John Marshall Harlan: Dissent in Hurtado v. California

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According to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the “law of the land” or with “due process of law.” Such was the understanding of the patriotic men who established free institutions upon this continent. Almost the identical words of Magna Charta were incorporated into most of the state constitutions before the adoption of our national constitution. When they declared, in substance, that no person shall be deprived of life, liberty, or property except by the judgment of his peers or the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles.

My brethren concede that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no state can violate consistently with that due process of law required by the fourteenth amendment in proceedings involving life, liberty, or property. Some of these principles are enumerated in the opinion of the court. But for reasons which do not impress my mind as satisfactory, they exclude from that enumeration the exemption from prosecution, by information, for a public offense involving life. By what authority is that exclusion made?… If it be supposed that immunity from prosecution for a capital offense, except upon the presentment or indictment of a grand jury, was regarded at the common law any less secured by the law of the land, or any less valuable, or any less essential to due process of law, than the personal rights and immunities just enumerated, I take leave to say that no such distinction is authorized by any adjudged case, determined in England or in this country prior to the adoption of our constitution, or by any elementary writer upon the principles established by Magna Charta and the statutes subsequently enacted in explanation or enlargement of its provisions.

But it is said that the framers of the constitution did not suppose that due process of law necessarily required for a capital offense the institution and procedure of a grand jury, else they would not in the same amendment prohibiting the deprivation of life, liberty, or property without due process of law, have made specific and express provision for a grand jury where the crime is capital or otherwise infamous; therefore, it is argued, the requirement by the fourteenth amendment of due process of law in all proceedings involving life, liberty, and property, without specific reference to grand juries in any case whatever, was not intended as a restriction upon the power which it is claimed the states previously had, so far as the express restrictions of the national constitution are concerned, to dispense altogether with grand juries. This line of argument … would lead to results which are inconsistent with the vital principles of republican government. If the presence in the fifth amendment of a specific provision for grand juries in capital cases … is held to prove that “due process of law” did not, in the judgment of the framers of the constitution, necessarily require a grand jury in capital cases, inexorable logic would require it to be likewise held that the right not to be put twice in jeopardy of life and limb, for the same offense, nor compelled in a criminal case to testify against one’s self,—rights and immunities also specifically recognized in the fifth amendment—were not protected by that due process of law required by the settled usages and proceedings existing under the common and statute law of England at the settlement of this country.… It seems to me that too much stress is put upon the fact that the framers of the constitution made express provision for the security of those rights which at common law were protected by the requirement of due process of law, and, in addition, declared, generally, that no person shall “be deprived of life, liberty, or property without due process of law.” The rights, for the security of which these express provisions were made, were of a character so essential to the safety of the people that it was deemed wise to avoid the possibility that congress … would impair or destroy them. Hence, their specific enumeration in the earlier amendments of the constitution, in connection with the general requirement of due process of law.…

It is said by the court that the constitution of the United States was made for an undefined and expanding future, and that its requirement of due process of law, in proceedings involving life, liberty, and property, must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progress and improvement in the law of criminal procedure.…

When the fourteenth amendment was adopted all the states of the Union … declared, in their constitution, that no person shall be deprived of life, liberty, or property otherwise than “by the judgment of his peers or the law of the land,” or “without due process of law.” When that amendment was adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights, enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the legislative department.… It may be safely affirmed that, when that amendment was adopted, a criminal prosecution, by information, for a crime involving life, was not permitted in any one of the states composing the Union. So that the court, in this case, while conceding that the requirement of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized, when the fourteenth amendment was adopted, in the bill of rights or constitution of every state in the Union, is yet not a fundamental principle in governments established, as those of the states of the Union are, to secure to the citizen liberty and justice, and therefore is not involved in due process of law as required by that amendment in proceedings conducted under the sanction of a state. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.