John Marshall Harlan: Dissent in Hurtado v. California

John Marshall Harlan served thirty-three years, ten months, and four days on the U.S. Supreme Court, one of the longest tenures of all who have sat on the high bench. During that period, he wrote his share of opinions for the Court majority. Yet he is best remembered for his dissents—for their passion, for their prescience, and for the sheer fact that the most significant among them, those concerning civil rights, were written by a southerner and former slaveholder. Harlan’s passion for the Constitution led him to fight for the Union during the Civil War; it may also have accounted for his expansive reading of the Civil War Amendments, particularly the Fourteenth Amendment.

In the case of Hurtado v. California (1884), Joseph Hurtado, who had been tried and found guilty of killing his wife’s lover, appealed his sentence of death on the ground of the due process clause of the Fourteenth Amendment, which made the Fifth Amendment right to a hearing before a grand jury applicable to state as well as federal trials for capital crimes.The Supreme Court rejected this argument. Dissenting in his Opinion in Hurtado v. California, Harlan laid out the rudiments of the incorporation doctrine (the theory that the Fourteenth Amendment incorporates most of the Bill of Rights, making it applicable at the state level); more than fifty years passed before Justice Hugo Black developed the doctrine into mainstream constitutional law.