Palko v. Connecticut, 302 U.S. 319 (1937)
Palko v. Connecticut is a cornerstone in the development of the selective incorporation doctrine under 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.
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.