When the Supreme Court refrained from incorporating the Fifth Amendment’s protection against double jeopardy into the due process clause of the Fourteenth Amendment, Justice Benjamin Cardozo’s opinion for the Court articulated the influential “fundamental fairness” standard of selective incorporation.

The state of Connecticut indicted a man named Palko for the capital offense of first-degree murder, but the jury convicted him only of second-degree murder and sentenced him to life imprisonment. Connecticut’s constitution and laws permitted a second trial, and the state again tried and convicted him, this time for the more serious capital offense. In the same circumstances, the federal government would not have been allowed to retry Palko because of the Fifth Amendment’s ban on double jeopardy. Facing execution, Palko appealed, arguing that the due process clause of the Fourteenth Amendment incorporated the double jeopardy ban, thereby making it applicable to the states.Cardozo, Benjamin N.;Palko v. ConnecticutCardozo, Benjamin N.;Palko v. Connecticut

By an 8-1 vote, however, the Supreme Court disagreed, finding against Palko. In the opinion for the Court, Justice Benjamin N. Cardozo ruled that the Fourteenth Amendment’s due process clause did not include the Fifth Amendment’s principle that no person can be tried twice for the same offense. His opinion was noteworthy primarily because of its proposal for a “fundamental fairness” standard of selective incorporation as a basis for deciding which provisions of the Bill of Rights would apply to the states. In his words, the standard was whether a particular right “represented the very essence of a scheme of ordered liberty” and whether it was a “principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” In subsequent years, the majority of the justices would adopt Cardozo’s Palko standard. Although Palko was executed, decades later in Benton v. Maryland[c]Benton v. Maryland (1969) the Court would utilize this standard in reversing the Palko ruling, thereby making the prohibition on double jeopardy one of the provisions in the Bill of Rights that is binding on the states.

Cardozo, Benjamin N.

Double jeopardy

Due process, procedural

Fifth Amendment

Fourteenth Amendment

Fundamental rights

Incorporation doctrine

Jury, trial by