BLACK, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

397 U.S. 436

Ashe v. Swenson

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MR. JUSTICE BLACK, concurring.

I join in the opinion of the Court, although I must reject any implication in that opinion that the so-called due process test of "fundamental fairness" might have been appropriate as a constitutional standard at some point in the past, or might have a continuing relevancy today in some areas of constitutional law. In my view, it is a wholly fallacious idea that a judge's sense of what is fundamentally "fair" or "unfair" should ever serve as a substitute for the explicit, written provisions of our Bill of Rights. One of these provisions is the Fifth Amendment's prohibition against putting a man twice in jeopardy. On several occasions, I have stated my view that the Double Jeopardy Clause bars a State or the Federal Government or the two together from subjecting a defendant to the hazards of trial and possible conviction more than once for the same alleged offense. Bartkus v. Illinois, 359 U.S. 121, 150 (1959) (dissenting opinion); Abbate v. United States, 359 U.S. 187, 201 (1959) (dissenting opinion); Ciucci v. Illinois, 356 U.S. [p448] 571, 575 (1958) (dissenting statement); Green v. United States, 355 U.S. 184 (1957). The opinion of the Court in the case today amply demonstrates that the doctrine of collateral estoppel is a basic and essential part of the Constitution's prohibition against double jeopardy. Accordingly, for the reasons stated in the Court's opinion, I fully agree that petitioner's conviction must be reversed.