he Fifth Amendment specifically prohibits prosecution
of an 'infamous crime' except upon indictment; it forbids double
jeopardy; it bars compelling a person to be a witness against himself in
any criminal case; it precludes deprivation of 'life, liberty, or
property, without due process of law * * *' Are Madison and his
contemporaries in the framing of the Bill of Rights to be charged with
writing into it a meaningless clause? To consider 'due process of law'
as merely a shorthand statement of other specific clauses in the same
amendment is to attribute to the authors and proponents of this
Amendment ignorance of, or indifference to, a historic conception which
was one of the great instruments in the arsenal of constitutional
freedom which the Bill of Rights was to protect and strengthen." Warning
that "a construction which * * * makes of" the due process clause of the
Fourteenth Amendment "a summary of specific provisions of the Bill of
Rights would, * * *, tear up by the roots much of the fabric of the law
in the several States," Justice Frankfurter, in conclusion, offers his
own appraisal of this clause. To him, the due process clause "expresses
a demand for civilized standards of law, [and] it is thus not a stagnant
formulation of what has been achieved in the past but a standard for
judgment in the progressive evolution of the institutions of a free
society." Accordingly "judicial judgment in applying the Due Process
Clause must move within the limits of accepted notions of justice and
* * * [should] not be based upon the idiosyncrasies of a merely personal
judgment. * * * An important safeguard against such merely individual
judgment is an alert deference to the judgment of the State court under
review."[901]

In dissenting Justice Black, who was supported by Justice Douglas,
attached to his opinion "an appendix which contains * * * [his] resume,
* * *, of the Amendment's history." It is his judgment "that history
conclusively demonstrates that the language of the first section of the
Fourteenth Amendment, taken as a whole, was thought by those responsible
for its submission to the people, and by those who opposed its
submission, sufficiently explicit to guarantee that thereafter no State
could deprive its citizens of the privileges and protections of the Bill
of Rights." A majority of the Court, he acknowledges resignedly, has
declined, however, "to appraise the relevant historical evidence of the
intended scope