Hofstra Law Review


The question of the scope of the fourteenth amendment's due process clause has provoked one of the sharpest controversies on the Supreme Court during the past quarter century. The 1947 case of Adamson v. California, which marked the beginning of this sustained dispute, stands as a landmark in constitutional law, not because of the significance of the decision-which, after all, merely reaffirmed the much earlier decision in Twining v. New Jersey; nor the particular merit of Justice Reed's opinion for the Court-which, despite its technical excellence, was really cast from the same mold as a host of other, and more noteworthy, due process opinions; but for the high drama of its presentation of one of the great debates in the history of the Court, between two judicial giants, Justice Felix Frankfurter and Justice Hugo L. Black. The case brought to a boil a simmering dispute on the Court about the relationship of the due process clause and the federal Bill of Rights, reviving the heated debates along the same lines conducted half a century earlier between the first Justice Harlan and the rest of the Court. There were, however, important differences and consequences. While Harlan in his dissenting opinions on the subject invariably spoke only for himself, Black had made converts, and was able to muster four votes in support of his position. Moreover, while Harlan's role as solitary dissenter died with him-no other Justice then sitting took up his constitutional cudgels, and the issue became largely quiescent until revived again in the Adamson case-Black lived to see much of what he had advocated, in substance if not in form, become embedded in the nation's fundamental law. In this article I propose to reexamine the Black and Frankfurter opinions in Adamson, and evaluate their significance in the light of more recent developments in constitutional law. Coming on the heels of Black's greatest triumphs, some of these later decisions have, ironically enough, borne out Black's intense misgiving that unless the judiciary were able to place a ceiling above, as well as a floor below due process, that concept would, in the course of time, enable the Court once again to reassert the role it had played in the period 1890-1937, as a perpetual censor of legislation disagreeable to the judicial stomach, despite the lack of concrete, applicable constitutional language.

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