Once it is agreed that the Fourteenth Amendment's due process clause requires that a state comply with some minimum procedural safeguards when depriving a person of life, liberty or property, then the question becomes one of determining what procedural safeguards are to be included within those minimum standards.
If you feel that the due process clause requires that a state provide a trial before execution, do you believe that it requires a state to provide a trial before imposing a prison sentence? Under what, if any circumstances, do you believe that a state is required to offer a criminal defendant a trial by jury? Does the due process clause require a state to permit a criminal defendant to appear with an attorney to assist him in his defense? Does the due process clause forbid a state from conducting secret trials that are not open to the public? Does the due process clause requre that a state permit a criminal defendant to confront and cross-examine the witnesses against him or would it be permissible for a state to allow the prosecutor to just relate to the court what the witnesses told him in private? Is a state required by the due process clause to allow a criminal defendant to call witnesses of his own? Is the state required to allow the defendant to testify on his own behalf or can a state pass a law forbidding a criminal defendant from testifying on his own behalf because the state legislature believes that such testimony would be unreliable given the obvious bias? Can a state, consistent with the due process clause, compel a criminal defendant to testify in his own case? If so, what level of force would be consistent with the due process clause?
These are the kinds of questions that must inevitably be faced once it is agreed that the due process clause does impose some standards on the states' criminal justice systems. When the Supreme Court decides that any particular procedural safeguard is or is not required by the due process clause, it is expected to write an opinion explaining its reasoning. In order to avoid the appearance of just being arbitrary, it has sought to find (read devise) a formulation that will allow it to justify its particular decisions in this area. Black hoped that by adopting the view that the due process clause simply incorporates the provisions of the Bill of Rights, the Court would have a more workable platform from which the Court could decide and justify its decisions in this area.