Hurtado v. California (1884)

Jan 8

The Civil War’s Effect on Federalism

The American Civil War was as much, if not more, about federalism as it was slavery. Slavery was one domain of governing that involved concurrent sovereignty, shared governing authority between the national government and the states. In the aftermath of the war, three constitutional amendments had a profound effect on the relationship between the national government and the states. Sovereignty shifted increasingly from the states to the national government and was more apt to be exclusive than concurrent. Not only were the states prohibited from legalizing slavery by the Thirteenth Amendment, but they were required by the Fourteenth Amendment Due Process Clause to provide their citizens with due process of law. Just as the Fifth Amendment prohibited the national government from denying citizens life, liberty, and property without due process of law, the Fourteenth Amendment likewise restricted state power.

Yet there are differences between the two amendments. The Fifth Amendment Due Process Clause was embedded in the middle of the Bill of Rights. The Fourth Amendment preceded it and guaranteed protection from illegal government searches and seizures. It also included rights to grand jury trials in capital cases, prohibition of double jeopardy, protection against self-incrimination, and limits on the government’s takings power. The Sixth, Seventh, and Eighth Amendments added a host of other criminal rights, including the right to a speedy and public jury trial in the location where a crime was allegedly committed. In addition, the accused must be informed of the criminal charges against them, have the right to confront witnesses and compel them to testify, have the right to an attorney, not be charged excessive bail, and not be subject to cruel and unusual punishment. The Fourteenth Amendment does not include this long list of criminal rights.

Advocates of the doctrine of incorporation have argued that the specific provisions of the Bill of Rights also apply to the states. In their view, there was no reason for the framers of the Fourteenth Amendment to have included the specific due process rights enumerated in the Bill of Rights. Those rights are implied by the parallel wording of the two due process clauses. The Supreme Court, however, took decades after the addition of the Fourteenth Amendment to decide the precise relationship between the national Bill of Rights and the states. It eventually settled on selective incorporation, a case-by-case consideration of the application of the Bill of Rights to the states. The process of incorporation has unfolded in fits and starts over the course of more than a century.

Hurtado v. California’s Place in the Evolution of Incorporation

Hurtado v. California (1884) was decided by the Supreme Court sixteen years after the Fourteenth Amendment was added to the Constitution, when incorporation was in its seminal stage. At that time, the effect of the Civil War amendments on federalism was unclear. Several efforts to incorporate parts of the Bill of Rights were rejected by the Supreme Court as they had been in pre-Fourteenth Amendment cases like Barron v. Baltimore (1833) and Permoli v. New Orleans (1845). In some post-Fourteenth Amendment-nineteenth-century cases, the Court rejected the incorporation of the Bill of Rights as the source of state regulation and protection of property rights. The Slaughterhouse Cases (1873) and Munn v. Illinois (1877) grounded state regulation of business on inherent state police powers and rejected the doctrine of incorporation. Chicago, Burlington and Quincy Railroad Co. v. Chicago (1897), however, embraced, to a degree, the doctrine of incorporation by connecting the Fifth Amendment Just Compensation Clause to the Fourteenth Amendment Due Process Clause. Hurtado v. California was different than these cases because it involved criminal law and criminal due process rights.

The Legal Controversy

Joseph Hurtado suspected his friend Jose Estuardo, a widower, of having an affair with his wife Susie. She confessed to the affair to her husband. Hurtado then confronted his friend about the affair and demanded that Estuardo leave Sacramento. Estuardo agreed to leave but broke his promise and continued to pursue Hurtado’s wife. Hurtado then assaulted Estuardo when he found him in a Sacramento bar, the Bank Exchange Saloon. He was arrested. His trial was scheduled within a week after the assault. When the city attorney could not appear on the trial date, Hurtado was released, and the trial was rescheduled. Once released, Hurtado went to a bar, saw Estuardo approaching it, went outside, and shot him. Estuardo tried to run, but Hurtado shot him again in the back and a third time while he was lying on the ground. Hurtado was arrested a second time (it was also his second murder trial), tried, and convicted for murder; he was then sentenced to death by hanging. He was not indicted by a grand jury as required by the Fifth Amendment. At the time, California permitted prosecutors to file statements of information that were not submitted to a grand jury. Statements of information included detailed descriptions of the crime and evidence that were reviewed by a magistrate in the presence of the accused and his attorney, who were entitled to cross-examine witnesses and question the veracity of evidence. Hurtado appealed his conviction on the grounds that his Fifth and Fourteenth Amendment due process rights were violated by California. Two state courts upheld the conviction, and the case was appealed to the Supreme Court.

Justice Matthews’s Opinion

The Court ruled 7-1 for California, rejecting the argument made by Hurtado’s attorney that the Fourteenth Amendment protection of due process required California to provide Hurtado with the specific Fifth Amendment and common law guarantees for due process. Justice Matthews ruled that a grand jury trial was not required by the Fourteenth Amendment Due Process Clause. He argued that while the Fourteenth Amendment parallels the Fifth Amendment, the specific elements of due process included in the Fifth Amendment are excluded from the language of the Fourteenth Amendment and thus, by construction, not binding on the states.

Justice Matthews used Murray’s Lessee v. Hoboken Land & Imp. Co. (1856) to support the Court’s ruling. In that case, Justice Curtis stated that there are two sources on which the legitimacy of specific due process requirements can be validated: the Constitution and settled due process practices, including the common and statute law of England. After reviewing Justice Curtis’s opinion, Matthews concluded that “a process of law, which is not otherwise forbidden [by Constitutional or statutory law], must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law.” In other words, the specific due process measures provided by California, or any other state, do not have to be identical to what is required by the Fifth Amendment. Justice Matthews asked if the California statement of information that substitutes for a grand jury trial provided Mr. Hurtado, the defendant, with ample due process under the Fourteenth Amendment? He answered in the affirmative. If the framers of the Fourteenth Amendment intended to require states to provide grand jury trials in capital cases, they would have explicitly stated so. Justice Matthews also supported the ruling by quoting Justice Bradley’s opinion in Missouri v. Lewis (1879): “‘The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.’”

Significance of Hurtado v. California

Hurtado v. California has not been overturned by the Supreme Court. Consequently, states are not required by the Fourteenth Amendment to provide grand jury trials in felony cases. Roughly half of the states do not require grand jury trials in felony cases. Incorporation of the Bill of Rights remains selective. The explosion of criminal rights did not occur until the Warren Court in cases like Mapp v. Ohio (1961), Robinson v. California (1962), Gideon v. Wainwright (1963), Miranda v. Arizona (1966), Washington v. Texas (1967), and Duncan v. Louisiana (1968) that incorporated specific parts of the Fourth, Fifth, Sixth, and Eighth Amendments. As the doctrine of incorporation took root, the balance of sovereignty and power shifted away from the states and to the federal government. The centralization of political power reached a point in the twentieth century where some began to question whether federalism remained part of American constitutionalism as it was in the eyes of the Hurtado Court.