ADAMSON v. CALIFORNIA 332 U.S. 46 (1947)

By a 5–4 vote the Supreme Court, speaking through Justice stanley f. reed, sustained the constitutionality of provisions of California laws permitting the trial court and prosecutor to call the jury's attention to the accused's failure to explain or deny evidence against him. Adamson argued that the Fifth Amendment's right against self-incrimination is a fundamental national privilege protected against state abridgment by the fourteenth amendment and that the same amendment's due process clause prevented comment on the accused's silence. Reed, relying on twining v. new jersey (1908) and palko v. connecticut (1937), ruled that the Fifth Amendment does not apply to the states and that even adverse comment on the right to silence does not deny due process.

The case is notable less for Reed's opinion, which griffin v. california (1965) overruled, than for the classic debate between Justices felix frankfurter, concurring, and hugo l. black, in dissent, on the incorporation doctrine. Joined by Justice william o. douglas, Black read the history of the origins of the Fourteenth Amendment to mean that its framers and ratifiers intended to make the entire bill of rights applicable to the states, a position that Justice frank murphy, joined by Justice wiley rutledge, surpassed by adding that the Fourteenth Amendment also protected unenumerated rights. Frankfurter, seeking to expose the inconsistency of the dissenters, suggested that they did not mean what they said. They would not fasten on the states the requirement of the seventh amendment that civil cases involving more than $20 require a trial by jury. They really intended only a "selective incorporation," Frankfurter declared, and consequently they offered "a merely subjective test." Black, in turn, purporting to be quite literal in his interpretation, ridiculed Frankfurter's subjective reliance on "civilized decency" to explain due process. History probably supports Frankfurter's argument on the original intent of the Fourteenth Amendment, but the Justices on both sides mangled the little historical evidence they knew to make it support preconceived positions.

Leonard W. Levy
(1986)