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[Cite as Duncan v. Louisiana, 391 U.S. 145, 166-167 (1968). Note: This decision concerns the Sixth Amendment right to a jury trial. The Court extended this right against State infringement under the Fourteenth Amendment. Justice Black, joined by Justice Douglas, concurred and quoted Senator Howard's commentary on the Fourteenth Amendment which referred to the privileges and immunites of citizens as consisting of "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as ... the right to keep and bear arms...." (P. 166-167).]

[Duncan v. Louisiana continued
Return to pages 145-161 (Majority opinion).
Currently at pages 162-165 (Black concurrence).
Proceed to pages 166-167 (Black concurrence cont.)
Proceed to pages 168-170 (Black concurrence cont.)
Proceed to pages 171-193 (Harlan dissent).]

[paragraph continued from previous page] that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense.[162.35] Consequently, appellant was entitled to a jury trial and it was error to deny it.

The judgment below is reversed and the case is remanded for proceedings not inconsistent with this opinion.

[For concurring opinion of Mr. Justice Fortas, see post, p. 211.]

Mr. Justice Black, with whom Mr. Justice Douglas joins, concurring.

The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Art. III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants tried in state courts. With (p.163)this holding I agree for reasons given by the Court. I also agree because of reasons given in my dissent in Adamson v. California, 332 U.S. 46, 68. In that dissent, at 90, I took the position, contrary to the holding in Twining v. New Jersey, 211 U.S. 78, that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States. This Court in Palko v. Connecticut, 302 U.S. 319, 323, decided in 1937, although saying "[t]here is no such general rule," went on to add that the Fourteenth Amendment may make it unlawful for a State to abridge by its statutes the

"freedom of speech which the First Amendment safeguards against encroachment by the Congress ... or the like freedom of the press ... or the free exercise of religion ... or the right of peaceable assembly ... or the right of one accused of crime to the benefit of counsel .... In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states." Id., at 324-325.

And the Palko opinion went on to explain, 302 U.S., at 326, that certain Bill of Rights' provisions were made applicable to the States by bringing them "within the Fourteenth Amendment by a process of absorption." Thus Twining v. New Jersey, supra, refused to hold that any one of the Bill of Rights' provisions was made applicable to the States by the Fourteenth Amendment, but Palko, which must be read as overruling Twining on this point, concluded that the Bill of Rights Amendments that are "implicit in the concept of ordered liberty" are "absorbed" by the Fourteenth as protections against (p.164)state invasion. In this situation I said in Adamson v. California, 332 U.S., at 89, that, while "I would ... extend to all the people of the nation the complete protection of the Bill of Rights," that "[i]f the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process." See Gideon v. Wainwright, 372 U.S. 335. And I am very happy to support this selective process through which our Court has since the Adamson case held most of the specific Bill of Rights' protections applicable to the States to the same extent they are applicable to the Federal Government. Among these are the right to trial by jury decided today, the right against compelled self-incrimination, the right to counsel, the right to compulsory process for witnesses, the right to confront witnesses, the right to a speedy and public trial, and the right to be free from unreasonable searches and seizures.

All of these holdings making Bill of Rights' provisions applicable as such to the States mark, of course, a departure from the Twining doctrine holding that none of those provisions were enforceable as such against the States. The dissent in this case, however, makes a spirited and forceful defense of that now discredited doctrine. I do not believe that it is necessary for me to repeat the historical and logical reasons for my challenge to the Twining holding contained in my Adamson dissent and Appendix to it. What I wrote there in 1947 was the product of years of study and research. My appraisal of the legislative history followed 10 years of legislative experience as a Senator of the United States, not a bad way, I suspect, to learn the value of what is said in legislative debates, committee discussions, committee reports, and various other steps taken in the course of passage of bills, resolutions, (p.165)and proposed constitutional amendments. My Brother Harlan's objections to my Adamson dissent history, like that of most of the objectors, relies most heavily on a criticism written by Professor Charles Fairman and published in the Stanford Law Review. 2 Stan. L. Rev. 5 (1949). I have read and studied this article extensively, including the historical references, but am compelled to add that in my view it has completely failed to refute the inferences and arguments that I suggested in my Adamson dissent. Professor Fairman's "history" relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means. The historical appendix to my Adamson dissent leaves no doubt in my mind that both its sponsors and those who opposed it believed the Fourteenth Amendment made the first eight Amendments of the Constitution (the Bill of Rights) applicable to the States.

In addition to the adoption of Professor Fairman's "history," the dissent states that "the great words of the four clauses of the first section of the Fourteenth Amendment would have been an exceedingly peculiar way to say that 'The rights heretofore guaranteed against federal intrusion by the first eight Amendments are henceforth guaranteed against state intrusion as [paragraph continues next page]

[Return to pages 145-161 (Majority opinion).
Currently at pages 162-165 (Black concurrence).
Proceed to pages 166-167 (Black concurrence cont.)
Proceed to pages 168-170 (Black concurrence cont.)
Proceed to pages 171-193 (Harlan dissent).]