302
Stevens, J., dissenting
Process Clause" itself requires proof beyond a reasonable doubt. 397 U. S., at 364. Similarly, whether the analogous probable-cause standard urged by petitioner is more appropriately characterized as substantive or procedural is not a matter of overriding significance. In either event, the same Due Process Clause operates to protect the individual against the abuse of governmental power, by guaranteeing that no criminal prosecution shall be initiated except on a finding of probable cause.
V
According to the plurality, the application of certain portions of the Bill of Rights to the States through the Fourteenth Amendment "has substituted, in these areas of criminal procedure, the specific guarantees of the various provisions of the Bill of Rights . . . for the more generalized language contained in the earlier cases construing the Fourteenth Amendment." Ante, at 273. The plurality then reasons, in purported reliance on Graham v. Connor, 490 U. S. 386 (1989), that because the Fourth Amendment is designed to address pretrial deprivations of liberty, petitioner's claim must be analyzed under that Amendment alone. Ante, at 273-274. In the end, however, The Chief Justice concludes that he need not consider petitioner's claim under the Fourth Amendment after all, because that question was not presented in the petition for certiorari. Ante, at 275.
There are two glaring flaws in the plurality's analysis. First, the pretrial deprivation of liberty at issue in this case is addressed by a particular Amendment, but not the Fourth; rather, it is addressed by the Grand Jury Clause of the Fifth Amendment. That the Framers saw fit to provide a specific procedural guarantee against arbitrary accusations indicates the importance they attached to the liberty interest at stake. Though we have not required the States to use the grand jury procedure itself, it by no means follows that the underlying liberty interest is unworthy of Fourteenth Amendment
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