[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 this page).]
[Duncan v. Louisiana continued
Return to pages 145-161 (Majority opinion).
Return to pages 162-165 (Black concurrence).
Currently at 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] well.'" Dissenting opinion, n. 9. In response to this I can say only that the words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.[166.1] What more precious "privilege" of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of "privileges or immunities of citizens of the United States" which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way. Although I have cited his speech at length in my Adamson dissent appendix, I believe it would be worthwhile to reproduce a part of it here.
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution [the Senator had just read from the old opinion of Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230) (E. D. Pa. 1825)]. To these privileges and immunities, whatever they may be--for they are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining (p.167)to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation....
"... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." Cong. Globe, 39th Cong., 1st Sess., 2765-2766 (1866).
From this I conclude, contrary to my Brother Harlan, that if anything, it is "exceedingly peculiar" to read the Fourteenth Amendment differently from the way I do.
While I do not wish at this time to discuss at length my disagreement with Brother Harlan's forthright and frank restatement of the now discredited Twining doctrine,[168.2] [paragraph continues next page]
[Return to pages 145-161 (Majority opinion).
Return to pages 162-165 (Black concurrence).
Currently at pages 166-167 (Black concurrence cont.)
Proceed to pages 168-170 (Black concurrence cont.)
Proceed to pages 171-193 (Harlan dissent).]
[166.1] My view has been and is that the Fourteenth Amendment, as a whole, makes the Bill of Rights applicable to the States. This would certainly include the language of the Privileges and Immunities Clause, as well as the Due Process Clause.
[168.2] For a more thorough exposition of my views against this approach to the Due Process Clause, see my concurring opinion in Rochin v. California, 342 U.S. 165, 174.