voting strength of slave holding states in Congress Assembled!

In addition, Mr. Krauthammer, in his quest to promote a fraudulent "collective responsibility" upon the American working people, fails to acknowledge that after the Revolutionary War and the working people of America gained their independence from foreign domination [the real culprit of slavery on American soil] the people within a number of the states, exercising their newly found freedom, quickly moved to share the blessings of liberty to all by abolishing slavery! For example, the people of Vermont took this immediate action in its 1777 declaration of rights, which declared "no...person born in this country, or brought here over sea, ought to be holden by law to serve any person as a servant, slave, or apprentice". Likewise, the Massachusetts constitution of 1780 declared that "all men are born free and equal" and was used by the court a few years after its adoption to legally forbid any person to be held as a slave. And, in 1787, the Northwest Ordinance stated "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." By the year 1788 all the states north of Maryland , except New York and New Jersey, had legislated to extinguish slavery, and by 1804 the remaining two northern states [ N.Y. and N.J.] had put slavery to rest.

Mr. Krauthammer's suggestion that there is a "collective responsibility" for the institutional of slavery which the American people ought to collectively address from the United States Treasury simply is not based upon historical fact, and defames those states, and the descendants of the People therein, who, from the beginning of American's independence, took immediate action to abolish slavery and share the blessings of liberty with black Americans. Instead of identifying the actual perpetrators of slavery, and the foreign powers under which they were acting, Mr. Krauthammer falsely points a finger at those who lived and worked under their rule, and were subject to their oppressive power until rising in rebellion to end such oppression.

It is quite obvious, that Mr. Krauthammer, who has charged David Horowitz as being a "former bomb-thrower", is likewise a "bomb-thrower", but rewarded by the Washington Post, St. Petersburg Times, and other news establishments around the country who give credence to his deceptive and inflammatory racial propaganda which portrays early America and its working class people as an evil monolith, the descendants of whom should now, according to these merchants of propaganda, accept "collective responsibility" for slavery.

Mr. Krauthammer also asserts in his article that "... as Americans who benefit from the fruits of America's past, we have an obligation to pay some of its debts." Is Mr. Krauthammer suggesting by this, that it is time for the descendants of African Americans who were subject to state sponsored slavery in the south, to now "... pay some of its debts" to the descendants of northern white and black families who lost their sons in the fight to end southern state sponsored slavery?

In ending his column, Mr. Krauthammer defies anyone to present a deal which "more cleanly--and fairly--cuts the Gordian knot." Perhaps he is confident the truth of the issue will be silenced, leaving the enemies of our Republic free to continue in their divisiveness, and profit off the ashes of slavery!

John William Kurowski

American Constitutional Research Service

(Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.)

Thomas, your arguments are without merit.