The Constitution of the United States of America: Analysis and Interpretation Part 209

[949] Ibid. 105, 106, 107, 108, 118.--In a dissent, in which Justices Brandeis, Butler, and Sutherland concurred, Justice Roberts insisted that "it * * * [was] not a matter of a.s.sumption but a certainty * * *

[that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." Even if "the result would have been the same had the [accused] been present, still the denial of the const.i.tutional right ought not to be condoned. * * * Nor ought this Court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused is to beg the const.i.tutional question involved. * * * The guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."--Ibid. 130-131, 134, 136-137.

[950] 337 U.S. 241 (1949).

[951] Ibid. 246-247, 249-250.--Dissenting, Justice Murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"--Ibid. 253. Justice Rutledge dissented without an opinion.

[952] 339 U.S. 9 (1950).

[953] Ibid. 12-13.--Disagreeing, Justice Frankfurter contended that a State is "precluded by the due process clause from executing a man who has temporarily or permanently become insane"; and thus bereft of unlimited discretion as to "how it will ascertain sanity," a State "must afford rudimentary safeguards for establishing [that] fact."--Ibid. 16, 19, 21, 24-25.

[954] In re Oliver, 333 U.S. 257 (1948). On application for _habeas corpus_, the prisoner's commitment was reviewed by the Michigan appellate court in the light, not of the whole record, but only of fragmentary excerpts showing merely the testimony alleged to be false and evasive.

In a concurring opinion, Justice Rutledge advocated disposing of the case on the ground that the Michigan one-man grand jury system was in its entirety in conflict with the requirements of due process.

On the ground that the Michigan courts had not pa.s.sed on the const.i.tutionality of the procedure at issue, Justices Frankfurter and Jackson dissented and urged the remanding of the case. _See also_ Gaines _v._ Washington, 277 U.S. 81, 85 (1928).

[955] 336 U.S. 155 (1949).

[956] Justice Douglas, with Justice Black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and att.i.tude * * * [had] a contemptuous flavor. *

* * freedom of speech should [not] be so readily sacrificed in a courtroom." Stressing that the trial judge penalized Fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the Texas appellate court to settle the issue whether such comment was improper under Texas practice, Justice Douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." There having been no substantial obstruction of the trial, Justice Murphy believed that the trial judge's use of his power was inconsistent with due process; whereas Justice Rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."--Ibid. 165-166, 167, 169.

[957] Tumey _v._ Ohio, 273 U.S. 510 (1927). _See also_ Jordan _v._ Ma.s.sachusetts, 225 U.S. 167, 176 (1912).

[958] "Unless the costs usually imposed are so small that they may be properly ignored as within the maxim _de minimis non curat lex_."--_See_ Tumey _v._ Ohio, 273 U.S. 510, 523, 531 (1927).

[959] Dugan _v._ Ohio, 277 U.S. 61 (1928).

[960] Frank _v._ Mangum, 237 U.S. 309, 335 (1915).

[961] Moore _v._ Dempsey, 261 U.S. 86, 91 (1923).

[962] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946). _See also_ Fay _v._ New York, 332 U.S. 261 (1947), _supra_ p. 1110. [Transcriber's Note: Reference is to Footnote 873, above.]

[963] Snyder _v._ Ma.s.sachusetts, 291 U.S. 97, 116, 117 (1934).

[964] Lisenba _v._ California, 314 U.S. 219, 236 (1941).

[965] Buchalter _v._ New York, 319 U.S. 427, 429 (1943). The Court also declared that the due process clause did "not draw to itself the provisions of State const.i.tutions or State laws."

[966] Powell _v._ Alabama, 287 U.S. 45, 68 (1932); Snyder _v._ Ma.s.sachusetts, 291 U.S. 97, 105 (1934).

[967] Cole _v._ Arkansas, 333 U.S. 196, 202 (1948). _See also_ Williams _v._ North Carolina, 317 U.S. 287, 292 (1942), wherein the Court also stated that where a conviction in a criminal prosecution is based upon a general verdict that does not specify the ground on which it rests, and one of the grounds upon which it may rest is invalid under the Const.i.tution, the judgment cannot be sustained.

[968] Paterno _v._ Lyons, 334 U.S. 314, 320-321 (1948).

[969] McKane _v._ Durston, 153 U.S. 684 (1894).--The prohibition of the requirement of excessive bail, expressed in the Eighth Amendment as a restraint against the Federal Government, has never been deemed to be applicable to the States by virtue of the due process clause of the Fourteenth Amendment. However, in a recent civil suit, a United States District Court judge a.s.serted his belief, by way of dictum, that protection against "unreasonable searches and seizures, invasion of freedom of speech and press, unlawful and unwarranted incarcerations, arrests, and _failure to allow reasonable bail_ would all be fundamental rights protected by [the Fourteenth] Amendment from State invasion."--International Union, Etc. _v._ Tennessee Copper Co., 31 F.

Supp. 1015 (1940).

[970] Collins _v._ Johnston, 237 U.S. 502, 510 (1915).--In affirming a judgment obtained by Texas in a civil suit to recover penalties for violation of its ant.i.trust law, the Supreme Court proffered the following vague standard for determining the validity of penalties levied by States. "The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the State.

We can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law."

However, a fine of $1,600,000 levied in this case against a corporation having a.s.sets of $40,000,000 and paying out dividends as high as 700%, and which was shown to have profited from its wrong doing was not considered to be excessive.--Waters-Pierce Oil Co. _v._ Texas, 212 U.S.

86, 111 (1909).

[971] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912). _See also_ Ughbanks _v._ Armstrong, 208 U.S. 481, 498 (1908).

[972] 136 U.S. 436, 447-448 (1890).

[973] 329 U.S. 459 (1947).

[974] Concurring in the result, Justice Frankfurter concentrated on the problem suggested by the proposed absorption of the Bill of Rights by the due process clause of the Fourteenth Amendment, and restated his previously disclosed position as follows: "Not until recently was it suggested that the Due Process Clause of the Fourteenth Amendment was merely a compendious reference to the Bill of Rights whereby the States were now restricted in devising and enforcing their penal code precisely as is the Federal Government by the first eight amendments. On this view, the States would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century. Some of these safeguards have perduring validity. Some grew out of transient experience or formulated remedies which time might well improve. The Fourteenth Amendment did not mean to imprison the States into the limited experience of the eighteenth century. It did mean to withdraw from the States the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom.

"These are very broad terms by which to accommodate freedom and authority. As has been suggested * * *, they may be too large to serve as the basis for adjudication in that they allow much room for individual notions of policy. That is not our concern. The fact is that the duty of such adjudication on a basis no less narrow has been committed to this Court.

"In an impressive body of decisions this Court has decided that the Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights. They neither contain the particularities of the first eight amendments nor are they confined to them. * * * Insofar as due process under the Fourteenth Amendment requires the States to observe any of the immunities 'that are as valid as against the Federal Government by force of the specific pledges of particular amendments' it does so because they 'have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States,'" [citing Palko _v._ Connecticut, 302 U.S. 319, 324, 325 (1937).]--Ibid. 467-469.

Justice Burton, with whom Justices Murphy, Douglas, and Rutledge were a.s.sociated, dissented on the grounds that "the proposed repeated, and at least second, application to the * * * [defendant] of an electric current sufficient to cause death is * * *, a cruel and unusual punishment violative of due process of law."--Ibid. 479.

In Solesbee _v._ Balkcom, 339 U.S. 9 (1950), the Court declined to intervene in case coming up from Georgia in which appellant, claiming that he had become insane following conviction and sentence of death, sought a postponement of execution from the governor of the State.

Justice Frankfurter dissented, a.s.serting that the due process clause of Amendment XIV prohibits a State from executing an insane convict.

[975] 187 U.S. 71, 86 (1902). _See also_ Keerl _v._ Montana, 213 U.S.

135 (1909).

[976] 177 U.S. 155 (1900).

[977] 207 U.S. 188 (1907).

[978] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912).

[979] 302 U.S. 319 (1937).

[980] In a lengthy dictum, Justice Cardozo, speaking for the Court, rejected the defendant's view that "Whatever would be a violation of the original bill of rights (Amendments One to Eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." By a selective process of inclusion and exclusion, he conceded that "the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, * * * or the like freedom of the press, * * * or the free exercise of religion, * * * or the right of peaceable a.s.sembly * * *, or the right of one accused of crime to the benefit of counsel." However, insofar as such "immunities, [which] are valid as against the Federal Government by force of the specific pledges of particular amendments, have become valid as against the States," that result is attributable, not to the absorption by the due process clause of the Fourteenth Amendment of particular provisions of the Bill of Rights, but to the fact that such immunities "have been found to be implicit in the concept of ordered liberty * * *" protected by that clause.--Ibid. 323, 324-325.

[981] Justice Butler dissented without an opinion.

[982] 320 U.S. 459, 462, 463 (1947).--In line with its former ruling in Graham _v._ West Virginia, 224 U.S. 616 (1912), the Court reiterated in Gryger _v._ Burke, 334 U.S. 728 (1948), that a life sentence imposed on a fourth offender under a State habitual criminal act is a stiffened penalty for his latest offense, which is considered to be an aggravated offense because a repet.i.tive one, and is therefore not invalid as subjecting the offender to a new jeopardy.

[983] Ex parte Hull, 312 U.S. 546 (1941).

[984] White _v._ Ragen, 324 U.S. 760 n. 1 (1945).

[985] McKane _v._ Durston, 153 U.S. 684, 687 (1894); Andrews _v._ Swartz 156 U.S. 272, 275 (1895); Murphy _v._ Ma.s.sachusetts, 177 U.S. 155, 158 (1900); Reetz _v._ Michigan, 188 U.S. 505, 508 (1903).

[986] Thus, where on the day a.s.signed for hearing of a writ of error, it appeared that the accused had escaped from jail, the Court, without denial of due process, could order that the writ be dismissed unless the accused surrender himself within 60 days or be captured.--Allen _v._ Georgia, 166 U.S. 138 (1897).

[987] Carter _v._ Illinois, 329 U.S. 173, 175-176 (1946).

[988] Frank _v._ Mangum, 237 U.S. 309 (1915).