In the case of Benton v. Maryland, 1968, John Dalmer Benton was initially convicted on charges of burglary and larceny in a state court. However, he appealed his conviction to the Supreme Court arguing that his retrial violated the Double Jeopardy Clause of the Fifth Amendment which protects against multiple prosecutions for the same offense. The State argued that this clause only applied to federal cases as per precedent set by Palko v Connecticut (1937). The Supreme Court overruled its decision in Palko and held that protection against double jeopardy is fundamental and essential to a fair trial thus it should be incorporated into states through Fourteenth Amendment's Due Process Clause. Therefore, Benton’s retrial was deemed unconstitutional under both federal and state law.

In the dissenting opinion for Benton v. Maryland, Justice Harlan argued that the majority's decision to incorporate the Double Jeopardy Clause of the Fifth Amendment into state law was a departure from established legal precedent and an overreach of judicial power. He contended that this move disregarded principles of federalism by imposing a uniform standard on states rather than allowing them to develop their own rules regarding double jeopardy within broad constitutional boundaries. Furthermore, he criticized what he saw as an arbitrary process in which some but not all provisions of the Bill of Rights were incorporated into state law based on subjective judgments about their fundamental nature. Instead, Justice Harlan advocated for adherence to traditional standards under which only those rights deemed essential to liberty and justice would be applied against state actions through selective incorporation.