# In re Winship/Dissent Black

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Mr. Justice BLACK, dissenting.
The majority states that 'many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.' Ante, at 362. I have joined in some of those opinions, as well as the dissenting opinion of Mr. Justice Frankfurter in Leland v. Oregon, 343 U.S. 790, 802, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952). The Court has never clearly held, however, that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution. The Bill of Rights, which in my view is made fully applicable to the States by the Fourteenth Amendment, see Adamson v. California, 332 U.S. 46, 71-75, 67 S.Ct. 1672, 1686-1688, 91 L.Ed. 1903 (1947) (dissenting opinion), does by express language provide for, among other things, a right to counsel in criminal trials, a right to indictment, and the right of a defendant to be informed of the nature of the charges against him. And in two places the Constitution provides for trial by jury, but nowhere in that document is there any statement that conviction of crime requires proof of guilt beyond a reasonable doubt. The Constitution thus goes into some detail to spell out what kind of trial a defendant charged with crime should have, and I believe the Court has no power to add to or subtract from the procedures set forth by the Founders. I realize that it is far easier to substitute individual judges' ideas of 'fairness' for the fairness prescribed by the Constitution, but I shall not at any time surrender my belief that that document itself should be our guide, not our own concept of what is fair, decent, and right. That this old 'shock-the-conscience' test is what the Court is relying on, rather than the words of the Constitution, is clearly enough revealed by the reference of the majority to 'fair treatment' and to the statement by the dissenting judges in the New York Court of Appeals that failure to require proof beyond a reasonable doubt amounts to a 'lack of fundamental fairness.' Ante, at 359, 363. As I have said time and time again, I prefer to put my faith in the words of the written Constitution itself rather than to rely on the shifting, day-to-day standards of fairness of individual judges.
* Our Constitution provides that no person shall be 'deprived of life, liberty, or property, without due process of law.' The four words-due process of law-have been the center of substantial legal debate over the years. See Chambers v. Florida, 309 U.S. 227, 235-236, and n. 8, 60 S.Ct. 472, 476-477, 84 L.Ed. 716 (1940). Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.
'Due process of law' was originally used as a shorthand expression for governmental proceedings according to the 'law of the land' as it existed at the time of those proceedings. Both phrases are derived from the laws of England and have traditionally been regarded as meaning the same thing. The Magna Charta provided that:
'No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by Law of the Land.'
Later English statutes reinforced and confirmed these basic freedoms. In 1350 a statute declared that 'it is contained in the Great Charter of the Franchises of England that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land * * *.' Four years later another statute provided '(t)hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.' And in 1363 it was provided 'that no man be taken or imprisoned, nor put out of his freehold, without process of law.'
Drawing on these and other sources, Lord Coke, in 1642, concluded that 'due process of law' was synonymous with the phrase 'by law of the land.' One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that '(t)he words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words 'by the law of the land' in Magna Charta.' Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272, 276, 15 L.Ed. 372 (1856).
While it is thus unmistakably clear that 'due process of law' means according to 'the law of the land,' this Court has not consistently defined what 'the law of the land' means and in my view members of this Court frequently continue to misconceive the correct interpretation of that phrase. In Murray's Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated:
'The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.' Id., at 276-277.
Later in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), Mr. Justice Moody, again speaking for the Court, reaffirmed that 'due process of law' meant 'by law of the land,' but he went on to modify Mr. Justice Curtis' definition of the phrase. He stated:
'First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. * * *
'Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment. * * *
'Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.' Id., at 100-101, 29 S.Ct., at 20.
In those words is found the kernel of the 'natural law due process' notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that 'shocks its conscience,' deprives a person of 'fundamental fairness,' or violates the principles 'implicit in the concept of ordered liberty.' See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 210, 96 L.Ed. 183 (1952); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). While this approach has been frequently used in deciding so-called 'procedural' questions, it has evolved into a device as easily invoked to declare invalid 'substantive' laws that sufficiently shock the consciences of at least five members of this Court. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 (1924); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). I have set forth at length in prior opinions my own views that this concept is completely at odds with the basic principle that our Government is one of limited powers and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution. See, e.g., Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (1947) (dissenting opinion); Griswold v. Connecticut, supra, 381 U.S., at 507, 85 S.Ct., at 1694, 14 L.Ed.2d 510 (1965) (dissenting opinion).
In my view both Mr. Justice Curtis and Mr. Justice Moody gave 'due process of law' an unjustifiably broad interpretation. For me the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'-that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause, in both the Fifth and Fourteenth Amendments, in and of itself does not add to those provisions, but in effect states that our governments are governments of law and constitutionally bound to act only according to law. To some that view may seem a degrading and niggardly view of what is undoubtedly a fundamental part of our basic freedoms. But that criticism fails to note the historical importance of our Constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that from the beginning had its limits of power set forth in one written document that also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law.
For years our ancestors had struggled in an attempt to bring England under one written constitution, consolidating in one place all the threads of the fundamental law of that nation. They almost succeeded in that attempt, but it was not until after the American Revolution that men were able to achieve that longsought goal. But the struggle had not been simply to put all the constitutional law in one document, it was also to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. Our ancestors' ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase 'due process of law.' The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law-state or federal-unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the 'law of the land' and instead becomes one governed ultimately by the 'law of the judges.'
It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of 'fundamental fairness' it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people-the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but it was also given broad power to do all that was 'necessary and proper' to carry out its basic purpose of governing the Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people in my opinion, should never be denied by this Court except when the decision of the people as stated in laws passed by their chosen representatives, conflicts with the express or necessarily implied commands of our Constitution.
I admit a strong, persuasive argument can be made for a standard of proof beyond a reasonable doubt in criminal cases-and the majority has made that argument well-but it is not for me as a judge to say for that reason that Congress or the States are without constitutional power to establish another standard that the Constitution does not otherwise forbid. It is quite true that proof beyond a reasonable doubt has long been required in federal criminal trials. It is also true that this requirement is almost universally found in the governing laws of the States. And as long as a particular jurisdiction requires proof beyond a reasonable doubt, then the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard. See Turner v. United States, 396 U.S. 398, 430, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). But when, as here, a State through its duly constituted legislative branch decides to apply a different standard, then that standard, unless it is otherwise unconstitutional, must be applied to insure that persons are treated according to the 'law of the land.' The State of New York has made such a decision, and in my view nothing in the Due Process Clause invalidates it.

## Notes

1 Amdts. V, VI, U.S.C.onstitution.
2 Art. III, § 2, cl. 3; Amdt. VI, U.S.C.onstitution.
3 The Fifth Amendment applies this limitation to the Federal Government and the Fourteenth Amendment imposes the same restriction on the States.
4 9 Hen. 3, c. 29 (1225). A similar provision appeared in c. 39 of the original issue signed by King John in 1215.
5 25 Edw. 3, Stat. 5, c. IV.
6 28 Edw. 3, c. III.
7 37 Edw. 3, c. XVIII.
8 Coke's Institutes, Second Part, 50 (1st ed. 1642).
9 Cf. United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812), in which the Court held that there was no jurisdiction in federal courts to try criminal charges based on the common law and that all federal crimes must be based on a statute of Congress.
10 Cf. the views of Mr. Justice Iredell in Calder v. Bull, 3 Dall. 386, 398, 1 L.Ed. 648 (1798).
11 It is not the Due Process Clause of the Fourteenth Amendment, standing alone, that requires my conclusion that that Amendment was intended to apply fully the protection of the Bill of Rights to actions by the States. That conclusion follows from the language
of the entire first section of the Fourteenth Amendment, as illuminated by the legislative history surrounding its adoption. See Adamson v. California, supra, 32 U.S., at 71-75, 92-123, 67 S.Ct., at 1686-1688, 1696-1711.
Mr. Justice Harlan continues to insist that uncontroverted scholarly research shows that the Fourteenth Amendment did not incorporate the Bill of Rights as limitations on the States. See Poe v. Ullman, 367 U.S. 497, 540, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961) (dissenting opinion); Griswold v. Connecticut, supra, 381 U.S., at 500, 85 S.Ct., at 1690 (concurring in judgment); ante, at 372-373, n. 5. I cannot understand that conclusion. Mr. Fairman, in the article repeatedly cited by Mr. Justice Harlan, surveys the legislative history and concludes that it is his opinion that the amendment did not incorporate the Bill of Rights. Mr. Flack, in at least an equally 'scholarly' writing, surveys substantially the same documents relied upon by Mr. Fairman and concludes that a prime objective of Congress in proposing the adoption of the Fourteenth Amendment was '(t)o make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.' Compare H. Flack, The Adoption of the Fourteenth Amendment 95 (1908), with Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). It is, of course, significant that since the adoption of the Fourteenth Amendment this Court has held almost all the provisions of the Bill of Rights applicable to the States: the First Amendment, e.g., Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); the Fifth Amendment, Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); the Sixth Amendment Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and the Eighth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). To me this history indicates that in the end Mr. Flack's thesis has fared much better than Mr. Fairman's 'uncontroverted' scholarship.
12 See J. Frank, The Levellers (1955).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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