Ashe v. Swenson/Concurrence Black

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, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (1959) (dissenting opinion); Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729, (1959) (dissenting opinion); Cuicci v. Illinois, 356 U.S. 571, 575, 78 S.Ct. 839, 841, 2 L.Ed.2d 983 (1958) (dissenting statement); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (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.