Hurtado v. California, 110 U.S. 516 (1884)
Commentary by Jon Roland
This is one of the more damaging decisions of the Supreme Court, setting a
terrible precedent. The issues were set forth well by Justice Harlan, whose
dissenting opinion is correct. Unfortunately, the majority did not agree with
What all of them seem to have missed, including the litigants, is that the
issue not just whether grand jury indictment is part of "due
process", guaranteed by the Fifth and Fourteenth Amendments. The
Fourteenth also provides:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
This language was made the opening statements in the Fourteenth for a
reason. They were not without force and effect. They were intended by the
framers of the Fourteenth to extend the jurisdiction and protection of federal
courts to all rights recognized by the Constitution and Bill of Rights against
actions by state government.
First, "any law" includes the state constitution, which is its
supreme law, subject to the U.S. Constitution.
Second, "immunities" includes all those rights recognized and
protected by the Constitution and Bill of Rights, including those of the Ninth
and Tenth Amendments. The framers of the Fourteenth used "immunities"
because the rights recognized and protected by the Constitution and Bill of
Rights are rights against action by government, which are
"immunities", as distinct from nonvested rights of business.
If there is any doubt as to what the framers of the Fouteenth meant by their
words, here are some more of their words, taken from debates in Congress and
the press during the drafting and ratification debates on the amendment. See
"Intent of the Fourteenth Amendment was
to Protect All Rights", by Jon Roland.
From the legislative history of the Fourteenth it should be clear that all
of the rights recognized by the U.S. Constitution are not only rights against
state action, but that the Fourteenth Amendment authorizes Congress to
legislate protection of such rights against state action, and grants
jurisdiction of the federal judiciary over cases between citizens and their
states involving them. Among those rights are the right to keep and bear arms
and the right to a grand jury indictment. While the Supreme Court might
reasonably have confirmed this in any given case by only declaring such rights
as are minimally needed to render a decision, it is important that they not
fail to do so for all the rights that are issues before the court, and the
precedent of the Hurtado case needs to be reversed.
Majority Opinion by Matthews | Dissenting Opinion by Harlan