text:
The impact of the Slaughterhouse Cases, however, was to be short-lived. Not long after this landmark decision, the Court began a process of gradually expanding the meaning of the due process clause to give it the effect of ultimately making nearly all of the provisions of the Bill of Rights applicable to the states. Without overruling the Slaughterhouse interpretation of the privileges and immunities clause, the Court, over a long period of time, essentially accomplished by the due process clause what counsel in Slaughterhouse had attempted via the privileges and immunities clause but had failed to do. This did require, however, a rejection of the Slaughterhouse interpretation of due process.
Beginning in the late 19th century, the Supreme Court began to abandon the notion that due process had a “precise technical import”64 and chose, rather, to view the term as a vague, indefinable generality. Conveniently enough, the Court welcomed this interpretive change of heart as an opportunity to impose upon the phrase its own philosophical predilections through the “gradual process of judicial inclusion and exclusion.”65 This radical alteration of the meaning of the due process clause advanced along “substantive” and “procedural” lines.
Recall that in Dred Scott the Court had ruled that the term “due process” referred not only to judicial procedure, but also to general legislation passed by the Congress. Rejecting this view, the Slaughterhouse Court chose to adhere to the historical, more narrow interpretation of due process laid out in Murray’s Lessee and explicitly overrule the “substantive” due process interpretation of Dred Scott. What the Supreme Court of the late 19th century did, however, was resurrect the old Dred Scott interpretation of due process and tacitly reject Murray’s Lessee.
Moreover, in addition to transforming “due process” to now include general legislation, the Court also began to redefine the word “liberty” found in the due process clause. Rejecting the historical definition of liberty, which was limited strictly to freedom from physical restraint,66 the Court radically expanded this phrase to now include such “substantive” economic rights as the freedom to engage in contractual relationships.
By following this rule, the Supreme Court had determined in several cases that fundamental due process requires “that the party to be affected shall have notice and an opportunity to be heard.”68 Not long after these decisions, however, the Court began to supersede this basic standard by gradually including under due process many more procedures beyond these two essential requirements.
This expansion of both the substantive and procedural aspects of the due process clause saw its ultimate judicial justification in the case of Palko v. Connecticut. Since it is this case that is cited as the philosophical foundation for the “selective incorporation” of the Bill of Rights, let us turn to an examination of what rules of interpretation the Court followed to decide that case.
In Palko the Court was asked to overrule a “double-jeopardy” conviction because it violated the 5th Amendment of the federal Constitution. Although convicted in a state court, the defendant argued that the due process clause of the 14th Amendment made the federal Bill of rights applicable to the states in all its particulars. Relying on numerous precedents, the Court rejected this argument, stressing that “there is no such general rule.”69 The Court at this point could have ceased discussion of this issue and gone on to answer the secondary question of whether the conviction violated the privileges and immunities clause. Instead, the Court proceeded to offer, by way of dicta, its understanding of the meaning of the due process clause.
Justice Cardozo, writing for the majority, began his analysis of this clause by offering a “rationalizing principle” as to why certain provisions in the federal Bill of Rights are protected against state encroachment and why others are not. His answer was that the “immunities” of “particular amendments” are protected because they are “implicit in the concept of ordered liberty,” and thus made valid against the states by the 14th Amendment.
Now, as a preliminary observation, it should be noted that this privately conceived phrase “ordered liberty” exists nowhere in the Constitution. This fact of itself indicates that Justice Cardozo must have been working with a standard of interpretation different from the one followed by Justices Marshall and Story. Indeed, Cardozo’s statement demonstrates that he has completely disregarded one of the foremost rules of traditional constitutional interpretation. It is not the text of the Constitution that the Court has applied in this instance. Rather, the language of the due process clause has been discarded and replaced with some new concept of the judge’s own creation.
Moreover, the connection Cardozo made between his “concept of ordered liberty” and the “14th Amendment” was tenuous at best. Unlike the careful phrase by phrase analysis adhered to in Slaughterhouse, the Court here has asserted that certain rights have been made valid against the states by the 14th Amendment generally. There is no precise reference made to any particular provision, whether a certain word, phrase or clause. Justice Cardozo did not even specify which section is supposed to make these “immunities” valid against the states. Presumably, he was referring to the due process clause of section one. However, the degree of precision that Justice Cardozo was willing to apply in this case falls far short of the rigorous requirements of traditional constitutional interpretation.
What the Court has demonstrated here is not only did it care to make no inquiry into the historical meaning of due process as it was understood since Magna Carta, but neither did it consider itself obligated to make a contextual comparison of the due process clause of the 14th Amendment with the similar one found in the 5th Amendment. Nor did the Court bother to determine what was the contemporary interpretation given to the phrase by the 39th Congress or the state ratifying conventions. The “original understanding” of the phrase at the time of its adoption had no apparent relevance in the Palko Court’s analysis.
The Court further demonstrated little concern for the plain language of the Constitution by labeling the legal procedures that are to be protected by the due process clause from state encroachment as “privileges and immunities.”73 The Slaughterhouse Court had made it clear that the rights guaranteed by the due process clause were by no means synonymous with those protected by the privileges and immunities clause. The Palko Court even acknowledged this itself when it properly addressed the privileges and immunities clause later as a separate argument. The reason for the blurring of this distinction by the Court must be attributed to its abandonment of the traditional rules’ requirement that the text of the Constitution must be treated carefully.
The Court again demonstrated a careless handling of the language of the due process clause when it emphasized that its process of including particular procedures and excluding others was not arbitrary or casual, but was “dictated by a study of the meaning of liberty itself.”74 Yet, at this point in the analysis, the Court’s understanding of the word liberty, which we will presently consider, was irrelevant. The question was not whether the procedures that the Court had chosen to protect are subcategories of “liberty.” The question is whether such procedures are “due process.” In other words, liberty is not due process; due process is not liberty. Rather than making this crucial distinction, however, the Court has confused the various terms within the due process clause as one conglomerated mass. This is evident from a later statement: “Fundamental too in the concept of due process and so in that of liberty. ..”75 Such careless analysis would be unacceptable under the traditional rules of interpretation.
Secondly, the Court has failed to take into consideration the historical circumstances which led to the adoption of the 14th Amendment and the original purpose for which it was ratified. By doing so, the Palko Court has revived the “substantive” interpretation of due process which had been defeated with Dred Scott, slavery and the Confederacy.
However, with no apparent concern for the history and purpose behind the due process clause, the Palko Court in cavalier fashion rejected the precedent of Magna Carta, Murray’s Lessee, and Slaughterhouse and embraced the very same substantive interpretation that led to the Civil War. We shall see that just as the Dred Scott decision led to destructive results, so too has Palko v. Connecticut.
The Palko Courts’ third deviation from the traditional rules of interpretation was its failure to honor the federal system that provides the framework for the Constitution. This failure is evidenced by the Courts’ adoption of the so-called “process of absorption.” As Justice Cardozo rightly pointed out, the Bill of Rights had always been effective only against the federal government. This was emphatically declared in Barron v. Baltimore and later re-emphasized by Slaughterhouse. But the Palko Court has here decided that if the process of absorption has taken place (which Cardozo apparently was not certain had occurred) then the “earlier” amendments of the Bill of Rights have been made applicable to the states.
The traditional rules of interpretation require that if a provision of the Constitution is to be construed so as to “bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States”78 and thereby “radically alter” the federal system, it must say so in clear and unambiguous language. Following the requirements of this test, the Slaughterhouse Court had failed to find within the 14th Amendment any language lucid enough to effect such a fundamental change. Therefore, Slaughterhouse declared, neither the Congress nor the people of the states could have intended such a purpose.
Of course, this is a dizzying example of circular reasoning — liberty must be protected because it will perish if it is sacrificed. However, this does not explain how the due process clause justifies the destruction of the federal system.
Yet, without providing any clarification on this point, Justice Cardozo quickly jumps to the example of free speech. Of course, examples cannot define; they can only illustrate a given definition. But it is obvious that Cardozo is trying to cloak what he views as “the matrix … of nearly every other form of freedom”79 in the garb of special Constitutional protection.
It is in these statements that Cardozo most candidly revealed the rules of construction that he followed to analyze the due process clause of the 14th Amendment: through the evolutionary process of judicial reinterpretation, the historical understanding of the due process clause has been abandoned and redefined according to the conscience of the judges and the changing values of society.
Clearly, this theory of constitutional interpretation is a radical departure from the traditional rules followed throughout our nation’s early history. And the consequences of this theory have been not only radical but profound. Although the Palko majority probably did not expect this to happen, the Supreme Court of the 1960’s used this opinion as a limitless warrant to selectively incorporate all but a few of the many provisions of the Bill of Rights, and to make even the most technical criminal procedures found therein to be applicable to the states. In effect, the Court has become, as the Slaughterhouse majority feared, “a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . .”83 Predictably, the impact upon the states is that they have been stripped of much of the power historically exercised by them to protect the health, safety and morals of their citizens; that power which antedated and was left intact by the Constitution.
Ironically, it was Justice Black, one of the members of the Palko majority, who was to become the most vigorous opponent of the “natural law” jurisprudence as applied in that case. At the same time, however, he also emerged to become the Court’s leading proponent of the idea that the Bill of Rights were now applicable to the states via the 14th Amendment. Yet Justice Black took a different approach to this theory than did the Palko opinion. He came to reject the “selective” process of absorbing certain “fundamental” rights into the 14th Amendment, subject to the judge’s own conscience and sense of justice. Instead, Justice Black began to assert a theory of ‘wholesale” incorporation according to which the 14th Amendment makes every specific provision of the first eight amendments applicable to the states in their entirety. This theory of Justice Black’s was most fully explained in his dissent in the case of Adamson v. California. Let us turn, then, to this opinion to determine what rules of Constitutional interpretation Justice Black followed to reach this conclusion.
In the Adamson case, the defendant was challenging a California statute that allowed for self-incrimination in that state’s court proceedings, on the grounds that it violated the privileges and immunities and due process clauses of the 14th Amendment. The Court rejected both of these arguments, relying on the Slaughterhouse precedent to answer the first challenge. The Court answered the due process argument, interestingly enough, by stating that the framers of the 14th Amendment had not intended for that clause to make the Bill of Rights valid against the states.
Justice Black began his dissenting opinion by attacking the “natural law” theory spelled out in Twining v. New Jersey,84 which Black claimed was the theory being applied by the Adamson majority. However, Justice Black took it upon himself to attack the Twining decision not only because it was founded on a “natural law” philosophy, but because it had strongly denounced the “wholesale” theory of incorporation now being forwarded by Black’s dissent.
Now, to his credit, Mr. Black did indicate by this statement that he sought to honor the two fundamental rules of Constitutional construction, namely, honoring the text and the original intent. Yet, on closer analysis it will become evident that Justice Black has not completely followed the Marshall/Story rules of interpretation, but has overemphasized some and ignored others.
The result, then, of this less than total adherence to all of the rules of interpretation, is an unconstitutional theory which, when tested by both a legal and historical analysis, fails to find any support in either the language or the intended purpose of the 14th Amendment.
The extensive appendix, attached to Justice Black’s dissent, which he claimed “conclusively demonstrates” his case for wholesale incorporation, evinces an ostensible concern for honoring the original meaning of section one by inquiring as to how it was understood at the time of its adoption. To the extent that Justice Black genuinely followed this stated objective he should be commended. Unfortunately, however, Justice Black’s thesis as presented in his resume suffers from two major flaws.
First, because Justice Black failed to give foremost consideration to the plain language of the Constitution, he has adopted an interpretation of section one that is not justified by either of its provisions. Apparently aware of this fact himself, Justice Black then resorted to an unacceptable method of construction which does not analyze the four clauses of section one separately and individually, as properly should be done, but which attempts to justify a theory of incorporation based on an analysis of section one “taken as a whole.” Moreover, by doing so, Justice Black destroyed his entire argument, since the only two individuals that Justice Black cited as expressing any intention of incorporating the Bill of Rights based their arguments not on section one “as a whole,” but specifically on the privileges and immunities clause.
Secondly, Justice Black’s historical argument, as presented in his appendix, is very weak indeed. As mentioned above, Black was able to find only two members of the 39th Congress who expressed any intention of incorporating the Bill of Rights, and the one gentleman who Black relied on as his star witness proves to be very confused and fuzzy in his understanding of the entire question.
As we begin our examination of Black’s interpretation of the 14th Amendment, and of his case for incorporation, the first point to notice is that Black referred to section one “separately and as a whole” as the means by which the Bill of rights were to be made applicable to the states. The first question to be asked of Justice Black is whether he really believed the equal protection clause, for example, could stand on its own as the grounds for overruling Barron v. Baltimore? Mr. Black faltered on this point, however, when he stated in the following paragraph that section one “taken as a whole” is the means by which the incorporation process is to take place. Here he has left off referring to the provisions of section one “separately,” and apparently has conceded the point.
By saying, however, that the language of section one should be “taken as a whole,” Mr. Black betrayed the fact that he did not consider the text of the Constitution to be of primary importance when interpreting it. Rather than separately analyzing the meaning of each of these provisions, which have very different meanings indeed, Mr. Black engaged in some sort of abstract Constitutional mathematics in order to achieve the desired sum total. Such a careless approach is unacceptable for the purposes of Constitutional construction, especially coming from someone who himself claimed to put great trust in the language of the instrument.
Moreover, not only was Justice Black’s interpretation of section one “taken as a whole” wrong in principle, but his statement that such was the expressed purpose of those who favored and opposed the amendment is also wrong in fact. The truth of the matter is that Black’s appended history of the 14th Amendment indicates, at most, that if section one was understood to make the Bill of Rights applicable to the states, this was to be done by the privileges and immunities clause. The only two sources quoted by Justice Black which indicate some intent on the part of those who adopted the 14th Amendment to incorporate the Bill of Rights are the statements of two Congressmen who helped draft section one. Yet the remarks of Senator Jacob Howard and Representative John Bingham, aside from any question of their reliability, clearly indicate that they understood amendments I through VIII to be made applicable to the states solely by the privileges and immunities clause. Their analysis of the citizenship, due process and equal protection clauses were offered independent of any discussion of either the privileges and immunities clause or the incorporation of the Bill of Rights.
As we have already seen, however, the Slaughterhouse Cases eviscerated this argument on the grounds that such an interpretation of the privileges and immunities clause was not justified by its language. And the Slaughterhouse interpretation of that clause has not been overruled. Evidently aware of that fact, and realizing the insufficiency of the other two clauses in section one to accomplish such a purpose on their own, Justice Black relied on combining them all together in hopes of achieving the same end.
In response to this accusation, Justice Black stated: “I can only say that the (privileges and immunities clause) seems to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.”90 By saying this, of course, Justice Black moved closer to the views of those two Congressmen he cited in support of his “original intent” argument. But this statement also runs into the obvious problem of the Slaughterhouse reading of the privileges and immunities clause. Clearly aware of that problem himself, Justice Black responded in two ways.
First, he decided to attack indirectly the Slaughterhouse decision by suggesting that any reading of the privileges and immunities clause that excludes the protection of the Bill of Rights “renders the words of this section of the 14th Amendment meaningless.” Of course, Slaughterhouse had read the privileges and immunities clause exclusive of the guarantees of the Bill of Rights, but it had already deflated Black’s argument that such an interpretation would render the clause meaningless. The Slaughterhouse majority had done so by enumerating some of the rights protected by the new privileges and immunities clause which are national in character. Since this ruling was still good precedent, Justice Black’s statement reveals that he was either ignorant of that opinion, or he was calling for its overturn.
This approach, of course, still suffers from the same criticisms mentioned above: 1) it does not comport with the views of Howard and Bingham; 2) it fails to point to any “plain and intelligible language” expressly declaring a purpose to incorporate the Bill of Rights; and 3) it is an unacceptable method of interpretation which does not give primary consideration to the text of the Constitution.
Although Justice Black assured us that the Constitution will survive if its purposes are “conscientiously interpreted,” he himself did not seem willing to be so conscientious when its language did not support his own theory. He was quite eager to search for some “conjectured intent” in the records of Congress, but if the justice truly desired to be faithful to the Constitution, he would not adopt such a view if it was not justified by the text of the instrument.
In addition to the fact that Justice Black’s theory of wholesale incorporation was based partly on a faulty interpretation of the 14th Amendment, his argument that the intent of the framers of that Amendment was to make the Bill of Rights applicable to the states lacks total historicity. In short, when Justice Black’s “evidence” is tested against the weight of the full historical record, it becomes apparent that he either neglected to consider a whole mountain of essential material which refutes his theory, or he inexcusably chose to dismiss the opposing material he found by unjustly weighing the evidence in his favor. To demonstrate this requires an investigation not only of the speeches made during the 39th Congress’ debate over the 14th Amendment, but also public speeches, state ratification debates, and contemporary state and federal court opinions.
Justice Blacks’ historical case begins with the first draft proposal of Black’s star witness for incorporation, Representative John Bingham. The text of that proposal was quoted earlier.91 What is so important about this proposal is that, even though it was eventually allowed to die, it generated some interesting exposition by Congressman Bingham which deserves some consideration.
It will be admitted, as Justice Black pointed out, that Bingham had made some sweeping declamations about this proposal which at first glance seem to indicate the Congressman intended for it to make the Bill of Rights applicable to the states. Illustrative of his statements is the following: “The proposition pending before the House is simply a proposition to arm the Congress … with the power to enforce the bill of rights as it stands in the Constitution today. It hath that extent  no more.”92 Bingham even cited the case of Barron v. Baltimore to substantiate his point that the Bill of Rights are unenforceable against the states.93 In an effort to change that situation, Bingham offered his first draft proposal.
Upon closer examination of Bingham’s statements, however, several inconsistencies appear which reveal Bingham’s misunderstanding of the whole incorporation issue. First, Bingham’s use of the term “bill of rights,” or “immortal bill of rights,” as he was fond of saying, did not refer to the first eight amendments of the federal Constitution, but was strictly limited to the provisions contained in his first proposal  the privileges and immunities clause and the due process clause of the Fifth Amendment. In fact, at no time did Bingham ever mention amendments I to VIII. The natural conclusion to be drawn from his statements, then, is that Bingham apparently did not even know what part of the Constitution comprises the Bill of Rights.
Secondly, Bingham did not even understand the import of the Barron case that he cited. That case had clearly affirmed the rule that the first eight amendments were not binding on the states, but only on the federal government. Bingham, however, misinterpreted Chief Justice Marshall to the effect that the Bill of Rights were indeed binding on the states because of their duty to uphold the Constitution as the supreme law of the land. Congress, Bingham believed, only lacked the power to enforce that oath. Bingham’s proposal, then, was designed to provide Congress with such an enforcement power.
This, of course, is a gross misreading of that landmark case. First, because the Bill of Rights were not binding upon the states, period, any “violation” of them by a state would not constitute a violation of their oath to obey the Constitution, since a state cannot violate a section of the Constitution which does not apply to it. Therefore, what the Bill of Rights failed to impose upon the state governments could not be imposed upon them by the clause which simply affirms that the Constitution is to be the supreme law of the land. Such egregious flaws in Bingham’s analysis of the issue seriously question the reliability of his remarks.
Nevertheless, Bingham’s first proposal was defeated and was replaced by a new draft which appears in the form of section one of the 14th Amendment. This new draft was significantly different from the first offered by Bingham, and therefore it must be considered as a totally new proposal deserving of new analysis and exposition. In Bingham’s only explanation of this new section one, he never mentioned any intent to overturn Barron v. Baltimore, nor did he ever mention any intent to make the first eight amendments applicable to the states, as Justice Black has said. In fact, Bingham had even ceased using his beloved phrase “the immortal bill of rights.” The only allusion he made in this speech to any of the first eight amendments is his suggestion that the states had, “contrary to the express letter of the Constitution,”94 inflicted cruel and unusual punishments upon citizens for which the federal government could provide no remedy. Bingham’s implied intention was to provide such a remedy by section one.
The only occasion in which Bingham clearly expressed the idea that the 14th Amendment would make the Bill of Rights applicable to the states was not in debate over that amendment, but in a speech five years later. In that speech of 1871 upon which Justice Black relied so heavily, Bingham did explicitly state that the understanding that lay in his mind when he drafted section one in 1866 was that the privileges and immunities clause would make amendments I through VIII applicable to the states.
If read by itself, this statement seems conclusive. Yet, this opinion was by no means the same that he had expressed of section one when he was explaining it back in 1866. In fact, one Congressman Garfield, who was opposing Bingham’s position in 1871, responded to Bingham’s claim that he had made his “incorporationist” views plainly known at the time by saying: “My colleague can make but he cannot unmake history.”96 Garfield had refreshed his memory of the 1866 debates by reading the congressional records, and was therefore on good ground to rebuff Bingham’s revisionism. Consequently, since Bingham’s only remarks revealing any intention of incorporation amount to no more than a vague reference to “cruel and unusual punishments,” his testimony on behalf of Justice Black’s “wholesale” theory is insignificant indeed.
Remarkably, this point was even recognized by Justice Black in his appendix,99 though he failed to see its significance. The significance lies in the fact that the Civil Rights Act was limited to 1) protecting such basic rights as the right to contract, sue, hold property and give evidence in court and 2) guaranteeing equal protection of the laws. Of course, these rights bear a remarkable resemblance to the privileges and immunities enumerated in Corfield v. Coryell,100 but they could by no means be interpreted to encompass the many broad and sundry freedoms found in the Bill of Rights. With such a narrow interpretation of section one having been held by a large proportion of Congress, it seems all the more incredible that Justice Black, who obviously studied these materials, would still insist that the framers of that section thought it “sufficiently explicit” to make the Bill of Rights applicable to the states.
Let us turn away now from an inquiry into the intent of Congress to an examination of how the 14th Amendment was interpreted by “those for whom it was adopted,” namely, the people in the states which ratified the Amendment.
Actually, the “reasonable interpretation” that the people placed on section one can be easily deduced. Although Justice Black provided absolutely no discussion of the original understanding of the 14th Amendment as may be derived from the state ratification debates, several scholars have studied this aspect of the Amendment’s history and have reached the same conclusion: The general opinion of section one held by the people who adopted it was that it embodied the Civil Rights Act of 1866.104 Yet, as we have seen, the Civil Rights Act is so limited in scope as to allow no room for incorporating the Bill of Rights. Among the scholars who have demonstrated that the people equated section one with the Civil Rights Act is Horace Flack himself.105 Justice Black, however, seemed oblivious to this fact.
To be sure, some of the states expressed the concern that the 14th Amendment would lead to the expansion of the national government and the demise of the federal system. However, because such issues as citizenship, voting rights and other “domestic relations” had always been under state authority, it was only natural for the states to fear how these areas might be affected by the “vague generalities” of section one. Yet, the records in the states show that no one hinted, much less contemplated that either of the provisions of section one was a “Trojan Horse” concealing the incorporation of the Bill of Rights.106 If such an intention had been suggested, it would have been bitterly opposed. In fact, Horace Flack agreed with the opinion of one Congressman who said in 1871: “If the monstrous doctrine (of incorporation) now set up as resulting from the provisions of that 14th Amendment had ever been hinted at, that Amendment would have received an emphatic rejection at the hands of the people.”107 This statement also seems to have been overlooked by Justice Black.
Further evidence which demonstrates that the states in no way understood the 14th Amendment to incorporate the Bill of Rights may be found in post-ratification events. First, several states changed or attempted to change their constitutions in a way which would make them inconsistent with one of the first eight amendments, thus indicating that the states considered themselves unbound by this federal standard.108 Secondly, state courts continued to decide cases which sought protection from the federal Bill of Rights by deferring to the precedent of Barron v. Baltimore, thus demonstrating their conviction that this case was unaffected by the 14th Amendment.109 On the basis of this evidence, then, it is clear that the states by no means understood any part of that Amendment to have the effect of making Amendments I through VIII applicable to them in their entirety.
When we turn now to an examination of how the Supreme Court has treated Justice Black’s theory of wholesale incorporation, we will find that it has consistently rejected his argument. Up until the time that the incorporation theory was plainly argued before the Court, the nation’s highest tribunal continued to decide cases which claimed state violation of the federal Bill of Rights by relying, as the state courts continued to do, on Barron v. Baltimore. The Court did this, for example, in the case of Twitchell v. Pennsylvania,110 decided less than one year after the ratification of the 14th Amendment. In that case, the plaintiff claimed that the state court proceeding which convicted him had violated the 5th and 6th Amendments of the federal Constitution. The Court rejected this argument by citing Barron and declared that “the scope and application of these amendments are no longer subjects of discussion here.”111 This case demonstrates, then, that the Supreme Court, which had witnessed the entire ratification process, expressed no indication that it understood the 14th Amendment to have the effect of incorporating the Bill of Rights.
Of course, the Twitchell case had only argued that the 5th and 6th Amendments were made applicable to the states by the 14th, and had not raised the broader wholesale incorporation argument. Yet, even when this argument was specifically raised by counsel in subsequent cases, the Court still flatly rejected such a claim. As we have seen, although the Slaughterhouse Cases were the first to construe the provisions of section one, and thereby eliminate them as grounds for making the Bill of Rights applicable to the states, that opinion did not directly address the full incorporation argument. That theory was first fully argued and addressed by the Court in the case of In re Kemmler.112 There the plaintiff admitted that the first ten amendments had originally applied only to the federal government, yet, inasmuch as these amendments recognize the fundamental rights of American citizens, they are protected by the privileges and immunities clause of the 14th Amendment and now made applicable to the states.
The response of the Court, as it has been every time this argument has been raised, was to dispose of it by relying on the Slaughterhouse interpretation of the privileges and immunities clause. Thus, in the cases of Maxwell v, Dow (1900),113 Twining v. New Jersey (1908), Palko v. Connecticut (1937) and Adamson v. California (1947), the Court has consistently rejected Black’s wholesale incorporation theory.
Moreover, although Black thought it necessary to provide his appendix of historical material in order to give the Adamson Court an opportunity to fully consider his wholesale theory, Black’s “original intent” argument had already been answered in Maxwell v. Dow.
In this case the plaintiff was claiming that the criminal proceeding by which he had been convicted of robbery had violated the 5th and 6th Amendments of the Constitution and the privileges and immunities and due process clauses of the 14th Amendment.
In making his argument for incorporating the Bill of Rights through the privileges and immunities clause, counsel for the plaintiff had cited from the speech given by Senator Howard when he introduced the 14th Amendment to the Senate for consideration. The plaintiffs counsel argued that since Howard had suggested that the privileges and immunities of citizens of the United States included the first eight amendments, that the Supreme Court should therefore adopt this interpretation also.
The Maxwell Court rejected this argument, however, by stating that one man’s views do not necessarily reflect the interpretation given to the Amendment by either the members of Congress who adopted it, or the majority of the state convention which ratified it. The Court was quick to add, however, that the true meaning of the 14th Amendment is to be determined not from the speeches made regarding it but from the language actually used in the amendment itself.
By laying such emphasis on the “plain and unambiguous” language of the Constitution, and on the intended purpose for which it was adopted, the Court has accurately articulated and faithfully followed the traditional rules of interpretation adhered to by Marshall and Story. What is most striking about this opinion, however, is that by consistently applying these rules to the 14th Amendment, the Maxwell Court had come to a conclusion about the theory of wholesale incorporation which not only contradicts but soundly refutes the thesis of Justice Black — someone who claimed to be following these same rules.
Thus, rather than providing revealing new evidence, Justice Black’s historical argument, which is based on the “conjectured intent” of one or two Congressmen, had already been weighed in the balance and found wanting. Yet, on the basis of his dissent, which is premised upon faulty interpretation and unsupportive historical materials, Justice Black would have the Court overturn 80 years of precedent. By dismissing Black’s argument, however, the Adamson Court had rightly chosen to reject a legal and historical fallacy.
The Court has chosen, however, to continue applying the incorporation doctrine according to the “selective” process of Palko v. Connecticut. Yet, as this study has demonstrated, the Court reached its conclusion in that case not by following the traditional rules of interpretation, which were accepted by the framers of the Constitution. Rather, the Palko Court blatantly adopted an evolutionary standard of construction in which neither the language nor the original purpose of the 14th Amendment, in particular, and the Constitution, in general, is relevant to any understanding of our nation’s frame of government.
In addition, this study has also shown that although Justice Black claimed to be following the traditional rules of interpretation to devise his theory of wholesale incorporation, he failed to completely and faithfully follow all of those rules in order to reach his erroneous conclusion.
Moreover, this study has primarily demonstrated that by applying the traditional rules of interpretation to its reading of the 14th Amendment, the Supreme Court of the late 19th Century had, in cases such as Slaughterhouse and Maxwell v. Dow, emphatically rejected both the selective and wholesale versions of the incorporation doctrine as a legal and historical fallacy.
In demonstrating these assertions, however, this study has made no attempt to prove the superiority of the Marshall/Story standard of interpretation or to make a cogent case as to why it should be adopted by American jurists, scholars, and statesmen. These are very complex and profound questions which deserve the full attention of an entirely separate study. Suffice it to say, however, that based on many moral, logical and exegetical reasons, it is the view of this author that these traditional rules of interpretation are the proper standard of construction and the one that is likely to produce the most reasonable, accurate and fair reading of the Constitution. Not least among these reasons, of course, is the fact that the Constitution should be interpreted according to the rules of construction by which the framers drafted that remarkable document.
In addition to the fact that this study has left the foregoing questions to a more in depth inquiry, neither has this study attempted to elaborately argue the pros and cons of the incorporation doctrine itself. Many legal scholars have examined this question, however, and it appears that although many scholars criticize the illogical, unhistorical approach by which the Court has made the Bill of Rights applicable to the states, very few object to holding the state governments to the same high standard as the federal government.
The ends, however, do not justify the means. Despite how strongly our constitutional scholars and judges may be convinced of the desirability of making the Bill of Rights applicable to the states, they must resist the temptation of adopting a tenuous legal theory to support their desired end. Even worse, not only has the Court failed to follow the proper rules of construction in its reading of the 14th Amendment, but far from being desirable, the effects of the incorporation doctrine have been devastating to both our governmental structure and our individual freedoms.
In light of this threatening situation, I believe that what is needed, in part, to restore and secure our freedoms, is a complete renunciation of the incorporation doctrine and the erroneous legal philosophy upon which it is founded. Since the root of the incorporation doctrine lies in an abandonment of the proper rules of interpretation, the key to overturning that theory is adhering to the full force of the Slaughterhouse Cases, which by following the Marshall/Story standard of construction, had destroyed the entire incorporation argument.
Furthermore, the rules of interpretation, which are the key to solving many other problems created by the federal judiciary, must begin to be respected and applied to every other area of Constitutional law as well. Rather than reading into the words of the Constitution an evolving meaning which may be altered to fit the personal predilection of the judge, the federal courts must begin to respect the actual text of the Constitution as it was reasonably interpreted at the time of its adoption. Such an approach would, for example, restore the original design of our federal system, which, with its diffusion of power, was wisely recognized by our founding fathers as the best governmental device for protecting our individual freedoms.
Many of these freedoms have been lost already, and even more threaten to be taken away. Only by returning to the true rules of constitutional interpretation can we restore and continue to enjoy the protection and stability that our written Constitution provides. Only then can America hope to once again become a government of laws and not of men.
64. Alexander Hamilton, quoted in Raoul Berger, “The Fourteenth Amendment: The Framersi Design,” 30 S. C. L. Rev. 4 (1979), 505.
65. Davidson v. New Orleans, 96 U.S. 97, 104 (1878).
66. Magna Carta, Chapter 39. See also Berger, Government, 270.
67. Murray’s Lessee, 59 U.S. (18 How.) at 276-77.
68. Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1864) and Hagar v. Reclamation District, 111 U.S. 701 (1884).
69. Palko v. Connecticut, 302 U.S. at 323.
74. Palko v. Connecticut, 302 U.S. at 326.
77. See infra notes 90 and 96.
78. Slauqhterhouse Cases 83 U.S. (16 Wall.) at 77.
81. It was this “logic,” for example, that allowed the Court to reason that capital punishment, countenanced by the 5th Amendment, “constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408 U.S. 238 (1972) at 240.
82. It is for this reason that certain provisions of the Bill of Rights, such as the 5th Amendment grand jury indictment and the 7th Amendment civil jury trial requirement have not been incorporated against the states. It is under this rationale, also, that the so-called “right to privacy,” found nowhere in the text of the Bill of Rights, has been incorporated to protect from state encroachment such “fundamental rights” as abortion. See Roe v. Wade, 410 U.S. 113 (1973).
83. Slaughterhouse Cases 83 U.S. (16 Wall.) at 78.
84. 211 U.S. 78 (1908).
85. 332 U.S. at 71, 72, 74.
88. 391 U.S. 145 (1968).
89. Id. at 174-75, footnote 8 (Harlan, J. dissenting).
92. Congressional Globe, 39th Cong., 1st. Sess. (1866). H. 1088.
96. Congressional Globe, 42nd Cong., 1st Sess., (1871) app. 151.
98. See speeches of Stevens, Finck, Thayer, Broomall, Boyer, Garfield, Raymond, Eliot, Rogers and Kelley, Congressional Globe, 39th Cong., 1st Sess., H. 2459-2542 and speech of Henderson, Id., S. 3031.
99. 332 U.S. at 107-8.
103. Story, footnote at 392.
104. Joseph B. James, The Ratification of the Fourteenth Amendment (Mercer University Press, 1984) 23-4. See also Bond, infra note 63, at 443.
110. 74 U.S. (7 Wall.) 321 (1869).
111. Cited in Fairman, 132.
112. 136 U.S. 436 (1890).
113. 176 U.S. 581 (1900).
114. 302 U.S. at 323.
115. 176 U.S. at 601-2.

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1, The name of the corporation is Tennessee fireworks Association.
2. The corporation will be a not for profit corporation, organized pursuant to Tennessee Code Annotated 48-51-101 et seq. and Tennessee Code Annotated 48-52-102 (a) (2) (A).
3. The corporation will be a public benefit corporation pursuant to Tennessee Coda Annotated 48-52-102 (a) (2) (A).
(h) To perform all other acts necessary or incidental to the above and to do whatever is deemed necessary, useful, advisable, or conducive, directly or indirectly, to carry out any of the purposes of ~he corporation, as set forth in this charter, including the exercise of all other power and authority enjoyed by corporations generally by virtue of the provisions of the Tennessee Nonprofit Corporation Act.
5. The corporation is not organized nor shall be operated for pecuniary gain or profit.
(a) No part of the property or net earnings of the corporation shall inure to the benefit of, or be distributab1e to, any member, director, officer, or trustee of the corporation, or any other private person; but the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in paragraph 4 hereof.
(b) No substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate or intervene (including the publication or distribution of statements)in any political campaign on behalf of or in opposition to any candidate for public office.
(c)If at any time the corporation is deemed to be a private foundation as defined in section 509 of the Code, then so long as the corporation is deemed pribate foundation, it shall not, as provided in section 508(e)of the Code, fail to require its income for each taxable year to distributed at such time and in such manner as to not subject the corporation to tax under §4942 of the Code, engage in any act of self-dealing as defined in §4941(d) of the Code, retain any excess business heldings as defined in §4943© of the Code, make any investments in such manner as to subject the corporation to tax under §4944 of the Code, or make any taxable expenditures as defined in §4945(d) of the Code.
(d) Notwithstanding any other provisions of this charter or the Bylaws, the corporation shall not carry on any other activities not permitted to be carried on: (1) by a corporation exempt from federal income tax under §501(c)(6) of the Code, or the corresponding section of any future federal tax code; or (2) by a corporation, contributions to which are deductible for federal income tax purposes under §170(c)(2) of the Code, or the corresponding section of any future federal tax code.
6. The Board of Directors shall have general charge of the affairs and any property and assets of the corporation. It shall be the duty of the directors to carry out the purposes and functions of the corporation. The directors shall be elected in accordance with the Bylaws of the corporation and shall have the power~ and duties se~ forth in this charter and in the Bylaws.
7. The corporation shall have members which shall elect the Board of Directors.
8. No member of the Board of Directors shall have any personal liability to the corporation for monetary damages for breach of duty of care or other duty as a director; provided, however, that the foregoing shall not eliminate the liability of any director for those matters described pursuant to the Tennessee Nonprofit Corporation Act 48-58-101 et seq.
organizations as said court shall determine, which are organized and operated exclusively for such purposes.
l0. This charter may be amended at any time and from time to time by the affirmative vote of a majority of all of the directors then in office, for issues authorized in T.C.A. 48-60-102 and by the Members as authorized in and according to T.C.A. 48-60-103.
11. (a) The complete address of the corporation's initial registered office in Tennessee is l136 Lipscomb Dr., Nashville, Tennessee 37204, County of Davidson.
(b) The name of the initial registered agent, to be located at the address listed in 3(a), is Earnest Clevenger.
13. The complete address of the corporation’s principal office is 1136 Lipscomb Dr., Nashville, Tennessee 37204.
This the 16th day of August 2007.


Justia › US Law › Case Law › Minnesota Case Law › Minnesota Supreme Court Decisions › 1995 › Tuff v. Knitcraft Corp.
Ernest TUFF, Respondent, v. KNITCRAFT CORP., Respondent, Commissioner of Economic Security, Petitioner, Relator.
*51 Kent E. Todd, Dept. of Economic Security, St. Paul, for relator.
In this claim for unemployment compensation benefits, the referee authorized Ernest Tuff to receive benefits; she found that Tuff had requested a medical leave of absence and thought he had been granted that leave, and that his employer discharged Tuff because of a miscommunication as to the allowable time off. The commissioner's representative reversed the referee and concluded that Tuff had committed disqualifying misconduct by taking an extended leave of absence without notifying his employer. The court of appeals reversed, holding that the commissioner's representative was required to specify the reasons for rejecting the referee's findings of fact. We granted the commissioner's petition for further review for the sole purpose of clarifying the standard of review on certiorari to the court of appeals. We reverse.
The court of appeals, citing Semanko v. Department of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976), acknowledged that its task on appeal is to review the findings of the commissioner or the commissioner's representative, not those of the referee, even though those findings might involve witness credibility. Nevertheless, it then imposed a burden on the commissioner's representative to demonstrate the basis for rejecting the referee's credibility determination. In addition, the court required the commissioner's representative on remand to address the applicability of the serious illness exception contained in Minn. Stat. § 268.09, subd. 1(c)(2) (Supp.1993) an exception held applicable by the referee and rejected without explanation by the commissioner's representative. Tuff v. Knitcraft Corp., 520 N.W.2d 483 (Minn.App.1994).
[D]isregard the findings of fact of the referee and examine the testimony taken and make any findings of fact as the evidence taken before the referee may, in the judgment of the commissioner, require, and make any decision as the facts found by the commissioner require.
Minn.Stat. § 268.12, subd. 13(3) (1992). This court has long accorded particular deference to the commissioner rather than to the referee. In Chellson v. Division of Employment and Sec., 214 Minn. 332, 8 N.W.2d 42 (1943), we held that the applicable standard of review is "whether there is reasonable support in the evidence to sustain the decision of the director [now commissioner] rather than the decision of the appeal tribunal [now referee]." 214 Minn. at 335, 8 N.W.2d at 44; White v. Metropolitan Medical Ctr., 332 N.W.2d 25 (Minn.1983).
*52 Because the decision of the court of appeals imposes a burden inconsistent with the statute and with our previous decisions, we reverse. We reinstate the decision of the commissioner's representative that relator Tuff was discharged from his employment for misconduct and that he is accordingly disqualified from the receipt of unemployment benefits. Minn.Stat. § 268.09, subd. 1(b) (1992). Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973).


Justia › US Law › US Case Law › US Supreme Court › Volume 355 › United States v. Shotwell Mfg. Co.
United States v. Shotwell Manufacturing Co.
In a jury trial in a federal court, respondents were convicted of willfully attempting to evade federal corporate income taxes. The Court of Appeals reversed on the ground that their privilege against self-incrimination had been violated by the admission of evidence obtained as a result of timely voluntary disclosures made by them in good faith in the hope of obtaining immunity from criminal prosecution under a policy then followed by the Treasury Department. After petitioning this Court for certiorari, the Government moved that the case be remanded to the District Court for further proceedings, on the ground that newly discovered evidence revealed that testimony at the trial concerning the timeliness and good faith of respondents' disclosures was perjured and fraudulent.
Held: this Court will not review a case on the basis of a record so challenged as being tainted with perjury and fraud; the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for reexamination in further proceedings on the issues relating to respondents' allegedly voluntary disclosures. Pp. 355 U. S. 234-246.
(a) This Court will not review a case when the record is challenged, on the basis of newly discovered evidence, as being so tainted with perjury and fraud. Communist Party v. Subversive Activities Control Board, 351 U. S. 115; Mesarosh v. United States, 352 U. S. 1. Pp. 355 U. S. 241-242.
(b) Here, a convincing showing has been made that newly discovered evidence will show that testimony concerning crucial questions as to the timeliness and good faith of respondents' disclosures was perjured and fraudulent, and this Court will not review the decision of the Court of Appeals until these charges have been resolved. Pp. 355 U. S. 242-243.
(c) Since respondents were found guilty by the jury, the motion to remand involves no question of double jeopardy. P. 355 U. S. 243.
(d) The Government's new showing does not relate to an issue submitted to the jury, but to a preliminary question relating to the admissibility of evidence, and, since the Court of Appeals set aside the verdict on that point, fair administration of justice requires that the Government have an opportunity to show that that decision was obtained by respondents on a corrupt record attributable to their own fraud. Pp. 355 U. S. 243-244.
(e) This Court will not sanction a rule which would prohibit appellate review upon a record suspect of taint when the taint might operate to the disadvantage of the defendants, but which would require review when the taint might operate to their advantage. P. 355 U. S. 244.
(f) Since the charges as to the integrity of the record must be fully aired and the District Court is the proper forum for that purpose, it would be unnecessary and wasteful to remand this case to the Court of Appeals. Pp. 355 U. S. 244-245.
(g) On remand, additional evidence to be presented by both sides will be confined to the issue whether certain evidence admitted at the trial should have been suppressed, and the District Court will make appropriate new findings of fact on that issue, and enter appropriate new final judgments on the basis of such findings. Pp. 355 U. S. 245-246.
225 F.2d 394, judgment vacated and case remanded to District Court.
This case presents an unusual question involving the integrity of a criminal trial in the federal courts.
alleged to have come into the possession of the Government after the United States had petitioned for certiorari to review a decision of the Court of Appeals setting aside the conviction of the respondents. It is claimed that such evidence shows that the decision of the Court of Appeals was based upon a perjurious record attributable to the fraud of the respondents.
A clear appreciation of both the proceedings in the lower courts and the peculiar circumstances in which the Government's motion arises is essential to an understanding of why we believe the motion to remand must be granted.
"limited to the issues raised in the amended motion to remand and supplement thereto and the respondents' answer to the amended motion to remand. [Footnote 8]"
352 U.S. 997. We denied the cross-petition for certiorari. 352 U.S. 998.
ceiling prices; [Footnote 10] that these receipts were not recorded on Shotwell's books and were not reported in its income tax returns; that he first learned of these facts in the course of conversations with H. Stanley Graflund, Shotwell's comptroller, during a trip they took to New York early in January, 1948; that, immediately upon his return to Chicago, he discussed the matter with respondents Cain and Sullivan; that he recommended disclosing the omissions to the taxing authorities; and that, at the direction of respondents, he revealed the entire affair to Ernest J. Sauber, Deputy Collector in Chicago, in a series of conferences beginning in the latter part of January, 1948, at one or more of which conferences he was accompanied by Cain. He also testified that, thereafter, acting under Sauber's instructions and assurances that only a civil liability was involved, he and his staff, with the assistance of Cain, Huebner, and Graflund, conducted an exhaustive investigation over a period of several months to reconstruct the Shotwell figures on the black market transactions. He said that these figures were furnished in August, 1948, to a revenue agent for scrutiny.
the tax authorities, and that the alleged offsetting payments for black market supplies were, in fact, concocted "out of thin air" at the July meeting; and (5) Huebner swears that, in July and August, 1948, he gave Cain $10,000 which Cain said he needed "to fix the tax difficulty we were in." [Footnote 15] Huebner says in his affidavit that he was not asked to testify in the District Court "because I had stated I would not lie on the stand."
of government officials, [Footnote 16] and certainly entailing an attempt to perpetrate a fraud upon the courts. Were we to undertake to review the Court of Appeals upon a record as suspect as this, we might very well be lending ourselves to the consummation of a fraud which may already have made the Court of Appeals its unwitting victim. In these circumstances, it is imperative that the case be remanded to the District Court for a full exploration of where the truth lies before the case is allowed to proceed further. The integrity of the judicial process demands no less.
"The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U. S. 332. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted. . . . We cannot pass upon a record containing such challenged testimony. We find it necessary to dispose of the case on the grounds we do, not in order to avoid a constitutional adjudication, but because the fair administration of justice requires it."
"This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. [Citing McNabb, supra, in a footnote.] If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity."
Court was untrue or these affidavits themselves are the product of fraud. This is a matter for the District Court to determine. One thing is clear. This Court cannot be asked to review the decision of the Court of Appeals until these charges have been resolved.
In both the Communist Party and Mesarosh cases, supra, the action of the Court enured to the benefit of the defendants. In this instance, the further proceedings below may work to the advantage of the Government. [Footnote 18] In the circumstances of this case, we think that the distinction makes no difference. Because they were found guilty by the jury, respondents concede, as they must, that the motion to remand involves no question of double jeopardy. See United States v. Ball, 163 U. S. 662, 163 U. S. 672. Their objection that it is "unfair" to allow the Government at this stage of the proceedings to "bolster" the record relating to the suppression issue is likewise unacceptable. It is undeniable, of course, that, upon appellate reversal of a conviction, the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence. We think that, in the peculiar circumstances of this case, the fair administration of justice requires that the Government should have a similar opportunity here. For if the Government's evidence is found to be true, it would then appear that the Court of Appeals' decision setting aside the verdict was obtained by the respondents on a corrupt record attributable to their own fraud. In the further proceedings in the District Court, the respondents will, of course, have a reciprocal opportunity to sustain the validity of their asserted voluntary disclosures.
We should not lose sight of the fact that the Government's new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence. [Footnote 19] Hence, to grant the Government's motion is not to permit it to "bolster" the evidence upon which the verdict of guilty was returned by the jury in this case. That verdict clearly must stand or fall on the sufficiency of the evidence already introduced at the trial.
In these circumstances, acceptance of the respondents' position on this motion would be tantamount to sanctioning a rule which would prohibit appellate review upon a record suspect of taint, if the taint might operate to the disadvantage of the defendants, but which would nevertheless require review if the taint might operate to their advantage. We cannot subscribe to that quixotic result. The fair administration of justice is not such a one-way street.
addressed to our discretion, and, in the circumstances of this case, we find it unavailing. The Government was not in a position to make the motion until after its petition for certiorari had been filed in this Court. The course of this litigation has already been protracted. We are abundantly satisfied that the charges as to the integrity of the record must be fully aired, and that the proper forum for this is the District Court, because of its intimate familiarity with the record and its facilities for sifting controverted facts. In this state of affairs, we think that it would be both unnecessary and wasteful to remit the Government to the Court of Appeals. Cf. Mesarosh, supra, at 352 U. S. 13.
adhere to its original decision on the motion to suppress, it will then enter new final judgments based upon the record as supplemented by its new findings, thereby preserving to all parties the right to seek further appellate review, including respondents' right to have reviewed by the Court of Appeals alleged errors in the original trial which that court did not reach in the previous appeal. If, on the other hand, the District Court concludes after the further proceedings that the motion to suppress should have been granted, it would then become its duty to accord the respondents a new trial.
In accordance with the views set forth in this opinion, we make the following disposition of this case: (1) this Court's order of February 25, 1957, which granted with limitations the Government's petition for certiorari, is vacated, and such petition is granted without restriction; (2) the judgment of the Court of Appeals is vacated; and (3) the case is remanded to the District Court for further proceedings consistent with this opinion.
Internal Revenue Code of 1939, § 145(b), 53 Stat. 63. The Shotwell Company manufactured candy and marshmallows. Cain was President, Sullivan, Executive Vice President and General Counsel, and Huebner, Vice President. Huebner is no longer a respondent here. See notes 6 and | 6 and S. 233fn7|>7 infra.
Under that policy, first announced by the Treasury Department in 1945, the Department did not refer to the Department of Justice for prosecution cases of intentional income tax evasion where the taxpayers had made a clean breast of things to the Treasury before any investigation had been initiated by the Revenue Service. This policy was set forth in various informal announcements by Treasury officials, but was never formalized by statute or regulation. The policy was abandoned in January, 1952.
The propriety of this pretrial procedure is not before us.
The Court of Appeals did not pass on other contentions made by the respondents in support of a reversal of their conviction.
More specifically, the Court of Appeals held that there was an effective voluntary disclosure and that the Government's use of the evidence thereby obtained from the respondents violated their rights under the Self-Incrimination Clause of the Fifth Amendment. The District Court simply held that the alleged voluntary disclosure was defective, and did not discuss the Fifth Amendment. In the present posture of this case we do not reach the correctness of these rulings of the two lower courts, or any other question going to the merits of the respondents' conviction.
We deferred consideration of the petition and cross-petitions for certiorari for some months on the basis of representations made by the Solicitor General in his letters of December 6, 1955, and June 1, 1956, which culminated in the filing of the Government's motion to remand. See 351 U.S. 980. As originally filed, the cross-petition was conditional on the Government's petition being granted. After the Government moved to remand, respondents withdrew the conditional limitation, and Huebner withdrew his cross-petition in its entirety.
Huebner later withdrew his answer and consented to the Government's motion.
Respondents point out that this limitation of our writ in effect amounted to a denial of the Government's petition for certiorari, and therefore that the motion to remand, which was not before the Court of Appeals, must be regarded as an attempt to invoke an original jurisdiction which we do not possess. We shall dispose of respondents' point by vacating our limited with and granting, nunc pro tunc, the Government's petition for certiorari, without restriction. This removes all question as to our jurisdiction, 28 U.S.C. § 2106; Mesarosh v. United States, 352 U. S. 1, and prejudices neither party, because we shall decide only the issues raised by the motion to remand.
Respondents have made no such showing in opposition to the Government's motion as would justify our questioning the accuracy of the Solicitor General's representation that the Government's proffered evidence is "newly discovered."
The Government puts the figure at some $380,000; the respondents' figure is about $160,000.
Except for the amount of $6,000 which was reported in the Shotwell returns.
Although the Treasury policy at the time denied deductability to such black market expenditures, the courts later held that this kind of expenditure was deductible. See Sullenger v. Commissioner, 11 T.C. 1076.
According to Graflund's affidavit, it would appear that the respondents were spurred into action after Sam Krane, a Special Agent of the Internal Revenue Service, visited the Shotwell office on June 21, 1948. The affidavit states that Krane requested records and information relating to Shotwell's transactions with one David G. Lubben, from whom Shotwell had been receiving large sums of money which were not recorded in its regular books; that Graflund made certain records available to Krane, and was "criticized" by the respondents for having done so; and that Graflund conferred with Busby within a few days after Krane's visit.
"On November 13, 1952, Sauber testified at the hearing on the defendant's motion to suppress evidence that Busby and Cain had contacted him in March, 1948. After hearing Sauber testify, I told Cain I thought the voluntary disclosure date was supposed to be June 15, 1948. Cain said to me, 'Ssshhh! There is nobody that knows anything about this. Keep quiet.'"
"Cain also told me, sometime in about late July, 1948, that he was about to settle the tax case. Shortly thereafter, Cain told me he had settled the tax case for a tax deficiency of $20,000.00"
"In October, 1948, Busby told me that there had been a meeting in the fraud division at the Internal Revenue office and that hell had broken loose; that some Internal Revenue people had a heck of a time destroying papers that had been made up for the purpose of billing Shotwell for taxes."
Section 14(a) of the Subversive Activities Control Act expressly authorizes courts of appeals to remand cases to the Board for the taking of further evidence. 64 Stat. 987 at pp. 1001-1002. Our authority to act in similar fashion is found in the broad provisions of 28 U.S.C. § 2106, which grants us power, incident to our appellate jurisdiction, to "vacate . . . any judgment" brought "before [us] for review," and to "require such further proceedings to be had as may be just under the circumstances."
The Government does not concede the correctness of the Court of Appeals' decision upon the existing record. Cf. United States v. Johnson, 327 U. S. 106, 327 U. S. 111-112.
Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury. Rather, their contention has been that the judge should have sustained the motion to suppress.
It has also been suggested that these charges of fraud could be dealt with at the new trial which the Court of Appeals has ordered. But, as the Court of Appeals has directed suppression of the evidence obtained by the Government as a result of the alleged voluntary disclosure, it seems clear that, at the new trial, the Government could not use that evidence, or the fruits thereof, unless the "suppression" aspect of the judgment of the Court of Appeals is vacated. We think that the sound administration of justice precludes that course because, if the Government's evidence is true, the net effect would be to grant the respondents a new trial, not otherwise justified, procured by their own fraud.
Respondents have contended that the Government's new evidence is irrelevant to the issue of timeliness because, even assuming its truth, the disclosure was timely, since no formal investigation was initiated by the Revenue Service until after July, 1948, the time that the Government's new evidence indicates that the respondents first communicated with the Treasury. We find it unnecessary to deal with this contention, because the new evidence is, in any event, clearly relevant to the question whether a bona fide disclosure was in fact ever made. Moreover, in the present state of the record, this Court should not pass on respondents' argument as to timeliness, because (a) the District Court has not yet made a finding on this issue, and (b) the Treasury "voluntary disclosure policy" was never formulated with sufficient precision to enable us to apply it mechanically.
Dissenting opinion of MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, announced by MR. JUSTICE DOUGLAS.
By remanding this case so that the Government can introduce additional evidence to save the conviction thrown out by the Court of Appeals, I think the Court takes unnecessary and unprecedented action which may have far-reaching and unfortunate ramifications not yet clearly foreseen. I would deny certiorari, and thus permit the case in its regular course to go back to the District Court for a new trial pursuant to the decision of the Court of Appeals. At this trial, the Government could introduce any evidence which it now has, new or otherwise, and a full hearing could be had on its charges of perjury and fraud.
The Court of Appeals held that defendants' incriminating disclosures were secured by promises of immunity made by various government officials, and that such disclosures could not be used to convict defendants because of their privilege against self-incrimination under the Fifth Amendment. Now this Court sends the case back to the District Court to hear new evidence and make new findings with respect to whether defendants' disclosures were made in good faith and in full accordance with certain vague conditions attached to the offers of immunity. [Footnote 2/1] The majority asserts that it is not ruling on the merits of the defendants' Fifth Amendment claims, but it seems to me a vain and wasteful act for the majority to return the case to the District Court for these supplemental proceedings unless it assumes that neither the Fifth Amendment nor any rule of evidence in the federal courts bars the use of incriminating admissions induced by promises of immunity where the disclosures are not made with pure motives. If we are going to concern ourselves with the case at all, I believe we should at least give full consideration to the legal problems involved in defendants' requests for suppression before remanding the case for any further proceedings.
by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise, for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted."
In accord with this statement, it appears to have been generally assumed in this Court that the Fifth Amendment bars the use against a defendant in a criminal prosecution of confessions or admissions secured from him by promises of immunity. See, e.g., Hardy v. United States, 186 U. S. 224, 186 U. S. 229; Ziang Sung Wan v. United States, 266 U. S. 1, 266 U. S. 14; Smith v. United States, 348 U. S. 147, 348 U. S. 150. And so far as I can tell, this Court has never considered whether lack of good faith deprives a suspect of the Fifth Amendment's protection when he makes disclosures under a promise of immunity, or under just what circumstances and to what extent this might be true. I do not mean to intimate any view on the merits of this problem now, but I do register a protest against the manner in which the majority disposes of the case.
"When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if, upon the whole evidence, they are satisfied it was not the voluntary act of the defendant. "
Just recently, in Smith v. United States, 348 U. S. 147, 348 U. S. 151, the Court stated that the question of voluntariness was properly left to the jury where a taxpayer claimed he had made certain disclosures on the strength of promises of immunity by revenue officers. Cf. Kent v. Porto Rico, 207 U. S. 113, 207 U. S. 118-119.
In the lower federal courts, there seems to be considerable difference of opinion as to whether the Wilson case makes it mandatory that the jury participate in the process of determining whether a confession is voluntary, or whether the jury's participation is a matter of discretion with the trial judge. [Footnote 2/2] E.g., compare United States v. Leviton, 193 F.2d 848, 852, certiorari denied, 343 U. S. 946, with Lewis v. United States, 74 F.2d 173, 178-179. In at least the District of Columbia Circuit, the rule appears to be settled that the trial judge must submit the question of voluntariness to the jury for its independent determination. McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21. In the States, a number of different methods of allocating the burden of determining the voluntariness of a confession between the judge and jury have been followed, but the trend seems to be that the judge should determine voluntariness in the first instance, and, if he finds that the confession is voluntary, then should submit the case to the jury with instructions not to consider the confession as evidence unless they also find it voluntary. As a matter of fact, the Court in Wilson relied on state cases which had laid down this so-called "humane" rule. I myself favor such a rule, which is particularly beneficial where, as here, the question of admissibility turns to a large extent on the credibility of witnesses.
"the Government's new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence."
"Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury."
But these answers are obviously inadequate. We are not concerned with what has happened or what was urged, but with how this case will be handled in the future. If the new trial ordered by the Court of Appeals had been allowed to stand, the defendants would not have been barred from demanding that the question of admissibility be submitted to the jury just, because they had not made a similar request at the first trial or on appeal.
it is a new idea that the Government can supplement a trial record in order to retain a conviction which an appellate court would otherwise reverse.
Both the Government and the Court concede that the action taken here is extraordinary, but such disposition is justified on the ground this is an exceptional case which called for extraordinary action. I do not agree. In essence, all the Government proposes to do on remand is to impeach the testimony of certain witnesses for both sides with alleged newly discovered evidence. No witness has recanted, nor do the defendants concede that their testimony was false. If the Government can partially reopen a case to impeach witnesses, what rational basis is there for denying it a similar right in any case when new facts appear which persuasively suggest that it could strengthen its evidence in order to save a conviction on appeal? This possibility emphasizes the anomalous nature of what is done here.
and that it is better, although concededly unique, to send the case back for more evidence on that issue. But there is no need to resort to either undesirable alternative. As I stated in the beginning, the case should simply be left alone, and allowed to go back for a new trial. There, the Government can offer all the evidence it has or can secure, so that a new record can be made on the suppression issue. In my judgment, it cannot seriously be contended that the Government would be barred from introducing evidence on that issue at a new trial. While it is true that the Court of Appeals ordered the disclosures suppressed, on the evidence in the record then before it, such ruling should not be construed as binding at a new trial where substantial newly discovered evidence is available. Cf. Aetna Life Ins. Co. v. Wharton, 63 F.2d 378; City of Sedalia ex rel. Ferguson v. Shell Petroleum Corp., 81 F.2d 193. If need be -- and I think not -- this Court could vacate the judgment of the Court of Appeals to the extent necessary to allow the Government a de novo hearing on the suppression issue at the new trial. 28 U.S.C. § 2106. This would do full justice as far as the charges of tax evasion are concerned, and, if perjury has been committed, it can be prosecuted as a separate crime.
I think this case is a dangerous precedent which should not be launched needlessly into the stream of the law.
"We are not concerned with the motivating force behind an individual's deciding to come in and talk to us about his evasion. If he 'gets religion' before we have done anything, he will not be prosecuted."
Treasury Press Release, May 14, 1947.
The entire subject is annotated in great detail at 170 A.L.R. 567. Also see 85 A.L.R. 870.
Neither Mesarosh v. United States, 352 U. S. 1, nor Communist Party v. Subversive Activities Control Bd., 351 U. S. 115, serves as any authority for the Court's action. In the Mesarosh case, the Government had secured a conviction which had been upheld by the Court of Appeals. In this Court, the Government came forward with evidence that one of its principal witnesses at the trial had committed perjury, and the Court reversed the conviction and remanded the case for a full new trial. Here, the United States has lost a conviction in the Court of Appeals. It now asks us to send the base back to the trial court so that it can introduce additional evidence in an attempt to salvage the reversed conviction. The difference between the two cases is manifest, and crucial.
In the Communist Party case, administrative findings were challenged, and this Court remanded the case to the agency so that it might consider the record free of any perjurious testimony by government witnesses. The administrative proceeding there can hardly be equated with the criminal prosecution involved here. Moreover, in both the Mesarosh and Communist Party cases, the Court's action operated to protect the rights of defendants, not, as here, to aid the Government. In view of our traditional methods of criminal justice, this difference is not without importance.
Shotwell Manufacturing Company, et al.