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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).
Return to pages 162-165 (Black concurrence).
Return to pages 166-167 (Black concurrence cont.)
Return to pages 168-170 (Black concurrence cont.)
Currently at pages 171-193 (Harlan dissent).]

[paragraph continued from previous page] given maximum power to develop their own laws and procedures. Yet the due process approach of my Brothers Harlan and Fortas (see other concurring opinion, post, p. 211) does just that since in effect it restricts the States to practices which a majority of this Court is willing to approve on a case-by-case basis. No one is more concerned than I that the States be allowed to use the full scope of their powers as their citizens see fit. And that is why I have continually fought against the expansion of this Court's authority over the States through the use of a broad, general interpretation of due process that permits judges to strike down state laws they do not like.

In closing I want to emphasize that I believe as strongly as ever that the Fourteenth Amendment was intended to make the Bill of Rights applicable to the States. I have been willing to support the selective incorporation doctrine, however, as an alternative, although perhaps less historically supportable than complete incorporation. The selective incorporation process, if used properly, does limit the Supreme Court in the Fourteenth Amendment field to specific Bill of Rights' protections only and keeps judges from roaming at will in their own notions of what policies outside the Bill of Rights are desirable and what are not. And, most importantly for me, the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights' protections applicable to the States.

Mr. Justice Harlan, whom Mr. Justice Stewart joins, dissenting.

Every American jurisdiction provides for trial by jury in criminal cases. The question before us is not whether jury trial is an ancient institution, which it is; nor whether it plays a significant role in the administration (p.172)of criminal justice, which it does; nor whether it will endure, which it shall. The question in this case is whether the State of Louisiana, which provides trial by jury for all felonies, is prohibited by the Constitution from trying charges of simple battery to the court alone. In my view, the answer to that question, mandated alike by our constitutional history and by the longer history of trial by jury, is clearly "no."

The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances. In exercising this responsibility, each State is compelled to conform its procedures to the requirements of the Federal Constitution. The Due Process Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects. It does not, in my view, impose or encourage nationwide uniformity for its own sake; it does not command adherence to forms that happen to be old; and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness.

The Court's approach to this case is an uneasy and illogical compromise among the views of various Justices on how the Due Process Clause should be interpreted. The Court does not say that those who framed the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States. And the Court concedes that it finds nothing unfair about the procedure by which the present appellant was tried. Nevertheless, the Court reverses his conviction: it holds, for some reason not apparent to me, that the Due Process Clause incorporates the particular clause of the Sixth Amendment that requires trial by jury in federal criminal cases--including, as I read its opinion, the sometimes trivial accompanying baggage of judicial interpretation in federal contexts. (p.173)I have raised my voice many times before against the Court's continuing undiscriminating insistence upon fastening on the States federal notions of criminal justice,[173.1] and I must do so again in this instance. With all respect, the Court's approach and its reading of history are altogether topsy-turvy.


I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.[173.2] They were wont to believe rather that the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system.[173.3] The Bill of Rights was considered unnecessary by some[173.4] but insisted upon by others in order to curb the possibility of abuse of power by the strong central government they were creating.[173.5]

The Civil War Amendments dramatically altered the relation of the Federal Government to the States. The first section of the Fourteenth Amendment imposes (p.174)highly significant restrictions on state action. But the restrictions are couched in very broad and general terms: citizenship; privileges and immunities; due process of law; equal protection of the laws. Consequently, for 100 years this Court has been engaged in the difficult process Professor Jaffe has well called "the search for intermediate premises."[174.6] The question has been, Where does the Court properly look to find the specific rules that define and give content to such terms as "life, liberty, or property" and "due process of law"?

A few members of the Court have taken the position that the intention of those who drafted the first section of the Fourteenth Amendment was simply, and exclusively, to make the provisions of the first eight Amendments applicable to state action.[174.7] This view has never been accepted by this Court. In my view, often expressed elsewhere,[174.8] the first section of the Fourteenth Amendment was meant neither to incorporate, nor to be limited to, the specific guarantees of the first eight Amendments. The overwhelming historical evidence marshalled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the Fourteenth Amendment did not think they were "incorporating" the Bill of Rights[174.9] and (p.175)the very breadth and generality of the Amendment's provisions suggest that its authors did not suppose that the Nation would always be limited to mid-19th century conceptions of "liberty" and "due process of law" but that the increasing experience and evolving conscience of the American people would add new "intermediate premises." In short, neither history, nor sense, supports using the Fourteenth Amendment to put the States in a (p.176)constitutional straitjacket with respect to their own development in the administration of criminal or civil law.

Although I therefore fundamentally disagree with the total incorporation view of the Fourteenth Amendment, it seems to me that such a position does at least have the virtue, lacking in the Court's selective incorporation approach, of internal consistency: we look to the Bill of Rights, word for word, clause for clause, precedent for precedent because, it is said, the men who wrote the Amendment wanted it that way. For those who do not accept this "history," a different source of "intermediate premises" must be found. The Bill of Rights is not necessarily irrelevant to the search for guidance in interpreting the Fourteenth Amendment, but the reason for and the nature of its relevance must be articulated.

Apart from the approach taken by the absolute incorporationists, I can see only one method of analysis that has any internal logic. That is to start with the words "liberty" and "due process of law" and attempt to define them in a way that accords with American traditions and our system of government. This approach, involving a much more discriminating process of adjudication than does "incorporation," is, albeit difficult, the one that was followed throughout the 19th and most of the present century. It entails a "gradual process of judicial inclusion and exclusion,"[176.10] seeking, with due recognition of constitutional tolerance for state experimentation and disparity, to ascertain those "immutable principles . . . of free government which no member of the Union may disregard."[176.11] Due process was not restricted to rules fixed in the past, for that "would be to deny every quality (p.177)of the law but its age, and to render it incapable of progress or improvement."[177.12] Nor did it impose nationwide uniformity in details, for

"[t]he Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding."[177.13]

Through this gradual process, this Court sought to define "liberty" by isolating freedoms that Americans of the past and of the present considered more important than any suggested countervailing public objective. The Court also, by interpretation of the phrase "due process of law," enforced the Constitution's guarantee that no State may imprison an individual except by fair and impartial procedures.

The relationship of the Bill of Rights to this "gradual process" seems to me to be twofold. In the first place it has long been clear that the Due Process Clause imposes some restrictions on state action that parallel Bill of Rights restrictions on federal action. Second, and more important than this accidental overlap, is the fact that the Bill of Rights is evidence, at various points, of the content Americans find in the term "liberty" and of American standards of fundamental fairness.

An example, both of the phenomenon of parallelism and the use of the first eight Amendments as evidence of a historic commitment, is found in the partial definition (p.178)of "liberty" offered by Mr. Justice Holmes, dissenting in Gitlow v. New York, 268 U.S. 652:

"The general principle of free speech ... must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." Id., at 672.

As another example, Mr. Justice Frankfurter, speaking for the Court in Wolf v. Colorado, 338 U.S. 25, 27-28, recognized that

"[t]he security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause."

The Court has also found among the procedural requirements of "due process of law" certain rules paralleling requirements of the first eight Amendments. For example, in Powell v. Alabama, 287 U.S. 45, the Court ruled that a State could not deny counsel to an accused in a capital case:

"The fact that the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' ... is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the federal Constitution." Id., at 67. (Emphasis added.)(p.179)

Later, the right to counsel was extended to all felony cases.[179.14] The Court has also ruled, for example, that "due process" means a speedy process, so that liberty will not be long restricted prior to an adjudication, and evidence of fact will not become stale;[179.15] that in a system committed to the resolution of issues of fact by adversary proceedings the right to confront opposing witnesses must be guaranteed;[179.16] and that if issues of fact are tried to a jury, fairness demands a jury impartially selected.[179.17] That these requirements are fundamental to procedural fairness hardly needs redemonstration.

In all of these instances, the right guaranteed against the States by the Fourteenth Amendment was one that had also been guaranteed against the Federal Government by one of the first eight Amendments. The logically critical thing, however, was not that the rights had been found in the Bill of Rights, but that they were deemed, in the context of American legal history, to be fundamental. This was perhaps best explained by Mr. Justice Cardozo, speaking for a Court that included Chief Justice Hughes and Justices Brandeis and Stone, in Palko v. Connecticut, 302 U.S. 319:

"If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed." Id., at 326.

Referring to Powell v. Alabama, supra, Mr. Justice Cardozo continued:

"The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to (p.180)the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing." Id., at 327.

Mr. Justice Cardozo then went on to explain that the Fourteenth Amendment did not impose on each State every rule of procedure that some other State, or the federal courts, thought desirable, but only those rules critical to liberty:

"The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' ... Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them." Id., at 325. (Emphasis added.)

Today's Court still remains unwilling to accept the total incorporationists' view of the history of the Fourteenth Amendment. This, if accepted, would afford a cogent reason for applying the Sixth Amendment to the States. The Court is also, apparently, unwilling to face the task of determining whether denial of trial by jury in the situation before us, or in other situations, is fundamentally (p.181)unfair. Consequently, the Court has compromised on the ease of the incorporationist position, without its internal logic. It has simply assumed that the question before us is whether the Jury Trial Clause of the Sixth Amendment should be incorporated into the Fourteenth, jot-for-jot and case-for-case, or ignored. Then the Court merely declares that the clause in question is "in" rather than "out."[181.18]

The Court has justified neither its starting place nor its conclusion. If the problem is to discover and articulate the rules of fundamental fairness in criminal proceedings, there is no reason to assume that the whole body of rules developed in this Court constituting Sixth Amendment jury trial must be regarded as a unit. The requirement of trial by jury in federal criminal cases has given rise to numerous subsidiary questions respecting the exact scope and content of the right. It surely cannot be that every answer the Court has given, or will give, to such a question is attributable to the Founders; or even that every rule announced carries equal conviction of this Court; still less can it be that every such subprinciple is equally fundamental to ordered liberty.

Examples abound. I should suppose it obviously fundamental to fairness that a "jury" means an "impartial (p.182)jury."[182.19] I should think it equally obvious that the rule, imposed long ago in the federal courts, that "jury" means "jury of exactly twelve,"[182.20] is not fundamental to anything: there is no significance except to mystics in the number 12. Again, trial by jury has been held to require a unanimous verdict of jurors in the federal courts,[182.21] although unanimity has not been found essential to liberty in Britain, where the requirement has been abandoned.[182.22]

One further example is directly relevant here. The co-existence of a requirement of jury trial in federal criminal cases and a historic and universally recognized exception for "petty crimes" has compelled this Court, on occasion, to decide whether a particular crime is petty, or is included within the guarantee.[182.23] Individual cases have been decided without great conviction and without reference to a guiding principle. The Court today holds, for no discernible reason, that if and when the line is drawn its exact location will be a matter of such fundamental importance that it will be uniformly imposed on the States. This Court is compelled to decide such (p.183)obscure borderline questions in the course of administering federal law. This does not mean that its decisions are demonstrably sounder than those that would be reached by state courts and legislatures, let alone that they are of such importance that fairness demands their imposition throughout the Nation.

Even if I could agree that the question before us is whether Sixth Amendment jury trial is totally "in" or totally "out," I can find in the Court's opinion no real reasons for concluding that it should be "in." The basis for differentiating among clauses in the Bill of Rights cannot be that only some clauses are in the Bill of Rights, or that only some are old and much praised, or that only some have played an important role in the development of federal law. These things are true of all. The Court says that some clauses are more "fundamental" than others, but it turns out to be using this word in a sense that would have astonished Mr. Justice Cardozo and which, in addition, is of no help. The word does not mean "analytically critical to procedural fairness" for no real analysis of the role of the jury in making procedures fair is even attempted. Instead, the word turns out to mean "old," "much praised," and "found in the Bill of Rights." The definition of "fundamental" thus turns out to be circular.


Since, as I see it, the Court has not even come to grips with the issues in this case, it is necessary to start from the beginning. When a criminal defendant contends that his state conviction lacked "due process of law," the question before this Court, in my view, is whether he was denied any element of fundamental procedural fairness. Believing, as I do, that due process is an evolving concept and that old principles are subject to re-evaluation in light of later experience, I think it appropriate to deal on its merits with the question whether Louisiana denied (p.184)appellant due process of law when it tried him for simple assault without a jury.

The obvious starting place is the fact that this Court has, in the past, held that trial by jury is not a requisite of criminal due process. In the leading case, Maxwell v. Dow, 176 U.S. 581, Mr. Justice Peckham wrote as follows for the Court:[184.24]

"Trial by jury has never been affirmed to be a necessary requisite of due process of law....


"... The right to be proceeded against only by indictment, and the right to a trial by twelve jurors, are of the same nature, and are subject to the same judgment, and the people in the several States have the same right to provide by their organic law for the change of both or either. . . . [T]he State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. The legislation in question is not, in our opinion, open to either of these objections." Id., at 603-605.(p.185)

In Hawaii v. Mankichi, 190 U.S. 197, the question was whether the Territory of Hawaii could continue its pre-annexation procedure of permitting conviction by non-unanimous juries. The Congressional Resolution of Annexation had provided that municipal legislation of Hawaii that was not contrary to the United States Constitution could remain in force. The Court interpreted the resolution to mean only that those requirements of the Constitution that were "fundamental" would be binding in the Territory. After concluding that a municipal statute allowing a conviction of treason on circumstantial evidence would violate a "fundamental" guarantee of the Constitution, the Court continued:

"We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case [Sixth Amendment jury trial and grand jury indictment] are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their well-being." Id., at 217-218.

Numerous other cases in this Court have assumed that jury trial is not fundamental to ordered liberty.[185.25]

Although it is of course open to this Court to reexamine these decisions, I can see no reason why they (p.186)should now be overturned. It can hardly be said that time has altered the question, or brought significant new evidence to bear upon it. The virtues and defects of the jury system have been hotly debated for a long time,[186.26] and are hotly debated today, without significant change in the lines of argument.[186.27]

The argument that jury trial is not a requisite of due process is quite simple. The central proposition of Palko, supra, a proposition to which I would adhere, is that "due process of law" requires only that criminal trials be fundamentally fair. As stated above, apart from the theory that it was historically intended as a mere shorthand for the Bill of Rights, I do not see what else "due process of law" can intelligibly be thought to mean. If due process of law requires only fundamental (p.187)fairness,[187.28] then the inquiry in each case must be whether a state trial process was a fair one. The Court has held, properly I think, that in an adversary process it is a requisite of fairness, for which there is no adequate substitute, that a criminal defendant be afforded a right to counsel and to cross-examine opposing witnesses. But it simply has not been demonstrated, nor, I think, can it be demonstrated, that trial by jury is the only fair means of resolving issues of fact.

The jury is of course not without virtues. It affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.[187.29] It eases the burden on judges by enabling them to share a part of their sometimes awesome responsibility.[187.30] A jury may, at times, afford a higher justice by refusing to enforce harsh laws (although it necessarily does so haphazardly, raising the questions whether arbitrary enforcement of harsh laws is better than total enforcement, and whether the jury system is to be defended on the ground that jurors sometimes disobey their oaths).[187.31] And the jury may, or may (p.188)not, contribute desirably to the willingness of the general public to accept criminal judgments as just.[188.32]

It can hardly be gainsaid, however, that the principal original virtue of the jury trial--the limitations a jury imposes on a tyrannous judiciary--has largely disappeared. We no longer live in a medieval or colonial society. Judges enforce laws enacted by democratic decision, not by regal fiat. They are elected by the people or appointed by the people's elected officials, and are responsible not to a distant monarch alone but to reviewing courts, including this one.[188.33]

The jury system can also be said to have some inherent defects, which are multiplied by the emergence of the criminal law from the relative simplicity that existed when the jury system was devised.[188.34] It is a cumbersome process, not only imposing great cost in time and money on both the State and the jurors themselves,[188.35] but also contributing to delay in the machinery of justice.[188.36] Untrained jurors are presumably less adept at reaching accurate conclusions of fact than judges, (p.189)particularly if the issues are many or complex.[189.37] And it is argued by some that trial by jury, far from increasing public respect for law, impairs it: the average man, it is said, reacts favorably neither to the notion that matters he knows to be complex are being decided by other average men,[189.38] nor to the way the jury system distorts the process of adjudication.[189.39]

That trial by jury is not the only fair way of adjudicating criminal guilt is well attested by the fact that it is not the prevailing way, either in England or in this country. For England, one expert makes the following estimates. Parliament generally provides that new statutory offenses, unless they are of "considerable gravity" shall be tried to judges; consequently, summary offenses now outnumber offenses for which jury trial is afforded by more than six to one. Then, within the latter category, 84% of all cases are in fact tried to the court. Over all, "the ratio of defendants actually tried by jury becomes in some years little more than 1 per cent."[189.40](p.190)

In the United States, where it has not been as generally assumed that jury waiver is permissible,[190.41] the statistics are only slightly less revealing. Two experts have estimated that, of all prosecutions for crimes triable to a jury, 75% are settled by guilty plea and 40% of the remainder are tried to the court.[190.42] In one State, Maryland, which has always provided for waiver, the rate of court trial appears in some years to have reached 90%.[190.43] The Court recognizes the force of these statistics in stating,

"We would not assert, however, that every criminal trial--or any particular trial--held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury." Ante, at 158.

I agree. I therefore see no reason why this Court should reverse the conviction of appellant, absent any suggestion that his particular trial was in fact unfair, or compel the State of Louisiana to afford jury trial in an as yet unbounded category of cases that can, without unfairness, be tried to a court.

Indeed, even if I were persuaded that trial by jury is a fundamental right in some criminal cases, I could see nothing fundamental in the rule, not yet formulated by the Court, that places the prosecution of appellant for simple battery within the category of "jury crimes" rather than "petty crimes." Trial by jury is ancient, (p.191)it is true. Almost equally ancient, however, is the discovery that, because of it,

"the King's most loving Subjects are much travailed and otherwise encumbered in coming and keeping of the said six Weeks Sessions, to their Costs, Charges, Unquietness."[191.44]

As a result, through the long course of British and American history, summary procedures have been used in a varying category of lesser crimes as a flexible response to the burden jury trial would otherwise impose.

The use of summary procedures has long been widespread. British procedure in 1776 exempted from the requirement of jury trial

"[v]iolations of the laws relating to liquor, trade and manufacture, labor, smuggling, traffic on the highway, the Sabbath, 'cheats,' gambling, swearing, small thefts, assaults, offenses to property, servants and seamen, vagabondage . . . [and] at least a hundred more ...."[191.45] (Emphasis added.)

Penalties for such offenses included heavy fines (with imprisonment until they were paid), whippings, and imprisonment at hard labor.[191.46]

Nor had the Colonies a cleaner slate, although practices varied greatly from place to place with conditions. In Massachusetts, crimes punishable by whipping (up to 10 strokes), the stocks (up to three hours), the ducking stool, and fines and imprisonment were triable to magistrates.[191.47] The decision of a magistrate could, in theory, (p.192)be appealed to a jury, but a stiff recognizance made exercise of this right quite rare.[192.48] New York was somewhat harsher. For example, "anyone adjudged by two magistrates to be an idle, disorderly or vagrant person might be transported whence he came, and on reappearance be whipped from constable to constable with thirty-one lashes by each."[192.49] Anyone committing a criminal offense "under the degree of Grand Larceny" and unable to furnish bail within 48 hours could be summarily tried by three justices.[192.50] With local variations, examples could be multiplied.

The point is not that many offenses that English-speaking communities have, at one time or another, regarded as triable without a jury are more serious, and carry more serious penalties, than the one involved here. The point is rather that until today few people would have thought the exact location of the line mattered very much. There is no obvious reason why a jury trial is a requisite of fundamental fairness when the charge is robbery, and not a requisite of fairness when the same defendant, for the same actions, is charged with assault and petty theft.[192.51] The reason for the historic exception for relatively minor crimes is the obvious one: the burden of jury trial was thought to outweigh its marginal advantages. Exactly why the States should not be allowed to make continuing adjustments, based on the state of (p.193)their criminal dockets and the difficulty of summoning jurors, simply escapes me.

In sum, there is a wide range of views on the desirability of trial by jury, and on the ways to make it most effective when it is used; there is also considerable variation from State to State in local conditions such as the size of the criminal caseload, the ease or difficulty of summoning jurors, and other trial conditions bearing on fairness. We have before us, therefore, an almost perfect example of a situation in which the celebrated dictum of Mr. Justice Brandeis should be invoked. It is, he said,

"one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory ...." New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (dissenting opinion).

This Court, other courts, and the political process are available to correct any experiments in criminal procedure that prove fundamentally unfair to defendants. That is not what is being done today: instead, and quite without reason, the Court has chosen to impose upon every State one means of trying criminal cases; it is a good means, but it is not the only fair means, and it is not demonstrably better than the alternatives States might devise.

I would affirm the judgment of the Supreme Court of Louisiana.

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

[173.1] See, e.g., my opinions in Mapp v. Ohio, 367 U.S. 643, 672 (dissenting); Ker v. California, 374 U.S. 23, 44 (concurring); Malloy v. Hogan, 378 U.S. 1, 14 (dissenting); Pointer v. Texas, 380 U.S. 400, 408 (concurring); Griffin v. California, 380 U.S. 609, 615 (concurring); Klopfer v. North Carolina, 386 U.S. 213, 226 (concurring).

[173.2] Barron v. Baltimore, 7 Pet. 243 (1833), held that the first eight Amendments restricted only federal action.

[173.3] The locus classicus for this viewpoint is The Federalist No. 51 (Madison).

[173.4] The Bill of Rights was opposed by Hamilton and other proponents of a strong central government. See The Federalist No. 84; see generally C. Rossiter, 1787: The Grand Convention 284, 302-303.

[173.5] In Barron v. Baltimore, supra, at 250, Chief Justice Marshall said, "These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments."

[174.6] Jaffe, Was Brandeis an Activist? The Search for Intermediate Premises, 80 Harv. L. Rev. 986 (1967).

[174.7] See Adamson v. California, 332 U.S. 46, 71 (dissenting opinion of Black, J.); O'Neil v. Vermont, 144 U.S. 323, 366, 370 (dissenting opinion of Harlan, J.) (1892); H. Black, "Due Process of Law," in A Constitutional Faith 23 (1968).

[174.8] In addition to the opinions cited in n.1, supra, see, e.g., my opinions in Poe v. Ullman, 367 U.S. 497, 522, at 539-545 (dissenting), and Griswold v. Connecticut, 381 U.S. 479, 499 (concurring).

[174.9] Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949). Professor Fairman was not content to rest upon the overwhelming fact 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 well." He therefore sifted the mountain of material comprising the debates and committee reports relating to the Amendment in both Houses of Congress and in the state legislatures that passed upon it. He found that in the immense corpus of comments on the purpose and effects of the proposed amendment, and on its virtues and defects, there is almost no evidence whatever for "incorporation." The first eight Amendments are so much as mentioned by only two members of Congress, one of whom effectively demonstrated (a) that he did not understand Barron v. Baltimore, 7 Pet. 243, and therefore did not understand the question of incorporation, and (b) that he was not himself understood by his colleagues. One state legislative committee report, rejected by the legislature as a whole, found § 1 of the Fourteenth Amendment superfluous because it duplicated the Bill of Rights: the committee obviously did not understand Barron v. Baltimore either. That is all Professor Fairman could find, in hundreds of pages of legislative discussion prior to passage of the Amendment, that even suggests incorporation.

To this negative evidence the judicial history of the Amendment could be added. For example, it proved possible for a Court whose members had lived through Reconstruction to reiterate the doctrine of Barron v. Baltimore, that the Bill of Rights did not apply to the States, without so much as questioning whether the Fourteenth Amendment had any effect on the continued validity of that principle. E.g., Walker v. Sauvinet, 92 U.S. 90; see generally Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan. L. Rev. 140 (1949).

[176.10] Davidson v. New Orleans, 96 U.S. 97, 104.

[176.11] Holden v. Hardy, 169 U.S. 366, 389.

[177.12] Hurtado v. California, 110 U.S. 516, 529.

[177.13] Missouri v. Lewis, 101 U.S. 22, 31.

[179.14] Gideon v. Wainwright, 372 U.S. 335. The right to counsel was found in the Fourteenth Amendment because, the Court held, it was essential to a fair trial. See 372 U.S., at 342-345.

[179.15] Klopfer v. North Carolina, 386 U.S. 213.

[179.16] Pointer v. Texas, 380 U.S. 400.

[179.17] Irvin v. Dowd, 366 U.S. 717.

[181.18] The same illogical way of dealing with a Fourteenth Amendment problem was employed in Malloy v. Hogan, 378 U.S. 1, which held that the Due Process Clause guaranteed the protection of the Self-Incrimination Clause of the Fifth Amendment against state action. I disagreed at that time both with the way the question was framed and with the result the Court reached. See my dissenting opinion, id., at 14. I consider myself bound by the Court's holding in Malloy with respect to self-incrimination. See my concurring opinion in Griffin v. California, 380 U.S. 609, 615. I do not think that Malloy held, nor would I consider myself bound by a holding, that every question arising under the Due Process Clause shall be settled by an arbitrary decision whether a clause in the Bill of Rights is "in" or "out."

[182.19] The Court has so held in, e.g., Irvin v. Dowd, 366 U.S. 717. Compare Dennis v. United States, 339 U.S. 162.

[182.20] E.g., Rassmussen v. United States, 197 U.S. 516.

[182.21] E.g., Andres v. United States, 333 U.S. 740. With respect to the common-law number and unanimity requirements, the Court suggests that these present no problem because "our decisions interpreting the Sixth Amendment are always subject to reconsideration ...." Ante, at 158, n.30. These examples illustrate a major danger of the "incorporation" approach--that provisions of the Bill of Rights may be watered down in the needless pursuit of uniformity. Cf. my concurring opinion in Ker v. California, 374 U.S. 23, 44. Mr. Justice White alluded to this problem in his dissenting opinion in Malloy v. Hogan, supra, at 38.

[182.22] Criminal Justice Act of 1967, § 13.

[182.23] E.g., Callan v. Wilson, 127 U.S. 540; District of Columbia v. Clawans, 300 U.S. 617; District of Columbia v. Colts, 282 U.S. 63.

[184.24] The precise issue in Maxwell was whether a jury of eight rather than 12 jurors could be employed in criminal prosecutions in Utah. The Court held that this was permissible because the Fourteenth Amendment did not require the States to provide trial by jury at all. The Court seems to think this was dictum. As a technical matter, however, a statement that is critical to the chain of reasoning by which a result is in fact reached does not become dictum simply because a later court can imagine a totally different way of deciding the case. See Jordan v. Massachusetts, 225 U.S. 167, 176, citing Maxwell for the proposition that "the requirement of due process does not deprive a State of the power to dispense with jury trial altogether."

[185.25] E.g., Irvin v. Dowd, supra, at 721; Fay v. New York, 332 U.S. 261, 288; Palko v. Connecticut, supra, at 325; Snyder v. Massachusetts, 291 U.S. 97, 105; Brown v. New Jersey, 175 U.S. 172, 175; Missouri v. Lewis, supra, at 31.

[186.26] E.g., Deady, Trial by Jury, 17 Am. L. Rev. 398, 399-400 (1883):

"Still in these days of progress and experiment, when everything is on trial at the bar of human reason or conceit, it is quite the fashion to speak of jury trial as something that has outlived its usefulness. Intelligent and well-meaning people often sneer at it as an awkward and useless impediment to the speedy and correct administration of justice, and a convenient loop-hole for the escape of powerful and popular rogues. Considering the kind of jury trials we sometimes have in the United States, it must be admitted that this criticism is not without foundation."

[186.27] See generally Kalven, Memorandum Regarding Jury System, printed in Hearings on Recording of Jury Deliberations before the Subcommittee to Investigate the Administration of the Internal Security Act of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., 63-81. In particular,

"the debate has been going on for a long time (at least since 1780) and the arguments which were advanced pro and con haven't changed much in the interim. Nor, contrary to my first impression, does there seem to be any particular period in which the debate grows hotter or colder. It has always been a hot debate." Id., at 63.

[187.28] See, e.g., Snyder v. Massachusetts, supra, at 107-108 (Cardozo, J.):

"So far as the Fourteenth Amendment is concerned, the presence of a defendant [at trial] is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."

[187.29] The point is made by, among others, A. Tocqueville. 1 Democracy in America 285 (Reeve tr.).

[187.30] The argument is developed by Curtis, The Trial Judge and the Jury, 5 Vand. L. Rev. 150 (1952). For example,

"Juries relieve the judge of the embarrassment of making the necessary exceptions. They do this, it is true, by violating their oaths, but this, I think, is better than tempting the judge to violate his oath of office." Id., at 157.

[187.31] See generally G. Williams, The Proof of Guilt 257-263; W. Forsyth, History of Trial by Jury 261.

[188.32] See J. Stephen, A General View of the Criminal Law of England 208-209.

[188.33] See, e.g., Sunderland, The Inefficiency of the American Jury, 13 Mich. L. Rev. 302, 305:

"But times have changed, and the government itself is now under the absolute control of the people. The judges, if appointed, are selected by the agents of the people, and if elected are selected by the people directly. The need for the jury as a political weapon of defense has been steadily diminishing for a hundred years, until now the jury must find some other justification for its continuance."

[188.34] See, e.g., Sunderland, supra, at 303:

"Life was simple when the jury system was young, but with the steadily growing complexity of society and social practices, the facts which enter into legal controversies have become much more complex."

[188.35] Compare Green, Jury Injustice, 20 Jurid. Rev. 132, 133.

[188.36] Cf. Lummus, Civil Juries and the Law's Delay, 12 B. U. L. Rev. 487.

[189.37] See, e.g., McWhorter, Abolish the Jury, 57 Am. L. Rev. 42. Statistics on this point are difficult to accumulate for the reason that the only way to measure jury performance is to compare the result reached by a jury with the result the judge would have reached in the same case. While judge-jury comparisons have many values, it is impossible to obtain a statistical comparison of accuracy in this manner. See generally H. Kalven & H. Zeisel, The American Jury, passim.

[189.38] E.g., Boston, Some Practical Remedies for Existing Defects in the Administration of Justice, 61 U. Pa. L. Rev. 1, 16:

"There is not one important personal or property interest, outside of a Court of justice, which any of us would willingly commit to the first twelve men that come along the street ...."

[189.39] E.g., McWhorter, supra, at 46:

"It is the jury system that consumes time at the public expense in gallery playing and sensational and theatrical exhibitions before the jury, whereby the public interest and the dignity of the law are swallowed up in a morbid, partisan or emotional personal interest in the parties immediately concerned."

[189.40] Williams, supra, at 302.

[190.41] For example, in the federal courts the right of the defendant to waive a jury was in doubt as recently as 1930, when it was established in Patton v. United States, 281 U.S. 276. It was settled in New York only in 1957, People v. Carroll, 7 Misc. 2d 581, 161 N. Y. S. 2d 339, aff'd, 3 N.Y. 2d 686, 148 N.E. 2d 875.

[190.42] Kalven & Zeisel, supra, at 12-32.

[190.43] See Oppenheim, Waiver of Trial by Jury in Criminal Cases, 25 Mich. L. Rev. 695, 728.

[191.44] 37 Hen. 8, c. 7.

[191.45] Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 928. The source of the authors' information is R. Burn, Justice of the Peace (1776).

[191.46] Frankfurter & Corcoran, supra, at 930-934.

[191.47] See, id., at 938-942.

[192.48] Ibid.

[192.49] Frankfurter & Corcoran, supra, at 945. They refer to the Vagrancy Act of 1721, 2 Col. L. (N. Y.) 56.

[192.50] Frankfurter & Corcoran, supra, at 945.

[192.51] The example is taken from Day, Petty Magistrates' Courts in Connecticut, 17 J. Crim. L. C. & P. S., 343, 346-347, cited in Kalven & Zeisel, supra, at 17. The point is that the "huge proportion" of criminal charges for which jury trial has not been available in America, E. Puttkammer, Administration of Criminal Law 87-88, is increased by the judicious action of weary prosecutors.