have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments.

In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress, and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

We are of opinion that the provision in the fifth amendment to the Constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the General Assembly of Maryland, given in evidence by the defendants at the trial of this cause in the court of that State, and the Constitution of the United States.

Malloy v. Hogan 378 U.S. 1 (1964)

The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment's adoption in 1868.

Although many Justices have deemed the Amendment to incorporate all eight of the Amendments,2 the view which has thus far prevailed dates

from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use.3 It was on the authority of that decision that the Court said in 1908 in Twining v. New Jersey, supra, that "it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law." 211 U.S., at 99.

The Court has not hesitated to re-examine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme. Thus, although the Court as late as 1922 said that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about 'freedom of speech'...," Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, three years later Gitlow v. New York, 268 U.S. 652, initiated a series of decisions which today hold immune from state invasion every First Amendment protection for the cherished rights of mind and spirit-the freedoms of speech, press, religion, assembly, association, and petition for redress of grievances.

Similarly, Palko v. Connecticut, 302 U.S. 319, decided in 1937, suggested that the rights secured by the

2Ten Justices have supported this view. See Gideon v. Wainwright, 372 U.S. 335, 346 (opinion of MR. JUSTICE DOUGLAS). The Court expressed itself as unpersuaded to this view in In re Kemmler, 136 U.S. 436, 448-449; McElvaine v. Brush, 142 U.S. 155, 158-159; Maxwell v. Dow, 176 U.S. 581, 597-598; Twining v. New Jersey, supra, p. 96. See Spies v. Illinois, 123 U.S. 131. Decisions that particular guarantees were not safeguarded against state action by the Privileges and Immunities Clause or other provision of the Fourteenth Amendment are: United States v. Cruikshank, 92 U.S. 542, 551; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (First Amendment); Presser v. Illinois, 116 U.S. 252, 265 (Second Amendment); Weeks v. United States, 232 U.S. 383, 398 (Fourth Amendment); Hurtado v. California, 110 U.S. 516, 538 (Fifth Amendment requirements of grand jury indictments); Palko v. Connecticut, 302 U.S. 319, 328 (Fifth Amendment double jeopardy); Maxwell v. Dow, supra, at 595 (Sixth Amendment jury trial); Walker v. Sauvinet, 92 U.S. 90, 92 (Seventh Amendment jury trial); In re Kemmler, supra; McElvaine v. Brush, supra; O'Neil v. Vermont, 144 U.S. 323, 332 (Eighth Amendment prohibition against cruel and unusual punishment).

3In Barron v. Baltimore, 7 Pet. 243, decided before the adoption of the Fourteenth Amendment, Chief Justice Marshall, speaking for the Court, held that this right was not secured against state action by the Fifth Amendment's provision: "Nor shall private property be taken for public use, without just compensation."

Fourth Amendment were not protected against state action, citing, 302 U.S., at 324, the statement of the Court in 1914 in Weeks v. United States, 232 U.S. 383, 398, that "the Fourth Amendment is not directed to individual misconduct of [state] officials." In 1961, however, the Court held that in the light of later decisions, it was taken as settled that ". . . the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth..." Mapp v. Ohio, 367 U.S. 643, 655. Again, although the Court held in 1942 that in a state prosecution for a noncapital offense, “appointment of counsel is not a fundamental right," Betts v. Brady, 316 U.S. 455, 471; cf. Powell v. Alabama, 287 U.S. 45, only last Term this decision was

5See Wolf v. Colorado, 338 U.S. 25, 27-28; Elkins v. United States, 364 U.S. 206, 213.

Discussion Notes

1. On the incorporation of Bill of Rights provisions into the due process clause of the Fourteenth Amendment, thus making them applicable to the states, see Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties (Madison, Wis. 1981).

2. Would federal constitutional rights, developed in cases involving the federal government, have to be applied identically against the states when such rights are incorporated? Robert F. Williams, "In the Supreme Court's Shadow: Legiti

Perry v. Louisiana 461 U.S. 961 (1983)

Opinion of JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE POWELL join, respecting the denial of the petitions for writs of certiorari.

My vote to deny certiorari in these cases does not reflect disagreement with JUSTICE MARSHALL'S appraisal of the importance of the underlying issuewhether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they will be biased in favor of other members of the same group. I believe that further consideration of the substantive and procedural ramifications of the problem by other courts will en

re-examined and it was held that provision of counsel in all criminal cases was "a fundamental right, essential to a fair trial," and thus was made obligatory on the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 343-344.6

We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States. Decisions of the court since Twining and Adamson have departed from the contrary view expressed in those cases.

See also Robinson v. California, 370 U.S. 660, 666, which, despite In re Kemmler, supra; McElvaine v. Brush, supra; O'Neil v. Vermont, supra, made applicable to the States the Eighth Amendment's ban on cruel and unusual punishments.

macy of State Rejection of Supreme Court Reasoning and Result," South Carolina Law Review 35 (Spring 1984): 391-96.

3. Concerning the question of whether the incorporation doctrine is a correct interpretation of the Fourteenth Amendment, see Alfed W. Meyer, "The Blaine Amendment and the Bill of Rights," Harvard Law Review 64 (April 1951): 939; and Charles Fairman and Stanley Morrison, "Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding," Stanford Law Review 2 (December 1949): 5, 140. See also Adamson v. California, 332 U.S. 46 (1947).

able us to deal with the issue more wisely at a later date. There is presently no conflict of decision within the federal system. During the past five years, two State Supreme Courts have held that a criminal defendant's rights under state constitutional provisions are violated in some circumstances by the prosecutor's use of peremptory challenges to exclude members of particular racial, ethnic, religious, or other groups from the jury. People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E. 2d 499, cert. denied, 444 U.S. 881 (1979). That premise, understandably, has given rise to litigation addressing both procedural and substantive problems associated with judicial review of peremptory challenges, which had traditionally been final and unreviewable. . . . In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court.

Gilliard v. Mississippi

464 U.S. 867 (1983)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

For the third time this year, this Court has refused to review a case in which an all-white jury has sentenced a Negro defendant to death after the prosecution used peremptory challenges to remove all Negroes from the jury. See Miller v. Illinois and Perry v. Louisiana decided together with McCray v. New York, 461 U.S. 961 (1983) (MARSHALL, J., dissenting from denial of certiorari). The facts of each case follow a now-familiar pattern: For cause challenges by both defense counsel and the prosecution leave an integrated jury panel. The prosecution then resorts to peremptory challenges to remove Negro members of the panel. Despite defense counsel efforts to show that the prosecution has excluded jurors on the basis of race, the trial court rules that defendant has failed to establish systematic exclusion in the manner required by this Court in Swain v. Alabama, 380 U.S. 202 (1965). The all-white jury proceeds to hear the case and sentence the Negro defendant to death.

I write today to address those of my colleagues who agree with me that the use of peremptory challenges in these cases presents important constitutional questions, but believe that this Court should postpone consideration of the issue until more State Supreme Courts and federal circuits have experimented with substantive and procedural solutions to the problem. Although I appreciate my colleagues' inclination to delay until a consensus emerges on how best to deal with misuse of peremptory challenges, I believe that for the Court to indulge that inclination on this occasion is inappropriate and ill-advised.

When Justice Brandeis originally analogized the States to laboratories in need of freedom to experiment, he was dissenting from a decision by the Court applying a now-discredited interpretation of the Due Process Clause to strike down an Oklahoma statute regulating the sale and distribution of ice. See New State Ice Co. v. Liebmann, 285 U.S. 262, 310-311 (1932). As Justice Brandeis recognized, an overly protective view of substantive due process unnecessarily stifles public welfare legislation at the state level. Since then, however, the power of the States-as-labo

ratories metaphor has propelled Justice Brandeis' concept far beyond the sphere of social and economic regulation. Now we find the metaphor employed to justify this Court's abstention from reaching an important issue involving the rights of individual defendants under the Federal Constitution.

When a majority of this Court suspects that such rights are being regularly abridged, the Court shrinks from its constitutional duty by awaiting developments in state or other federal courts. Because abuse of peremptory challenges appears to be most prevalent in capital cases, the need for immediate review in this Court is all the more urgent. If we postpone consideration of the issue much longer, petitioners in this and similar cases will be put to death before their constitutional rights can be vindicated. Under the circumstances, I do not understand how in good conscience we can await further developments, regardless of how helpful those developments might be to our own deliberations.

Moreover, I have serious misgivings about my colleagues' assumption that many States will, in the foreseeable future, engage in meaningful reconsideration of the discriminatory use of peremptory challenges. In the area of individual rights, state courts traditionally have looked to the federal judiciary for leadership. When decisions of this Court have expanded personal liberties in an area, state judiciaries have followed and, upon occasion, interpreted state constitutional liberties to exceed those guaranteed by the Federal Constitution. But, conversely, when this Court has announced a clearly defined, but limited, federal constitutional protection for a particular right, the State Supreme Courts have been less willing to develop more generous doctrines under their own State Constitutions.

Constitutional limitations on prosecutorial use of peremptory challenges are a clear example of how a limiting precedent in this Court inhibits doctrinal development in the States. In 1965 in Swain v. Alabama, a majority of this Court held that the prosecution is free to use peremptory challenges to remove Negroes from the jury in any given case so long as the prosecution does not remove Negroes from juries “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim." 380 U.S., at 223. Even though Swain v. Alabama has been roundly and regularly criticized by commentators, see sources cited in McCray v. New York, supra, at 964-965, n. 1 (MARSHALL, J., dissenting), in the 18 years since Swain was decided only two State Supreme Courts have interpreted their State Constitutions to provide criminal defendants greater protection against discriminatory use of peremptory challenges. People v. Wheeler, 22 Cal. 3d 258, 583 P.

2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979).

Contrary to my colleagues' assumptions, these two recent decisions by the California and Massachusetts high courts have not inspired other State Supreme Courts to deviate from the rule of Swain and experiment with new remedies for peremptory challenge misuse. To my knowledge, in the five years since Wheeler and Soares, not a single State Supreme Court has imposed state constitutional limits on peremptory challenges. In fact, over the same period, at least 19 jurisdictions have considered the issue and, following

Discussion Notes

1. What factors seemed to convince the United States Supreme Court to move slowly in this area? Would those factors have been present in cases against the federal government?

2. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States struck down the practice of us

Swain, reaffirmed their view that the exclusion of Negroes by peremptory challenges is constitutional in the absence of evidence of systematic exclusion.

While this Court attends the Brandeisian experiments in a handful of state courts, criminal defendants in Mississippi and numerous other States have no legal remedy for what a majority of this Court agrees may well be a constitutional defect in the jury selection process. Under the circumstances, I cannot abide by further delay. I would grant the petition.

ing peremptory challenges to exclude jurors on racial grounds.

3. After Batson, could state courts still rely on state constitutional grounds in dealing with this problem? See State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986).

William J. Brennan, Jr., "State Constitutions and the Protection of Individual Rights"

Harvard Law Review 90 (January 1977): 489. © 1977 Harvard Law Review. Reprinted by permission.

In recent years, however, another variety of federal law-that fundamental law protecting all of us from the use of governmental powers in ways inconsistent with American conceptions of human liberty-has dramatically altered the grist of the state courts. Over the past two decades, decisions of the Supreme Court of the United States have returned to the fundamental promises wrought by the blood of those who fought our War between the States, promises which were thereafter embodied in our fourteenth amendment-that the citizens of all our states are also and no less citizens of our United States, that this birthright guarantees our federal constitutional liberties against encroachment by governmental action at any level of our federal system, and that each of us is entitled to due process of law and the equal protection of the laws from our state governments no less than from our national one. Although courts do not today substitute their personal economic beliefs for the judgments of our democratically elected legislatures,' Supreme Court decisions under the fourteenth amendment have significantly affected virtually every other area, civil and criminal, of state

1Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). [But see Chapter 3, Section E.]

action. And while these decisions have been accompanied by the enforcement of federal rights by federal courts, they have significantly altered the work of state court judges as well. This is both necessary and desirable under our federal system-state courts no less than federal are and ought to be the guardians of our liberties.

But the point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law for without it, the full realization of our liberties cannot be guaranteed.

The essential point I am making, of course, is not that the United States Supreme Court is necessarily wrong in its interpretation of the federal Constitution, or that ultimate constitutional truths invariably come prepackaged in the dissents, including my own, from decisions of the Court. It is simply that the decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law.83 Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them.

83 The Court has made this point clear on a number of occasions. See Oregon v. Hass, 420 U.S. 714,719 (1975) (“. . . a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards"); Cooper v. California, 386 U.S. 58, 62 (1967).