# Cohen v. Hurley/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Douglas Brennan
United States Supreme Court
366 U.S. 117
Cohen v. Hurley
Argued: Dec. 14 and 15, 1960. --- Decided: April 24, 1961
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE joins, dissenting.
I would reverse because I think that the petitioner was protected by the immunity from compulsory self-incrimination guaranteed by the Fifth Amendment, which in my view is absorbed by the Fourteenth Amendment, and therefore is secured against impairment by the States.
In Barron v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672, decided in 1833, the Court held that it was without jurisdiction to review a judgment of the Maryland Court of Appeals which denied an owner compensation for his private property taken for public use. Chief Justice Marshall wrote that, contrary to the contention of the owner, 'the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.' This, he said, was because the first eight Amendments 'contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them.' 7 Pet., at pages 250-251. For over a quarter of a century after the adoption of the Fourteenth Amendment in 1868, this holding was influential in many decisions of the Court which rejected arguments for the application to the States of one after another of the specific guarantees included in the Federal Bill of Rights. See Knapp v. Schweitzer, 357 U.S. 371, 378-379, note 5, 78 S.Ct. 1302, 1306-1307, where the cases are collected.
In 1897, however, the Court decided Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979. That case also challenged the constitutionality of a judgment of a State Supreme Court, that of Illinois, alleged to have sustained a taking of private property for public purposes without just compensation. But the property owner could now invoke the Fourteenth Amendment against the State. The Court held that the claim based on that Amendment was cognizable by the Court. On the merits, the first Mr. Justice Harlan wrote, 'In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.' 166 U.S. at page 241, 17 S.Ct. at page 586. Thus the Court, in fact if not in terms, applied the Fifth Amendment's just-compensation requirement to the States, finding in the Fourteenth Amendment a basis which Chief Justice Marshall in Barron found lacking elsewhere in the Constitution.
But if suitors in state cases who invoked the protection of individual guarantees of the Bill of Rights were no longer to be turned away by the Court with Marshall's summary 'This court cannot so apply them,' neither was the Court to give encouragement that all specifics in the federal list would be applied as was the Just Compensation Clause. Although there were Justices as early as 1892, see O'Neil v. Vermont, 144 U.S. 323, 337, 366, 12 S.Ct. 693, 698, 699 36 L.Ed. 450 (dissenting opinions), as there are Justices today, see dissent of Mr. Justice DOUGLAS herein and Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, (dissenting opinion), urging the view that the Fourteenth Amendment carried over intact the first eight Amendments as limitations on the States, the course of decisions has not so far followed that view. Additional specific guarantees have, however, been applied to the States. For example, while as recently as 1922, Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044, the Court had said that the Fourteenth Amendment did not make the protections of the First Amendment binding on the States, decisions since 1925 have extended against state power the full panoply of the First Amendment's protections for religion, speech, press, assembly, and petition. See, e.g., Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Bridges v. California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192. The view occasionally expressed that the freedom of speech and the press may be secured by the Fourteenth Amendment less broadly than it is secured by the First, see Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919 (dissenting opinion); Roth v. United States, 354 U.S. 476, 505 506, 77 S.Ct. 1304, 1319-1320, 1 L.Ed.2d 1498 (separate opinion); Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205 (separate opinion), has never persuaded even a substantial minority of the Court. Again, after saying in 1914 that 'the 4th Amendment is not directed to individual misconduct of (state) officials. Its limitations reach the Federal government and its agencies,' Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652, the Court held in 1949 that '(t)he security of one's privacy against arbitrary intrusion by the police * * * is * * * implicit in 'the concept of ordered liberty' and as such enforceable against the States * * *.' Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782; and see Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.
This application of specific guarantees to the States has been attended by denials that this is what in fact is being done. The insistence has been that the application to the States of a safeguard embodied in the first eight Amendments is not made 'because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.' Twining v. New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 20, 53 L.Ed. 97. In other words, due process is said to be infused with 'an independent potency' not resting upon the Bill of Rights, Adamson v. California, 332 U.S. 46, 66, 67 S.Ct. 1672, 1682 (concurring opinion). It is strange that the Court should not have been able to detect this characteristic in a single specific when it rejected the application to the States of virtually every one of them in the three decades following the adoption of the Fourteenth Amendment. Since '(f)ew phrases of the law are so elusive of exact apprehension as * * * (due process of law) * * * (and) * * * its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise,' Twining v. New Jersey, supra, 211 U.S. at pages 99 100, 29 S.Ct. at page 20, this formulation has been a convenient device for leaving the Court free to select for application to the States some of the rights specifically mentioned in the first eight Amendments, and to reject others. But surely it blinks reality to pretend that the specific selected for application is not really being applied. Mr. Justice Cardozo more accurately and frankly described what happens when he said in Palko v. Connecticut, 302 U.S. 319, 326, 58 S.Ct. 149, 152, 82 L.Ed. 288, that guarantees selected by the Court 'have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption. * * *' (Italics supplied.)
Many have had difficulty in seeing what justifies the incorporation into the Fourteenth Amendment of the First and Fourth Amendments which would not similarly justify the incorporation of the other six. Even if I assume, however, that, at least as to some guarantees, there are considerations of federalism-derived from our tradition of the autonomy of the States in the exercise of powers concerning the lives, liberty, and property of state citizens-which should overbear the weighty arguments in favor of their application to the States, I cannot follow the logic which applies a particular specific for some purposes and denies its application for others. If we accept the standards which justify the application of a specific, namely that it is 'of the very essence of a scheme of ordered liberty,' Palko v. Connecticut, supra, 302 U.S. at page 325, 58 S.Ct., at page 152, or is included among 'those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111, 120, 28 L.Ed. 232, or is among those personal immunities 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, surely only impermissible subjective judgments can explain stopping short of the incorporation of the full sweep of the specific being absorbed. For example, since the Fourteenth Amendment absorbs in capital cases the Sixth Amendment's requirement that an accused shall have the assistance of counsel for his defense, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, I cannot see how a different or greater interference with a State's system of administering justice is involved in applying the same guarantee in noncapital cases. Yet our decisions have limited the absorption of the guarantee to such noncapital cases as on their particular facts 'render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair * * *.' Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186, 93 L.Ed. 127; see also Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. But see McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 418, 5 L.Ed.2d 445 (concurring opinion). This makes of the process of absorption 'a license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights when state cases come before us,' which, I said in Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275, 80 S.Ct. 1463, 1470, 4 L.Ed.2d 1708 (dissenting opinion), I believe to be indefensible.
The case before us presents, for me, another situation in which the application of the full sweep of a specific is denied, although the Court has held that its restraints are absorbed in the Fourteenth Amendment for some purposes. Only this Term we applied, admittedly not in terms but nevertheless in fact, the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment to invalidate a state conviction obtained with the aid of a confession, however true, which was secured from the accused by duress or coercion. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; and see Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. And not too long ago we invalidated a state conviction for illegal possession of morphine based on evidence of two capsules which the accused had swallowed and then had been forced by the police to disgorge Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. But the Court today relies upon earlier statements that the immunity from compulsory self-incrimination is not secured by the Fourteenth Amendment against impairment by the States. These statements appear primarily in Twining v. New Jersey, supra, and Adamson v. California, supra. Those cases do not require the conclusion reached here. Neither involved the question here presented of the constitutionality of a penalty visited by a State upon a citizen for invoking the privilege. Both involved only the much narrower question whether comment upon a defendant's failure to take the stand in his own defense was constitutionally permissible.
However, all other reasons aside, a cloud has plainly been cast on the soundness of Twining and Adamson by our decisions absorbing the First and Fourth Amendments in the Fourteenth. There is no historic or logical reason for supposing that those Amendments secure more important individual rights. I need not rely only on Mr. Justice Bradley's famed statement in Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746, that compulsory self-incrimination 'is contrary to the principles of a free government. It is abhorrent to the instincts of an * * * American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' I may also call to my support the more current appraisal in the same vein in Ullmann v. United States, 350 U.S. 422, 426-428, 76 S.Ct. 497, 500-501, 100 L.Ed. 511. The privilege is rightly designated 'one of the great landmarks in man's struggle to make himself civilized.' Griswold, The Fifth Amendment Today, (1955) 7. But even without the support of these eminent authorities, I believe that the unanswerable case for absorption was stated by the first Mr. Justice Harlan in his dissent in Twining, supra, 211 U.S. at page 114, 29 S.Ct. at page 26. Therefore, with him, 'I cannot support any judgment declaring that immunity from self-incrimination is not * * * a part of the liberty guaranteed by the 14th Amendment against hostile state action.' Id., 211 U.S. at page 126, 29 S.Ct. at page 31. The degree to which the privilege can be eroded unless deterred by the Fifth Amendment's restraints is forcefully brought home in this case by the New York Court of Appeals' departure from its former precedents. See Judge Fuld's dissent, 7 N.Y. 488, 498, 199 N.Y.S.2d 658, 664, 166 N.E.2d 672, 677.
I would hold that the full sweep of the Fifth Amendment privilege has been absorbed in the Fourteenth Amendment. In that view the protection it affords the individual, lawyer or not, against the State, has the same scope as that against the National Government, and, under our decision in Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, the order under review should be reversed.

## Notes

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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