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Around the turn of the century, a few federal cases revealed a new attitude toward criminal justice. In 1893, in Wilson v. United States,8 the facts were these: George E. Wilson, a bookseller and publisher in Chicago, was indicted for sending obscene materials through the mails. He remained silent at his trial. The district attorney said to the jury: “They say Wilson is a man of good character . . . but I want to say to you, gentlemen of the jury, that if I am ever charged with a crime . . . I will go upon the stand and hold up my hand before high Heaven and testify to my innocence.” The trial judge made some mild comment on this but did not “condemn the language” in strong terms. Wilson was convicted and sentenced to two years in prison. The Supreme Court reversed the conviction; the trial court should have told the jury, “in emphatic terms,” that counsel was “forbidden” to make any statement that would cause the jury to think failure to testify was a suspicious fact.9

This was a federal case, and the Supreme Court was not only supreme arbiter of constitutional meanings, it was also the supreme head of the federal system.bv It had the power to lay down rules that all federal courts had to follow. So, in McNabb v. United States11 defendants were members of a “clan of Tennessee mountaineers” living outside Chattanooga; they made and sold moonshine. During a raid on the still, a revenue agent was shot and killed. Defendants were arrested and held incommunicado in a “detention room” for about fourteen hours, a violation of federal procedures. They confessed and were convicted, but the Supreme Court reversed. Courts, said Justice Frankfurter, could not become “accomplices in willful disobedience of law.” He did not need to invoke the constitutional issue at all: only the power of the Court, as overseer of the federal system, to impose rules on lower courts.

What about the states? The Fourteenth Amendment said nothing explicit about criminal justice or the Bill of Rights. But it did speak of rights of due process and equal protection—slippery, open-ended, protean concepts. It imposed the “due process” obligation on the states. States, then, had a constitutional duty to run fair trials. But by whose standards? Were federal standards now a yoke on the necks of state courts?

There was no simple and immediate answer. The doctrines did not spring into life full-blown; rather, they evolved. In Twining v. New Jersey (1908),12 the issue was the privilege against self-incrimination, a part of the Fifth Amendment. The facts were a bit like Wilson. Albert Twining and David Cornell were bank directors who had been convicted of bank fraud. They did not testify at their trial, and the judge pointed this out to the jury: “Neither . . . has gone upon the stand.... [This] fact . . . is sometimes a matter of significance.” The significance depended on the facts. One witness had made a direct, flat-out accusation against Cornell. Cornell said nothing. The jury, said the judge, had a “right to consider” the fact that Cornell just “sat there” and did not go on the stand to deny the accusations.

The trial had taken place in New Jersey, and the judge’s charge was good law in New Jersey. Did the Fourteenth Amendment now impose a higher standard on that state? The Supreme Court was hesitant. It was “possible” that some “personal rights safeguarded by the first eight Amendments . . . may also be safeguarded against state action,” because they were essential to the concept of “due process of law.”13 But after nagging at the issue like a dog gnawing at a bone, the court came down on the side of the state. The judge’s words did not go beyond the standards of “due process.”14

The worm turned later in the century. In a bold series of decisions, the Supreme Court took up the suggestion casually made in Twining. It held that many (though not all) of the guarantees in the Bill of Rights had been “incorporated” into the Fourteenth Amendment. This was because they were