[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).
Return to pages 162-165 (Black concurrence).
Currently at pages 166-167 (Black concurrence cont.)
Currently at pages 168-170 (Black concurrence cont.)
Proceed to pages 171-193 (Harlan dissent).]
[paragraph continued from previous page] I do want to point out what appears to me to be the basic difference between us. His view, as was indeed the view of Twining, is that "due process is an evolving concept" and therefore that it entails a "gradual process of judicial inclusion and exclusion" to ascertain those "immutable principles . . . of free government which no member of the Union may disregard." Thus the Due Process Clause is treated as prescribing no specific and clearly ascertainable constitutional command that judges must obey in interpreting the Constitution, but rather as leaving judges free to decide at any particular time whether a particular rule or judicial formulation embodies an "immutable principl[e] of free government" or is "implicit in the concept of ordered liberty," or whether certain conduct "shocks the judge's conscience" or runs counter to some other similar, undefined and undefinable standard. Thus due process, according to my Brother Harlan, is to be a phrase with no permanent meaning, but one which is found to shift from time to time in accordance with judges' predilections and understandings of what is best for the country. If due process means this, the Fourteenth Amendment, in my opinion, might as well have been written that "no person shall be deprived of life, liberty or property except by laws that the judges of the United States Supreme Court shall find to be consistent with the immutable principles of free government." It is impossible for me to believe that such unconfined power is given to judges in our Constitution that is a written one in order to limit governmental power.
Another tenet of the Twining doctrine as restated by my Brother Harlan is that "due process of law requires only fundamental fairness." But the "fundamental (p.169)fairness" test is one on a par with that of shocking the conscience of the Court. Each of such tests depends entirely on the particular judge's idea of ethics and morals instead of requiring him to depend on the boundaries fixed by the written words of the Constitution. Nothing in the history of the phrase "due process of law" suggests that constitutional controls are to depend on any particular judge's sense of values. The origin of the Due Process Clause is Chapter 39 of Magna Carta which declares that "No free man shall be taken, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land."[169.3] (Emphasis added.) As early as 1354 the words "due process of law" were used in an English statute interpreting Magna Carta,[169.4] and by the end of the 14th century "due process of law" and "law of the land" were interchangeable. Thus the origin of this clause was an attempt by those who wrote Magna Carta to do away with the so-called trials of that period where people were liable to sudden arrest and summary conviction in courts and by judicial commissions with no sure and definite procedural protections and under laws that might have been improvised to try their particular cases. Chapter 39 of Magna Carta was a guarantee that the government would take neither life, liberty, nor property without a trial in accord with the law of the land that already existed at the time the alleged offense was committed. This means that the Due Process Clause gives all Americans, whoever they are and wherever they happen to be, the right to be tried by independent and unprejudiced courts using established procedures and applying valid pre-existing laws. There is not one word of legal history that justifies making the (p.170)term "due process of law" mean a guarantee of a trial free from laws and conduct which the courts deem at the time to be "arbitrary," "unreasonable," "unfair," or "contrary to civilized standards." The due process of law standard for a trial is one in accordance with the Bill of Rights and laws passed pursuant to constitutional power, guaranteeing to all alike a trial under the general law of the land.
Finally I want to add that I am not bothered by the argument that applying the Bill of Rights to the States, "according to the same standards that protect those personal rights against federal encroachment,"[170.5] interferes with our concept of federalism in that it may prevent States from trying novel social and economic experiments. I have never believed that under the guise of federalism the States should be able to experiment with the protections afforded our citizens through the Bill of Rights. As Justice Goldberg said so wisely in his concurring opinion in Pointer v. Texas, 380 U.S. 400:
"to deny to the States the power to impair a fundamental constitutional right is not to increase federal power, but, rather, to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual. In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government, federal or state, which underlies our concepts of federalism." 380 U.S., at 414.
It seems to me totally inconsistent to advocate, on the one hand, the power of this Court to strike down any state law or practice which it finds "unreasonable" or "unfair" and, on the other hand, urge that the States be [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.)
Currently at pages 168-170 (Black concurrence cont.)
Proceed to pages 171-193 (Harlan dissent).]