Master Landmark decision articulating selective incorporation and holding (then) that the Double Jeopardy Clause did not apply to the states, later overruled by Benton v. Maryland. with this comprehensive case brief.
Palko v. Connecticut is a cornerstone in the development of the selective incorporation doctrine under the Fourteenth Amendment's Due Process Clause. Decided in 1937, the case addressed whether the Double Jeopardy Clause of the Fifth Amendment binds the states. Writing for the Court, Justice Cardozo articulated the now-famous "ordered liberty" test, under which only those rights that are fundamental to the American scheme of justice are incorporated against the states. Applying that test, the Court concluded that the Double Jeopardy Clause was not, at that time, a fundamental right required of the states.
Although its specific holding was overturned in 1969 by Benton v. Maryland, Palko's analytic framework profoundly influenced constitutional law. It marked a departure from both "no incorporation" and "total incorporation," offering instead a selective, case-by-case approach that gradually imported most of the Bill of Rights into state criminal procedure. For law students, Palko is essential reading because it illuminates the Court's methodology in identifying which rights are fundamental and why.
Palko v. Connecticut, 302 U.S. 319 (1937)
Frank Palko was charged in Connecticut with first-degree murder after a robbery led to the killing of two police officers. At his first trial, the jury found him guilty of second-degree murder, and he received a life sentence. Connecticut law permitted the State to appeal on questions of law. The State appealed, and the state's highest court reversed the conviction based on trial errors and ordered a new trial. At the second trial, Palko was convicted of first-degree murder and sentenced to death. Palko sought review in the U.S. Supreme Court, arguing that the State's successful appeal and his retrial for a more serious offense violated the Fifth Amendment's Double Jeopardy Clause, which he contended was applicable to the states through the Fourteenth Amendment's Due Process Clause.
Does the Fourteenth Amendment's Due Process Clause incorporate the Fifth Amendment's Double Jeopardy Clause so as to bar a state from retrying a defendant and imposing a harsher sentence after the State successfully appeals the first conviction?
Under the Fourteenth Amendment's Due Process Clause, only those rights that are of the very essence of a scheme of ordered liberty—principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental—are incorporated against the states. Not all provisions of the Bill of Rights apply to the states; only those deemed fundamental to due process are enforced against them.
No. The Double Jeopardy Clause was not, at the time, considered a fundamental right applicable to the states through the Fourteenth Amendment. Connecticut's statute permitting the State to appeal and retry Palko did not violate due process. The conviction and death sentence were affirmed.
Justice Cardozo, writing for the Court, rejected the view that the Fourteenth Amendment automatically applies all of the Bill of Rights to the states. Instead, he advanced a selective approach, under which the Court identifies on a case-by-case basis those rights that are fundamental to the American system of justice. Cardozo explained that some liberties—such as freedom of thought and speech—are of the very essence of ordered liberty and are therefore obligatory on the states, while others, though important, are not essential in the same sense. Applying this framework, the Court reasoned that the Double Jeopardy Clause did not occupy the same privileged position as the most fundamental rights. Cardozo emphasized that retrial following reversal is a familiar practice in American law and that allowing a state to correct trial errors by appeal does not inevitably produce the type of oppression or arbitrary action due process forbids. In Palko's case, the state court's reversal rested on legal error at the first trial; the subsequent proceeding was not a harassing, repetitive prosecution but a single, corrected retrial aimed at reaching a legally proper verdict. Thus, the Court concluded, the practice did not offend fundamental fairness. Because the Double Jeopardy Clause was not deemed fundamental under the "ordered liberty" test, it was not incorporated against the states, and Connecticut's procedure stood. The Court's opinion distinguished between the wholesale application of the Bill of Rights and a more discriminating inquiry into which protections are indispensable to fairness. It thereby entrenched the selective incorporation methodology, even as it declined to include double jeopardy within the set of rights incorporated at that time.
Palko is pivotal for articulating selective incorporation: only rights fundamental to ordered liberty apply to the states through the Fourteenth Amendment. While its specific holding on double jeopardy was overruled by Benton v. Maryland (1969), the case remains vital for its methodology and for understanding the evolution of incorporation. It frames how later cases—such as Duncan v. Louisiana (jury trial), Mapp v. Ohio (exclusionary rule), and Malloy v. Hogan (self-incrimination)—evaluated which protections are fundamental. For students, Palko illustrates how the Court balances historical tradition, functional necessity, and normative judgments about fairness in deciding what due process requires of the states.
Selective incorporation is the process by which the Supreme Court applies specific protections in the Bill of Rights to the states through the Fourteenth Amendment's Due Process Clause, but only if those protections are deemed fundamental to ordered liberty or deeply rooted in national traditions. Palko systematized this approach, shifting away from both total incorporation and no incorporation.
The Court reasoned that while double jeopardy protections are important, the particular Connecticut practice at issue—permitting a single state appeal to correct legal errors and then retrying the defendant—did not inherently produce the kind of fundamental unfairness due process forbids. The Court viewed retrials after reversals as consistent with traditional practice and not essential to ordered liberty in the same way as, for example, freedom of speech.
Yes. Benton v. Maryland, 395 U.S. 784 (1969), overruled Palko's specific holding and incorporated the Double Jeopardy Clause against the states. Benton reflects the Court's later conclusion that freedom from double jeopardy is indeed fundamental to ordered liberty.
No. Even under modern doctrine, if a defendant successfully appeals a conviction and obtains a reversal due to trial error (as opposed to evidentiary insufficiency), the Double Jeopardy Clause generally permits retrial. What double jeopardy forbids is a second prosecution after an acquittal, multiple punishments for the same offense, and, with limited exceptions, serial prosecutions for the same offense by the same sovereign.
Palko supplied the methodological foundation—the ordered liberty test—used in later cases. Duncan v. Louisiana (1968) incorporated the right to a jury trial in serious criminal cases, and Malloy v. Hogan (1964) incorporated the privilege against self-incrimination. These decisions reflect the Court's evolving understanding of which rights are fundamental, culminating in near-total incorporation of the criminal procedure guarantees.
Palko teaches that the constitutionality of state procedures often turns on whether they align with fundamental fairness under the Fourteenth Amendment. While Palko's specific outcome changed, its focus on functional fairness, historical practice, and the gravity of the right remains central to evaluating state criminal processes.
Palko v. Connecticut occupies a central place in constitutional law, not because its outcome endured, but because its reasoning crystallized the Court's selective incorporation framework. By distinguishing between rights essential to ordered liberty and those that are not, the Court provided a method for extending core constitutional protections to the states while permitting doctrinal evolution.
Benton ultimately rejected Palko's judgment about double jeopardy's fundamentality, but Palko's analytic approach continues to shape incorporation jurisprudence. For students and practitioners, the case demonstrates how constitutional meaning develops through the interplay of history, principle, and practical judgment about what fairness requires in a just system.
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