xt7msb3wtd0h_62 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Rochin v. State of California - no. 83 text Rochin v. State of California - no. 83 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_225/Folder_19/Multipage7785.pdf 1951 1951 1951 section false xt7msb3wtd0h_62 xt7msb3wtd0h //2;/

SUPREME COURT OF THE UNITED STATES

No. 83.—OCTOBER TERM, 1051.

Antonio Richard Rochin, On Writ of Certiorari to the

P0060110?) District Court of Appeal

1). for the Second Appellate

People of the State of District Of the State Of
California. California.

[January —~. 1951.]

MR. JUSTICE FRANKFURTER delivered the opinion of the
Court.

Having “some information that [the petitioner here]
was selling narcotics,” three deputy sheriffs of the County
of Los Angeles, on the morning of July 1, 1949, made for
the two—story dwelling house in which Rochin lived with
his mother, his common-law wife, brothers and sisters.
Finding the outside door open, they entered and then
forced open the door to Rochin‘s room on the second
floor. Inside they found petitioner sitting partly dressed
on the side of the bed, upon which his wife was lying.
On a “night stand” beside the bed the deputies spied two
capsules. When asked “Whose stuff is this?” Rochin
seized the capsules and put them in his mouth. A strug—
gle ensued, in the course of which the three officers
“jumped upon him" and attempted to extract the cap—
sules. The force they applied proved unavailing against
Rochin‘s resistance. He was handcuffed and taken to a
hospital. At the direction of one of the officers a doctor
forced invite an emetic solution into Rochin’s stomach
by means of a tube. This “stomach pumping” produced
vomiting. In the vomited matter were found two cap—
sules which proved to contain morphine.

Rochin was brought to trial before a California Su—
perior Court, sitting without a jury, on the charge of

 

 83
2 ROCHIN 1). CALIFORNIA.

possessing “a preparation of morphine” in violation of
the California Health and Safety Code, 1947, §11,500.
Roehin was convicted and sentenced to sixty days’ im-
prisonment. The chief evidence against him was the two
capsules. They were admitted over petitioner’s objec—
tion, although the means of obtaining them was frankly
set forth in the testimony by one of the deputies, sub—
stantially as here narrated.

On appeal, the District Court of Appeal affirmed the
conviction, despite the finding that the officers “were
guilty of unlawfully breaking into and entering defend-
ant‘s room and were guilty of unlawfully assaulting and
battering defendant while in the room,” and “were guilty
of unlawfully assaulting, battering, torturing and falsely
imprisoning the defendant at the alleged hospital.” 101
Cal. App. 2d 140, 143, 225 P. 2d 1, 3. One of the three
judges, while finding that “the record in this case reveals
a shocking series of violations of constitutional rights,”
concurred only because he felt bound by the decisions of
his Supreme Court. These, he asserted, “have been
looked upon by law enforcement officers as an encourage—
ment, if not an invitation, to the commission of such law—
less acts.” Ibid. The Supreme Court of California
denied without opinion Rochin's petition for a hearing.1
Two justices dissented from this denial, and in doing so
expressed themselves thus: “. . a conviction which
rests upon evidence of incriminating objects obtained
from the body of the accused by physical abuse is as in-
valid as a conviction which rests upon a verbal confession
extracted from him by such abuse. . . . Had the evi-

‘The petition for a hearing is atldressed to the discretion of the
California Supreme Court and a denial has apparently the same
significance as the denial of eertiorari in this Court. Cal. Const,
Art. VI, g§4’ ‘1 (el; “Rules on Appeal", Rules ‘28, 29, 36 Cal. 2d
24—25 (1951). See 3 Stan. L. Rev. 243—269 (1951).

 

 83
ROCHIN 2). CALIFORNIA. 3

dence forced from the defendant’s lips consisted of an oral
confession that he illegally possessed a drug . . . he
would have the protection of the rule of law which ex—
cludes coerced confessions from evidence. But because
the evidence forced from his lips consisted of real objects
the People of this State are permitted to base a conviction
upon it. [We] find no valid ground of distinction be-
tween a verbal confession extracted by physical abuse and
a confession wrested from defendant’s body by physical
abuse.” 101 Cal. App. 2d 143, 149—150, 225 P. 2d 913,
917—918.

This Court granted certiorari, 341 U. S. 939, because
a serious question is raised as to the limitations which
the Due Process Clause of the Fourteenth Amendment
imposes on the conduct of criminal proceedings by the
States.

In our federal system the administration of criminal
justice is predominantly committed to the care of the
States. The power to define crimes belongs to Congress
only as an appropriate means of carrying into execution
its limited grant of legislative powers. U. S. Const, Art.
I, .58, cl. 18. Broadly speaking crimes in the United
States are what the laws of the individual States makes
them, subject to the limitations of Art. I, §10.[1], in
the original Constitution prohibiting bills of attainder and
(’1? post facto laws and the provisions of the Thirteenth
and Fourteenth Amendments.

These limitations, in the main, concern not restrictions
upon the power of the States to define crime except in
the nonimportant area where Federal authority has pre-
empted the field, but restrictions upon the manner in
which the States may enforce their penal code. Ac-
cordingly, in reviewing a State criminal conviction under
a claim of right guaranteed by the Due Process Clause
of the Fourteenth Amendment, from which is derived the

 

 83
4 ROCHIN 1). CALIFORNIA.

most far—reaching and most frequent federal basis of
challenging State criminal justice, “we must be deeply
mindful of the responsibilities of the States for the en—
forcement of criminal laws, and exercise with due humil-
ity our merely negative function in subjecting convictions
from State courts to the very narrow scrutiny which the
Due Process Clause of the Fourteenth Amendment au—
thorizes.” JlIalins/ci v. New York, 324 U. S. 401, 412,
418. Due process of law, “itself a historical product,”
Jae/email. v. Rosenibamn 00., 260 U. S. 22, 31, is not to be
turned into a destructive dogma against the States in the
administration of their systems of criminal justice.

However, this Court too has its responsibility. Regard
for the requirements of the Due Process Clause “inescap-
ably imposes upon this Court an exercise of judgment
upon the whole course of the proceedings [resulting in a
conviction] in order to ascertain whether they offend
those canons of decency and fairness which express the no—
tions of justice of English—speaking peoples even toward
those charged with the most heinous offenses.” M'alinski
v. New York, supra, at 416—417. These standards of jus—
tice are not authoritatively formulated anywhere as.
though they were specifics. Due process of law is a sum-
marized constitutional guarantee of respect for those per—
sonal immunities which, as Mr. Justice Cardozo twice
wrote for the Court, are ”so rooted in the traditions and
conscience of our people as to be ranked as fundamental,”
Snyder v. flIassarcliusctts, 291 U. S. 97, 105, or are “im—
plicit in the concept of ordered liberty.” Pail/c0 V. Con—
necticut, 302 U. S. 319, 325.3

3 What is here summarized was deemed by a majority of the Court,.
in Illa/insist v. New Yer/r, 324 U. S. 40], 412 and 438, to be “the
controlling principles upon which this Court reviews on constitu—
tional grounds a state court conviction for crime.” They have been
applied by this Court many times, long before and since the il'Ialz'ns/ci
ease.

 

 83
ROCHIN v. CALIFORNIA. 5

The Court’s function in the observance of this settled
conception of the Due Process Clause does not leave us
without adequate guides in subjecting State criminal pro-
cedures to constitutional judgment. In dealing not with
the machinery of government but with human rights, the
absence of formal cxactitude, or want of fixity of mean-
ing, is not an unusual or even regrettable attribute of
constitutional provisions. \Vords being symbols do not
speak without a gloss. On the one hand the gloss may
be the deposit of history, whereby a term gains technical
content. Thus the requirements of the Sixth and
Seventh Amendments for trial by jury in the Federal
courts have a definite meaning. No changes or chances
can alter the content of the verbal symbol of “jury”—a
body of twelve men who must reach a unanimous con—
clusion if the verdict is to go against the defendant.3 On
the other hand, the gloss of some of the verbal symbols
of the Constitution does not give them a fixed technical
content. It exacts a continuing process of application.

When the gloss has thus not been fixed for all time and
every circumstance but is a process of judgment, the
judgment is bound to fall differently at different times
and differently at the same time through different judges.
Thus it is that even more specific provisions, such as the
guaranty of freedom of speech and the detailed protection
against unreasonable searches and seizures, have inevi-
tably evoked as sharp divisions in this Court as the least
specific and most comprehensive protect-ion of liberties,
the Due Process Clause.

"This is the federal jury required constitutionally although both
in England and in at least half of the States a jury may be com—
posed of less than twelve or a. verdict. may be less than unanimous.
Arizona State Legislative Bureau, Legislative Briefs No. 4, Grand
and l’etit Juries in the l7nited States \'—\'I (Feb. 15, 1940); Council
of State Governments, The Book of the States 1950—1051, 515.

 

 83
ROCHIN 7;. CALIFORNIA.

The vague contours of the Due Process Clause do not
leave judges at large." We may not draw on our merely
personal and private notions and disregard the limits that
bind judges in their judicial function. Even though the
concept of due process of law is not final and fixed, these
limits are derived from considerations that are fused in
the whole nature of our judicial process. See Cardozo,
The Nature of the Judicial Process; The Growth of the
Law; The Paradoxes of Legal Science. These are con—
siderations deeply rooted in reason and in the compelling
traditions of the legal profession. The Due Process
Clause places upon this Court the duty of exercising a
judgment, within the narrow confines of judicial power
in reviewing State convictions, upon interests of society
pushing in opposite directions.

Due process of law thus conceived is not to be derided
as resort to a revival of “natural law.” To believe that
this judicial exercise of judgment could be avoided by

“ Burke’s observations on the method of ascertaining law by judges
are pertinent:

“Your committee do not find any positive law which binds the
judges of the courts in Westminister-hall publicly to give a reasoned
opinion from the bench, in support of their judgment upon matters
that are stated before them. But the course hath prevailed from
the oldest times. It had been so general and so uniform, that it
must be considered as the law of the land." Report of the Com—
mittee. of Managers on the Causes of the Duration of Mr. llastings’s
Trial, 4 Speeches of Edmund Burke (1816), 200—201.

And Burke had an answer for those who argue that the liberty
of the citizen cannot be adequately protected by the flexible con-
ception of due process of law:

“. . . the. English jurisprudence has not any other sure foundation,
nor consequently the lives and properties of the subject any sure
hold, but in the maxims, rules, and principles, and juridical tradition-
ary line of decisions . . . .” I(l., at .‘301.

5Morris R. Cohen, “Jns Naturale Redivivum,” 25 Philosophical
Review 761 (1916), and “Natural Rights and Positive Law,” Reason
and Nature 401—426 (1031); F. Pollock, “The History of the Law
of Nature,” Essays in the Law 31-79 (1922 .

 

 83
ROCHIN v. CALIFORNIA. 7

freezing “due process of law” at some fixed stage of time
or thought is to suggest that the most important aspect
of constitutional adjudication is a function for inanimate
machines and not for judges for whom the independence
safeguarded by Article III of the Constitution was de—
signed and who are presumably guided by established
standards of judicial behavior. Even cybernetics has not
yet made that haughty claim. Of course to practice the
requisite detachment and to achieve suflicient objectivity
demands of judges the habit of self—discipline and self-
criticism, incertitude that one’s own views are incontest-
able and alert tolerance toward views not shared. But
these are precisely the presuppositions of our judicial
process. They are precisely the qualities society has a
right to expect from those entrusted with ultimate judicial
power.

Restraints on our jurisdiction are self—imposed only in
the sense that there is from our decisions no immediate
appeal short of impeachment or constitutional amend—
ment. But that does not make due process of law a
matter of judicial caprice. The faculties of the Due Proc-
ess Clause may be indefinite and vague, but the mode
of their ascertainment is not self—willed. In each case

)

“due process of law' requires an evaluation based on a
disinterested inquiry pursued in the spirit of science, on
a balanced order of facts exactly and fairly stated, on the
detached consideration of conflicting claims, see Hudson
County II’al'er ('0. V. ilIcCartcr, 209 U. S. 349, 355, on a
judgment not ad hoc and episodic but duly mindful of
reconciling the needs both of continuity and of change in
any progressive society.

Applying these general considerations to the circum-
stances of the present case, we are compelled to conclude
that the proceedings by which this conviction was ob-
tained do more than offend some fastidious squeamishness
or private sentimentalism about combatting crime too
energetically. It is conduct that shocks the conscience.

 

 83
8 ROCHIN 7). CALIFORNIA.

Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there,
the forcible extraction of his stomach‘s contents——this
course of proceeding by agents of government to obtain
evidence is bound to offend even hardened sensibilities.
They are methods too close to the rack and the screw to
permit of constitutional differentiation.

It has long since ceased to be true that due process of
law is heedless of the means by Which otherwise relevant
and credible evidence is obtained. It was not true even
before the series of recent cases enforced the constitutional
principle that the States may not base convictions upon
confessions, however much verified, but obtained by coer-
cion. These decisions are not arbitrary exceptions to the
comprehensive right of States to fashion their own rules
of evidence for criminal trials. They are not sports in our
constitutional law but applications of a general principle.
They are only illustrations of the universal due process
requirement, pointed out by Mr. Chief Justice Hughes
for a unanimous Court in Brown, v. illississippi, 297 U. S.
278, 285~286, that States in their prosecutions respect
certain deceneies of civilized conduct. Due process of law
as a historic and generative principle precludes defining
these standards of conduct more precisely, and thereby
confining them, than to say that prosecutions cannot be
brought about by methods that offend “a sense of justice.”
It would be a stultification of the responsibility which
the course of constitutional history has cast upon this
Court to hold that in order to convict a man the police-
cannot extract by force what is in his mind but can
extract what is in his stomach.

To attempt in this case to distinguish what lawyers.
call “real evidence" from verbal evidence is to ignore the
reason for excluding coerced confessions. Use of involun-
tary verbal confessions in State criminal trials is constitu-
tionally obnoxious not only because of their unreliability.
They are inadmissible under the Due Process Clause even

 

 83
ROCHIN 11. CALIFORNIA. 9'

though statements contained in them may be independ—
ently established as true. Coerced confessions offend the
community’s sense of fair play and decency. So here, to
sanction the brutal conduct which naturally enough was
condemned by the court whose judgment is before us,
would be to afford brutality the cloak of law. Nothing
would be more calculated to discredit law and thereby to
brutalize the temper of a society.

In deciding this case we do not heedlessly bring into
question decisions in many States dealing with essentially
different, even if related, problems. We therefore put
to one side the various cases in the State courts which
have arisen through use of modern methods and devices
for discovering wrongdoers and bringing them to book.
It does not fairly represent those decisions to suggest that
they sanction force so brutal and so offensive to human
dignity in securing evidence from a suspect as is revealed
by this record. Indeed the California Supreme Court
has not sanctioned this mode of securing a conviction.
It merely exercised its discretion to decline a review of
the conviction. All the California judges who have
expressed themselves in this case have condemned the
conduct in the strongest language.

We are not unmindful that hypothetical situations can
be conjured up, shading imperceptibly from the circum-
stances of this case and by gradations producing practical
differences despite seemingly logical extensions. But the
Constitution is “intended to preserve practical and sub-
stantial rights not to maintain theories.” Davis V. M ills,
194 U. S. 451, 457.

On the facts of this case the conviction of the petitioner
has been obtained by methods that offend the Due Process.
Clause. The judgment below must be

Reversed.

MR. JUSTICE MINTON took no part in the consideration
or decision of this case.

 

 “ 4/452;wa

xaa/a/a‘i:jj:j y g 9’

SUPREME COURT OF THE UNITED STATES

No. 83.—OCTOBER TERM, 1051.

Antonio Richard Roehin, On Writ of Certiorari t0 the

PCtitiOIlCl', District Court of Appeal

1;. for the Second Appellate

People of the State of IJlStI‘lCt Of the State Of
California. California.

[December —, 1051.]

MR. JUSTICE FIMNKFUR’I‘I-ZR delivered the opinion of the
Court.

Having “some information that [the petitioner here]
was selling narcotics,” three deputy sheriffs of the County
of Los Angeles. on the morning of July 1, 1949, made for
the two-story dwelling house in which Rochin lived with
his mother, his common-law wife, brothers and sisters.
Finding the outside door open, they entered and then
forced open the door to Rochin’s room on the second
floor. Inside they found petitioner sitting partly dressed
on the side of the bed, upon which his wife was lying.
On a “night stand" beside the bed the deputies spied two
capsules. When asked “Whose stuff is this?” Rochin
seized the capsules and put them in his mouth. A strug-
gle ensued, in the course of which the three officers
“jumped upon him” and attempted to extract the cap—
sules. The force they applied proved unavailing against
Rochin's resistance. He was handcuffed and taken to a
hospital. At the direction of one of the ofiicers a doctor
forced invite an emetic solution into Rochin's stomach
by means of a tube. This “stomach pumping” produced
vomiting. In the vomited matter were found two cap—
sules which proved to contain morphine.

Rochin was brought to trial before a California Su—
perior Court, sitting without a jury, on the charge of

 

 83
ROCHIN 2). CALIFORNIA.

possessing “a preparation of morphine” in violation of
the California Health and Safety Code, 1947, §11,500.
Rochin was convicted and sentenced to sixty days’ im—
prisomnent. The chief evidence against him was the two
capsules. They were admitted over petitioner’s objec-
tion, although the means of obtaining them was frankly
set forth in the testimony by one of the deputies, sub—
stantially as here narrated.

On appeal, the District Court of Appeal affirmed the
conviction, despite the finding that the officers “were
guilty of unlawfully breaking into and entering defend-
ant's room and were guilty of unlawfully assaulting and
battering defendant while in the room,” and “were guilty
of unlawfully assaulting, battering, torturing and falsely
imprisoning the defendant at the alleged hospital.” 101
Cal. App. 2d 140, 143, 225 P. 2d 1, 3. One of the three
judges, while finding that “the record in this case reveals
a shocking series of violations of constitutional rights,”
concurred only because he felt bound by the decisions of
his Supreme Court. These, he asserted, ”have been
looked upon by law enforcement ofiicers as an encourage—
ment, if not an invitation, to the commission of such law—
less acts." Ibid. The Supreme Court of California
denied Without opinion Rochin's petition for a hearing.1
Two justices dissented from this denial, and in doing so
expressed themselves thus: “. . a conviction which
rests upon evidence of incriminating objects obtained
from the body of the accused by physical abuse is as in—
valid as a conviction which rests upon a verbal confession
extracted from him by such abuse. . . . Had the evi—

‘The petition for a hearing is addressed to the discretion of the
California Supreme Court and a denial has apparently the same
significance as the denial of eertiorari in this Court. Cal. Const,
Art. VI, §§ 4, 4 (e); “ tales on Appeal", Rules 25’ 129, 30' Cal. 2d
21~35 (1051). See 3 Stan. L. tev. 1243—260 (1951).

 

 83
ROCHIN 1). CALIFORNIA. 3

dence forced from the defendant’s lips consisted of an oral
confession that he illegally possessed a drug . . . he
would have the protection of the rule of law Which ex-
cludes coerced confessions from evidence. But because
the evidence forced from his lips consisted of real objects
the People of this State are permitted to base a conviction
upon it. [We] find no valid ground of distinction be—
tween a verbal confession extracted by physical abuse and
a confession wrested from defendant’s body by physical
abuse.” 101 Cal. App. 2d 143, 149—150, 225 P. 2d 913,
917—018.

This Court granted eertiorari, 341 U. S. 939, because
a serious question is raised as to the limitations which
the Due Process Clause of the Fourteenth Amendment
imposes on the conduct of criminal proceedings by the
States.

In our federal system the administration of criminal
justice is predominantly committed to the care of the
States. The power to define crimes belongs to Congress
only as an appropriate means of carrying into execution
its limited grant of legislative powers. U. S. Const, Art.
I, §8, cl. 18. Broadly speaking crimes in the United
States are what the laws of the individual States makes
them, subject to the limitations of Art. I, §10 [1], in
the original Constitution prohibiting bills of attainder and
01‘ post facto laws and the provisions of the Thirteenth
and Fourteenth Amendments.

These limitations, in the main. concern not restrictions
upon the power of the States to define crime except in
the nonimportant area where Federal authority has pre—
empted the field. but restrictions upon the manner in
which the States may enforce their penal code. Ac-
cordingly. in reviewing a State criminal conviction under
a claim of right guaranteed by the Due Process Clause
of the Fourteenth Amendment, from which is derived the

 

 83

4 ROCHIN 2). CALIFORNIA.

most far—reaching and most frequent federal basis 'of
challenging State criminal justice, “we must be deeply
mindful of the responsibilities of the States for the en—
forcement of criminal laws, and exercise with due humil—
ity our merely negative function in subjecting convictions
from State courts to the very narrow scrutiny which the
Due Process Clause of the Fourteenth Amendment au—
thorizes.” Malinski v. New York, 324 U. S. 401, 412,
418. Due process of law, “itself a historical product,”
Jae/mmn v. Roscnbaum C0., 260 U. S. 22, 31, is not to be
turned into a destructive dogma against the States in the
administration of their systems of criminal justice.

However, this Court too has its responsibility. Regard
for the requirements of the Due Process Clause “inescap—
ably imposes upon this Court an exercise of judgment
upon the whole course of the proceedings [resulting in a
conviction] in order to ascertain whether they offend
those canons of decency and fairness which express the no—
tions of justice of English—speaking peoples even toward
those charged with the most heinous offenses.” 1V1 alias/vi
v. New York, supra, at 416—417. These standards of jus—
tice are not authoritatively formulated anywhere as
though they were specifics. Due process of law is a sum-
marized constitutional guarantee of respect for those per—
sonal immunities which, as Mr. Justice Cardozo twice
wrote for the Court, are “so rooted in the traditions and
conscience of our people as to be ranked as fundamental,”
Snyder v. Massachusetts, 291 U. S. 97, 105, or are “im—
plicit in the concept of ordered liberty." Pal/co V. Con-
necticut, 302 U. S. 310, 325.2

‘-' What is here summarized was deemed by a majority of the, Court,
in .lla/z'ns/rz' V. New Tor/r, 324 U. S. 401, 412 and 438, to be “the
controlling principles upon which this Court reviews on constitu-
tional grounds a state court conviction for crime.” They have been
applied by this Court many times, long before and since the Malinski
case.

 

 83
ROCHIN v. CALIFORNIA. 5

The Court’s function in the observance of this settled
conception of the Due Process Clause does not leave us-
without adequate guides in subjecting State criminal pro—
cedures to constitutional judgment. In dealing not with
the machinery of government but with human rights, the
absence of formal exactitude, or want of fixity of mean—
ing, is not an unusual or even regrettable attribute of
constitutional provisions. Words being symbols do not
speak without a gloss. On the one hand the gloss may
be the deposit of history, whereby a term gains technical
content. Thus the requirements of the Sixth and
Seventh Amendments for trial by jury in the Federal
courts have a definite meaning. No changes or chances
can alter the content of the verbal symbol of “jury”—a
body of twelve men who must reach a unanimous con—
clusion if the verdict is to go against the defendant.3 On
the other hand, the gloss of some of the verbal symbols
of the Constitution does not give them a fixed technical
content. It exacts a continuing process of application.

When the gloss has thus not been fixed for all time and
every circumstance but is a process of judgment, the»
judgment is bound to fall differently at different times»
and differently at the same time through different judges.
Thus it is that even more specific provisions, such as the-
guaranty of freedom of speech and the detailed protection
against unreasonable searches and seizures, have inevi—
tably evoked as sharp divisions in this Court as the least
specific and most comprehensive protection of liberties,
the Due Process Clause.

”This is the federal jury required constitutionally although both
in England and in at least half of the States a jury may be com-
posed of less than twelve or a verdict may be less than unanimous.
Arizona State Legislative Bureau, Legislative Briefs N0, 4, Grand
and l’etit Juries in tlie l'nited States \'—-\'I (Feb, 15, 1940); Council
of State Goveriunents, The Book of the States 1050—1951, 515.

 

 83
ROCHIN 1). CALIFORNIA.

The vague contours of the Due Process Clause do not
leave judges at large." We may not draw on our merely
personal and private notions and disregard the limits that
bind judges in their judicial function. Even though the
concept of due process of law is not final and fixed, these
limits are derived from considerations that are fused in
the whole nature of our judicial process. See Cardozo,
The Nature of the Judicial Process; The Growth of the
Law; The Paradoxes of Legal Science. These are con—
siderations deeply rooted in reason and in the compelling
traditions of the legal profession. The Due Process
Clause places upon this Court the duty of exercising a
judgment, within the narrow confines of judicial power
in reviewing State convictions, upon interests of society
pushing in opposite directions.

Due process of law thus conceived is not to be derided
as resort to a revival of “natural law.” 5 To believe that
this judicial exercise of judgment could be avoided by

" Burke’s, observations on the method of ascertaining law by judges
are pertinent:

"Your committee do not find any positive law which binds the
judges of the courts in Westminister-hall publicly to give a reasoned
opinion from the bench, in support of their judgment upon matters
that are stated before them. But the course hath prevailed from
the oldest times. It had been so general and so uniform, that it
must be considered as the law of the land.” Report of the Com—
mittee of Managers on the Causes of the Duration of Mr. llastings’s
Trial, 4 Speeehes of Edmund Burke (181(3), 200—201.

And Burke had an answer for those who argue that the liberty
of the citizen cannot be adequately protected by the flexible con—
eeption of due process of law:

1!

. . . the English jurisprudence has not, any other sure foundation,
nor eonsequently the lives and properties of the subject any sure
hold, but in the maxiins, rules, and principles, and juridical tradition—
:11‘}' line of decisions Id., at ‘20].

“Morris R. Cohen, “.lus Naturaie Redivivum," 25 Philosophical
Review 7451 (191(5), and “Natural Rights and Positive Law,” Reason
and Nature 401—430 (W31); F. l’olloek, “The History of the Law
of Nature," Essays in the Law 31—79 (1922).

 

 83
ROCHIN 7;. CALIFORNIA. 7

freezing “due process of law” at some fixed stage of time
or thought is to suggest that the most important aspect
of constitutional adjudication is a function for inanimate
machines and not for judges for whom the independence
safeguarded by Article III of the Constitution was de—
signed and who are presumably guided by established
standards of judicial behavior. Even cybernetics has not
yet made that haughty claim. Of course to practice the
requisite detachment and to achieve sufficient objectivity
demands of judges the habit of self-discipline and self—
criticism, incertitude that one’s own views are incontest—
able and alert tolerance toward views not shared. But
these are precisely the presuppositions of our judicial
process. They are precisely the qualities society has a
right to expect from those entrusted with ultimate judicial

power.
Restraints on our jurisdiction are self-imposed only in

the sense that there is from our decisions no immediate
appeal short of impeachment or constitutional amend—
ment. But that does not make due process of law a
matter of judicial caprice. The faculties of the Due Proc—
ess Clause may be indefinite and vague, but the mode
of their ascertainment is not self—willed. In each case
“due process of law” requires an evaluation based 011 a
disinterested inquiry pursued in the spirit of science, on
a balanced order of facts exactly and fairly stated, on the
detached consideration of conflicting claims, see Hudson
('ounly ll'afcr Ca. V. McCarter, 209 U. S. 349, 355, on a
judgment not ad [we and episodic but dilly mindful of
reconciling the needs both of continuity and of change in
any progressive society.

Applying these general considerations to the circum-
stances of the present case. we are compelled to conclude
that the proceedings by which this conviction was ob-
tained do more than offend some fastidious squeamishness
or private sentimentalism about combatting crime too
energetically. It is conduct that shocks the conscience.

 

 83
8 ROCHI).T v. CALIFORNIA.

Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what w