John Marshall Harlan: Dissent in Hurtado v. California

Explanation and Analysis of the Document

Hurtado is a case about due process as it applies to a state criminal trial. The defendant, Joseph Hurtado, was accused of having fatally shot his wife's lover. Despite being accused of a capital crime, Hurtado was not indicted by a grand jury. The rules operating in California criminal courts at the time allowed him to be tried simply on the basis of “information”—in essence, a charge filed by the district attorney acting on his own authority. After the information was examined by a magistrate, who found it sufficient to permit the trial to move forward, Hurtado was tried, found guilty, and sentenced to death. Hurtado appealed his sentence, first to the California Supreme Court and then to the U.S. Supreme Court, on the ground that it violated his right under the Fifth Amendment to a hearing before a grand jury. The mechanism whereby this protection applied to him, he argued, could be found in the due process clause of the Fourteenth Amendment, which made this Fifth Amendment protection applicable to state as well as federal trials for capital crimes.

Writing for the Court majority, Justice Stanley Matthews declared that the framers of the Fourteenth Amendment had not intended to guarantee a grand jury to state criminal defendants; if such had been their intent, they would have specified as much. What is more, Matthews wrote, Hurtado's right to due process had not been violated, as presenting information is a preliminary proceeding. The actual trial where Hurtado had been found guilty had been fair.

Harlan, once again voicing a lone dissent, objected to the majority's interpretation of the framers' intent. Diluting the requirement of a grand jury in circumstances such as Hurtado's to any legal proceeding enforced by public authority did not square with Harlan's sense of constitutional integrity. The only change to the Founders' plan for the nation was fulfillment of their vision by nationalizing the Constitution's standard of rights. At the time Hurtado was making its way through the courts, a movement among legal professionals was calling for an end to the cumbersome grand jury system. For Harlan, this notion had the potential to undermine the whole structure of republican government, with its emphasis on popular participation in decision making.

As a foundation for his argument, Harlan opens with a thorough rehearsal of the history of due process in English law, beginning with the Magna Carta in the thirteenth century. He illustrates that participation of the people in the administration of justice is a time-honored and indispensable part of English common law, which provided the drafters of the Constitution with their frame of reference. Informal instruments such as the information used to bring Hurtado to trial were, Harlan shows, traditionally frowned upon in the context of capital crimes. If the right to a grand jury were not fundamental in serious criminal cases, he says, the Fifth Amendment would not have required the federal government to provide one for federal defendants suspected, like Hurtado, of having committed heinous crimes. Substituting information for a grand jury was not progress, not an acceptable new method of ensuring due process, but a violation of the Founders' original vision for the Republic.

Harlan's argument was sound, but it was subject to one obvious objection: From the beginning, American criminal procedure had been almost exclusively a state matter. And well into the next century, the majority's position in Hurtado—that the Fourteenth Amendment did not oblige the states to honor Fifth Amendment guarantees—was not questioned. Eventually, however, because of events such as the Red scare (the fear of Communism) during World War I and an epidemic of lynchings of blacks in the South, the American public became uncomfortable with the justice system's lack of federal oversight. With the burgeoning of the civil rights movement at midcentury, pressure to nationalize the Bill of Rights—as Harlan had argued for—increased. With the Court's adoption and expansion of the incorporation doctrine under the leadership of Chief Justice Earl Warren in the 1950s and 1960s, most of the guarantees of the Bill of Rights were, in fact, applied to the states. Hurtado itself remains good law, such that criminal defendants—even those accused of capital offenses—can still be tried in state courts without having first been indicted by grand jury. Nonetheless, it can be argued that Justice Harlan's dissent in the case contributed greatly to the national debate that led to what has come to be known as the “due process revolution.”