In the 1908 case of Twining v. State of New Jersey, Albert C. Twining and David C. Cornell were convicted in a New Jersey court for fraudulent use of bank funds based on their refusal to testify against themselves during trial proceedings, which was considered as evidence of guilt under state law. The defendants appealed to the U.S Supreme Court arguing that this violated their Fifth Amendment right against self-incrimination. The Supreme Court ruled 7-2 in favor of New Jersey, stating that the Fifth Amendment's protection against self-incrimination did not apply to state courts because it wasn't among those fundamental principles deemed necessary to liberty and justice; thus states could compel testimony without violating constitutional rights. This decision upheld the principle known as "dual sovereignty," where federal and state governments can have different laws regarding similar issues until specific protections are incorporated into states via Fourteenth Amendment due process clause by later rulings.

In the dissenting opinion for Twining v. State of New Jersey, Justice John Marshall Harlan argued that the Fourteenth Amendment's due process clause should be interpreted to incorporate all aspects of the Bill of Rights, including Fifth Amendment protections against self-incrimination at state level trials. He contended that these rights are fundamental and essential to a free society and thus must apply universally across both federal and state jurisdictions. Harlan believed this interpretation was necessary in order to maintain individual liberties against potential abuses by states' power. His view represented an early form of what would later become known as "selective incorporation," a legal doctrine asserting certain protections within the Bill of Rights extend to state governments through the Fourteenth Amendment's due process clause.