Palko v. Connecticut (1937) – (5th Am. right to protection against double jeopardy is not a fundamental right incorporated by the 14th Am. to the individual states)
Note: Overruled in Benton v. Maryland in 1969.
Background: Palko had been charged with first-degree murder but was instead convicted of the lesser offense of second-degree murder and given a sentence of life imprisonment. Prosecutors appealed per Connecticut law and won a new trial, in which Palko was found guilty of first-degree murder and sentenced to death. Palko appealed, arguing that the 5th Am. protection against double jeopardy applied to state governments through the DPC of the 14th Am. The Court had previously held in the Slaughterhouse cases that the protections of the Bill of Rights should not be applied to the states under the P or I clause, but Palko held that since the infringed right fell under a due process protection, Connecticut still acted in violation of the 14th Am.
Holding (8-1): The DPC protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore gradually incorporate the Bill of Rights onto the States as justiciable violations arose, based on whether the infringed right met that test. Applying this subjective case-by-case approach (known as selective incorporation), the Court upheld Palko's conviction on the basis that the Double Jeopardy appeal was not "essential to a fundamental scheme of ordered liberty."