DUNCAN v. LOUISIANA, 391 U.S. 145 (1968)

88 S.Ct. 1444

DUNCAN v. LOUISIANA.

APPEAL FROM THE SUPREME COURT OF LOUISIANA.

No. 410.

Argued January 17, 1968.

Decided May 20, 1968.

Under Louisiana law simple battery is a misdemeanor punishable by
   a maximum of two years' imprisonment and a $300 fine. Appellant
   was convicted of simple battery and sentenced to 60 days in prison
   and a fine of $150. He had requested a jury trial which was
   denied because the Louisiana Constitution grants jury trials only
   in cases where capital punishment or imprisonment at hard labor
   may be imposed. The Louisiana Supreme Court denied certiorari.
   Held:

     1. Since trial by jury in criminal cases is fundamental to the
   American scheme of justice, the Fourteenth Amendment guarantees
   a right of jury trial in all criminal cases which, were they
   tried in a federal court, would come within the Sixth Amendment's
   guarantee of trial by jury. Pp. 147-158.

     2. The penalty authorized for a particular crime is of major
   relevance in determining whether it is a serious one subject to the
   mandates of the Sixth Amendment, and it is sufficient here, without
   defining the boundary between petty offenses and serious crimes,
   to hold that a crime punishable by two years in prison is a serious
   crime and that appellant was entitled to a jury trial. Pp. 159-162.

250 La. 253, HYPERLINK "javascript:docLink('LACASE','195+SO.2D+142')" 195 So.2d 142, reversed and remanded.

   Richard B. Sobol argued the cause for appellant. With
him on the briefs were Alvin J. Bronstein and Anthony G.
Amsterdam.

   Dorothy D. Wolbrette, Assistant Attorney General of
Louisiana, argued the cause for appellee. With her on
the brief were Jack P. F. Gremillion, Attorney General,
William P. Schuler, Second Assistant Attorney General,
L. K. Clement, Jr., and John M. Currier, Assistant Attorneys
General, Leander H. Perez, Jr., and Lawrence L.
McNamara.

   Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz,
First Assistant Attorney General, and Michael H.
Page 146
Rauch, Assistant Attorney General, filed a brief for the
State of New York, as amicus curiae.

   MR. JUSTICE WHITE delivered the opinion of the
Court.

   Appellant, Gary Duncan, was convicted of simple
battery in the Twenty-fifth Judicial District Court of
Louisiana. Under Louisiana law simple battery is a
misdemeanor, punishable by a maximum of two years'
imprisonment and a $300 fine. Appellant sought trial
by jury, but because the Louisiana Constitution grants
jury trials only in cases in which capital punishment or
imprisonment at hard labor may be imposed,[fn1] the trial
judge denied the request. Appellant was convicted and
sentenced to serve 60 days in the parish prison and pay
a fine of $150. Appellant sought review in the Supreme
Court of Louisiana, asserting that the denial of jury
trial violated rights guaranteed to him by the
United States Constitution. The Supreme Court, finding "[n]o
error of law in the ruling complained of," denied appellant
a writ of certiorari.[fn2] Pursuant to 28 U.S.C. § 1257
Page 147
(2) appellant sought review in this Court, alleging
that the Sixth and Fourteenth Amendments to the
United States Constitution secure the right to jury trial
in state criminal prosecutions where a sentence as long
as two years may be imposed. We noted probable jurisdiction,[fn3]
and set the case for oral argument with No. 52,
Bloom v. Illinois, post, p. 194.

   Appellant was 19 years of age when tried. While driving
on Highway 23 in Plaquemines Parish on October 18,
1966, he saw two younger cousins engaged in a conversation
by the side of the road with four white boys. Knowing
his cousins, Negroes who had recently transferred to
a formerly all-white high school, had reported the occurrence
of racial incidents at the school, Duncan stopped
the car, got out, and approached the six boys. At trial
the white boys and a white onlooker testified, as did appellant
and his cousins. The testimony was in dispute on
many points, but the witnesses agreed that appellant and
the white boys spoke to each other, that appellant encouraged
his cousins to break off the encounter and enter
his car, and that appellant was about to enter the car
himself for the purpose of driving away with his cousins.
The whites testified that just before getting in the car appellant
slapped Herman Landry, one of the white boys,
on the elbow. The Negroes testified that appellant had
not slapped Landry, but had merely touched him. The
trial judge concluded that the State had proved beyond
a reasonable doubt that Duncan had committed simple
battery, and found him guilty.

                                   I.

   The Fourteenth Amendment denies the States the
power to "deprive any person of life, liberty, or property,
without due process of law." In resolving conflicting
Page 148
claims concerning the meaning of this spacious language,
the Court has looked increasingly to the Bill of Rights
for guidance; many of the rights guaranteed by the first
eight Amendments to the Constitution have been held
to be protected against state action by the Due Process
Clause of the Fourteenth Amendment. That clause now
protects the right to compensation for property taken
by the State;[fn4] the rights of speech, press, and religion
covered by the First Amendment;[fn5] the Fourth Amendment
rights to be free from unreasonable searches and
seizures and to have excluded from criminal trials any
evidence illegally seized;[fn6] the right guaranteed by the
Fifth Amendment to be free of compelled self-incrimination;HYPERLINK "http://www.loislaw.com/pns/docview.htp?query=((<WORD>88+S.CT+<WORD>1444)<IN>Cite)&srcquery=P@eLsoKQglAwAAAAAB&sortspec=Date+desc+docnum+desc&curdoc=0&respage=25&hidesummary=0&BookList=P@eLsoKQglKy1OTixOVSgtLkmsUEgzBHPSjCCUMYQygVCmEMoMQplDKAsIZQmhDA2gNNSclGQInZYK4xcpJAFxaLCTpyMAGvgpcA%3D%3D&logauto=" \l "5Bfn7%5D00" [fn7]
and the Sixth Amendment rights to counsel,[fn8]
to a speedy[fn9] and public[fn10] trial, to confrontation of opposing
witnesses,[fn11] and to compulsory process for
obtaining witnesses.[fn12]

   The test for determining whether a right extended
by the Fifth and Sixth Amendments with respect to federal
criminal proceedings is also protected against state
action by the Fourteenth Amendment has been phrased
in a variety of ways in the opinions of this Court. The
question has been asked whether a right is among those
"`fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions,'"
Powell v. Alabama, 287 U.S. 45, 67 (1932);[fn13] whether
Page 149
it is "basic in our system of jurisprudence," In re Oliver,
333 U.S. 257, HYPERLINK "javascript:docLink('USCASE','333+U.S.+257','PG273')" 273 (1948); and whether it is "a fundamental
right, essential to a fair trial," Gideon v. Wainwright,
372 U.S. 335, HYPERLINK "javascript:docLink('USCASE','372+U.S.+335','PG343')" 343-344 (1963); Malloy v. Hogan,
378 U.S. 1, HYPERLINK "javascript:docLink('USCASE','378+U.S.+1','PG6')" 6 (1964); Pointer v. Texas, HYPERLINK "javascript:docLink('USCASE','380+U.S.+400')" 380 U.S. 400,
403 (1965). The claim before us is that the right to
trial by jury guaranteed by the Sixth Amendment meets
these tests. The position of Louisiana, on the other
hand, is that the Constitution imposes upon the States
no duty to give a jury trial in any criminal case, regardless
of the seriousness of the crime or the size of the
punishment which may be imposed. Because we believe
that trial by jury in criminal cases is fundamental to
the American scheme of justice, we hold that the
Fourteenth Amendment guarantees a right of jury trial in
all criminal cases which — were they to be tried in a federal
court — would come within the Sixth Amendment's
guarantee.[fn14] Since we consider the appeal before
Page 150
us to be such a case, we hold that the Constitution
was violated when appellant's demand for jury trial was
refused.
Page 151

   The history of trial by jury in criminal cases has been
frequently told.[fn15] It is sufficient for present purposes
to say that by the time our Constitution was written,
jury trial in criminal cases had been in existence in
England for several centuries and carried impressive
credentials traced by many to Magna Carta.[fn16] Its
preservation and proper operation as a protection against
arbitrary rule were among the major objectives of the
revolutionary settlement which was expressed in the
Declaration and Bill of Rights of 1689. In the 18th
century Blackstone could write:

     "Our law has therefore wisely placed this strong and
     two-fold barrier, of a presentment and a trial by
     jury, between the liberties of the people and the
     prerogative of the crown. It was necessary, for preserving
     the admirable balance of our constitution,
     to vest the executive power of the laws in the
     prince: and yet this power might be dangerous and
     destructive to that very constitution, if exerted
     without check or control, by justices of oyer and
     terminer occasionally named by the crown; who
     might then, as in France or Turkey, imprison, dispatch,
     or exile any man that was obnoxious to the
     government, by an instant declaration that such is
     their will and pleasure. But the founders of the
     English law have, with excellent forecast, contrived
     that . . . the truth of every accusation, whether
     preferred in the shape of indictment, information, or
     appeal, should afterwards be confirmed by the unanimous
Page 152
     suffrage of twelve of his equals and neighbours,
     indifferently chosen and superior to all suspicion."[fn17]

   Jury trial came to America with English colonists, and
received strong support from them. Royal interference
with the jury trial was deeply resented. Among the
resolutions adopted by the First Congress of the American
Colonies (the Stamp Act Congress) on October 19,
1765 — resolutions deemed by their authors to state "the
most essential rights and liberties of the colonists"[fn18] —
was the declaration:

     "That trial by jury is the inherent and invaluable
     right of every British subject in these colonies."

The First Continental Congress, in the resolve of October
14, 1774, objected to trials before judges dependent
upon the Crown alone for their salaries and to trials in
England for alleged crimes committed in the colonies;
the Congress therefore declared:

     "That the respective colonies are entitled to the common
     law of England, and more especially to the great
     and inestimable privilege of being tried by their
     peers of the vicinage, according to the course of that
     law."[fn19]

The Declaration of Independence stated solemn objections
to the King's making "Judges dependent on his Will
alone, for the tenure of their offices, and the amount
and payment of their salaries," to his "depriving us in
many cases, of the benefits of Trial by Jury," and to his
"transporting us beyond Seas to be tried for pretended
offenses." The Constitution itself, in Art. III, § 2,
commanded:

       "The Trial of all Crimes, except in Cases of Impeachment,
     shall be by Jury; and such Trial shall
Page 153
     be held in the State where the said Crimes shall
     have been committed."

Objections to the Constitution because of the absence
of a bill of rights were met by the immediate submission
and adoption of the Bill of Rights. Included was
the Sixth Amendment which, among other things,
provided:

       "In all criminal prosecutions, the accused shall
     enjoy the right to a speedy and public trial, by an
     impartial jury of the State and district wherein the
     crime shall have been committed."[fn20]

   The constitutions adopted by the original States
guaranteed jury trial. Also, the constitution of every
State entering the Union thereafter in one form or
another protected the right to jury trial in criminal
cases.

   Even such skeletal history is impressive support for
considering the right to jury trial in criminal cases to
be fundamental to our system of justice, an importance
Page 154
frequently recognized in the opinions of this Court. For
example, the Court has said:

     "Those who emigrated to this country from England
     brought with them this great privilege `as their
     birthright and inheritance, as a part of that admirable
     common law which had fenced around and
     interposed barriers on every side against the approaches
     of arbitrary power.'"[fn21]

   Jury trial continues to receive strong support. The
laws of every State guarantee a right to jury trial in
serious criminal cases; no State has dispensed with it;
nor are there significant movements underway to do so.
Indeed, the three most recent state constitutional revisions,
in Maryland, Michigan, and New York, carefully
preserved the right of the accused to have the judgment
of a jury when tried for a serious crime.[fn22]

   We are aware of prior cases in this Court in which
the prevailing opinion contains statements contrary to
our holding today that the right to jury trial in serious
criminal cases is a fundamental right and hence must
be recognized by the States as part of their obligation
to extend due process of law to all persons within their
jurisdiction. Louisiana relies especially on Maxwell v.
Dow, 176 U.S. 581 (1900); Palko v. Connecticut,
302 U.S. 319 (1937); and Snyder v. Massachusetts, HYPERLINK "javascript:docLink('USCASE','291+U.S.+97')" 291 U.S. 97
(1934). None of these cases, however, dealt with a
State which had purported to dispense entirely with a
Page 155
jury trial in serious criminal cases. Maxwell held that
no provision of the Bill of Rights applied to the States —
a position long since repudiated — and that the Due
Process Clause of the Fourteenth Amendment did not
prevent a State from trying a defendant for a noncapital
offense with fewer than 12 men on the jury. It did not
deal with a case in which no jury at all had been provided.
In neither Palko nor Snyder was jury trial actually
at issue, although both cases contain important dicta
asserting that the right to jury trial is not essential to
ordered liberty and may be dispensed with by the States
regardless of the Sixth and Fourteenth Amendments.
These observations, though weighty and respectable, are
nevertheless dicta, unsupported by holdings in this Court
that a State may refuse a defendant's demand for a jury
trial when he is charged with a serious crime. Perhaps
because the right to jury trial was not directly at stake,
the Court's remarks about the jury in Palko and Snyder
took no note of past or current developments regarding
jury trials, did not consider its purposes and functions,
attempted no inquiry into how well it was performing
its job, and did not discuss possible distinctions between
civil and criminal cases. In Malloy v. Hogan,
supra, the Court rejected Palko's discussion of the self-incrimination
clause. Respectfully, we reject the prior
dicta regarding jury trial in criminal cases.

   The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way
in which law should be enforced and justice administered.
A right to jury trial is granted to criminal defendants
in order to prevent oppression by the Government.[fn23]
Page 156
Those who wrote our constitutions knew from history
and experience that it was necessary to protect against
unfounded criminal charges brought to eliminate enemies
and against judges too responsive to the voice of higher
authority. The framers of the constitutions strove to
create an independent judiciary but insisted upon further
protection against arbitrary action. Providing an accused
with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt
or overzealous prosecutor and against the compliant,
biased, or eccentric judge. If the defendant preferred
the common-sense judgment of a jury to the more
tutored but perhaps less sympathetic reaction of the
single judge, he was to have it. Beyond this, the jury
trial provisions in the Federal and State Constitutions
reflect a fundamental decision about the exercise of official
power — a reluctance to entrust plenary powers over
the life and liberty of the citizen to one judge or to a
group of judges. Fear of unchecked power, so typical
of our State and Federal Governments in other respects,
found expression in the criminal law in this insistence
upon community participation in the determination of
guilt or innocence. The deep commitment of the Nation
to the right of jury trial in serious criminal cases as a
defense against arbitrary law enforcement qualifies for
protection under the Due Process Clause of the
Fourteenth Amendment, and must therefore be respected by
the States.

   Of course jury trial has "its weaknesses and the potential
for misuse," Singer v. United States, 380 U.S. 24,
35 (1965). We are aware of the long debate, especially
in this century, among those who write about the administration
Page 157
of justice, as to the wisdom of permitting untrained
laymen to determine the facts in civil and
criminal proceedings.[fn24] Although the debate has been
intense, with powerful voices on either side, most of the
controversy has centered on the jury in civil cases. Indeed,
some of the severest critics of civil juries acknowledge
that the arguments for criminal juries are
much stronger.[fn25] In addition, at the heart of the dispute
have been express or implicit assertions that juries
are incapable of adequately understanding evidence or
determining issues of fact, and that they are unpredictable,
quixotic, and little better than a roll of dice.
Yet, the most recent and exhaustive study of the jury
in criminal cases concluded that juries do understand
the evidence and come to sound conclusions in most
of the cases presented to them and that when juries
differ with the result at which the judge would have
arrived, it is usually because they are serving some of
the very purposes for which they were created and for
which they are now employed.[fn26]

   The State of Louisiana urges that holding that the
Fourteenth Amendment assures a right to jury trial will
cast doubt on the integrity of every trial conducted without
a jury. Plainly, this is not the import of our holding.
Our conclusion is that in the American States, as in the
federal judicial system, a general grant of jury trial for
Page 158
serious offenses is a fundamental right, essential for preventing
miscarriages of justice and for assuring that fair
trials are provided for all defendants. 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. Thus we hold no constitutional
doubts about the practices, common in both federal
and state courts, of accepting waivers of jury trial[fn27] and
prosecuting petty crimes without extending a right to
jury trial.[fn28] However, the fact is that in most places
more trials for serious crimes are to juries than to a
court alone; a great many defendants prefer the judgment
of a jury to that of a court.[fn29] Even where defendants
are satisfied with bench trials, the right to a jury
trial very likely serves its intended purpose of making
judicial or prosecutorial unfairness less likely.[fn30]
Page 159

                                   II.

   Louisiana's final contention is that even if it must
grant jury trials in serious criminal cases, the conviction
before us is valid and constitutional because here the petitioner
was tried for simple battery and was sentenced to
only 60 days in the parish prison. We are not persuaded.
It is doubtless true that there is a category of petty
crimes or offenses which is not subject to the
Sixth Amendment jury trial provisionHYPERLINK "http://www.loislaw.com/pns/docview.htp?query=((<WORD>88+S.CT+<WORD>1444)<IN>Cite)&srcquery=P@eLsoKQglAwAAAAAB&sortspec=Date+desc+docnum+desc&curdoc=0&respage=25&hidesummary=0&BookList=P@eLsoKQglKy1OTixOVSgtLkmsUEgzBHPSjCCUMYQygVCmEMoMQplDKAsIZQmhDA2gNNSclGQInZYK4xcpJAFxaLCTpyMAGvgpcA%3D%3D&logauto=" \l "5Bfn31%5D00" [fn31] and should not be
subject to the Fourteenth Amendment jury trial requirement
here applied to the States. Crimes carrying possible
penalties up to six months do not require a jury
trial if they otherwise qualify as petty offenses, Cheff v.
Schnackenberg, 384 U.S. 373 (1966). But the penalty
authorized for a particular crime is of major relevance in
determining whether it is serious or not and may in
itself, if severe enough, subject the trial to the mandates
of the Sixth Amendment. District of Columbia v.
Page 160
Clawans, 300 U.S. 617 (1937). The penalty authorized
by the law of the locality may be taken "as a gauge of
its social and ethical judgments," 300 U.S., at 628, of
the crime in question. In Clawans the defendant was
jailed for 60 days, but it was the 90-day authorized punishment
on which the Court focused in determining that
the offense was not one for which the Constitution
assured trial by jury. In the case before us the Legislature
of Louisiana has made simple battery a criminal
offense punishable by imprisonment for up to two years
and a fine. The question, then, is whether a crime carrying
such a penalty is an offense which Louisiana may
insist on trying without a jury.

   We think not. So-called petty offenses were tried
without juries both in England and in the Colonies and
have always been held to be exempt from the otherwise
comprehensive language of the Sixth Amendment's jury
trial provisions. There is no substantial evidence that
the Framers intended to depart from this established
common-law practice, and the possible consequences to
defendants from convictions for petty offenses have been
thought insufficient to outweigh the benefits to efficient
law enforcement and simplified judicial administration
resulting from the availability of speedy and inexpensive
nonjury adjudications. These same considerations compel
the same result under the Fourteenth Amendment.
Of course the boundaries of the petty offense category
have always been ill-defined, if not ambulatory. In the
absence of an explicit constitutional provision, the definitional
task necessarily falls on the courts, which must
either pass upon the validity of legislative attempts to
identify those petty offenses which are exempt from jury
trial or, where the legislature has not addressed itself
to the problem, themselves face the question in the first
instance. In either case it is necessary to draw a line
in the spectrum of crime, separating petty from serious
Page 161
infractions. This process, although essential, cannot be
wholly satisfactory, for it requires attaching different
consequences to events which, when they lie near the line,
actually differ very little.

   In determining whether the length of the authorized
prison term or the seriousness of other punishment is
enough in itself to require a jury trial, we are counseled
by District of Columbia v. Clawans, supra, to refer to
objective criteria, chiefly the existing laws and practices
in the Nation. In the federal system, petty offenses are
defined as those punishable by no more than six months
in prison and a $500 fine.[fn32] In 49 of the 50 States crimes
subject to trial without a jury, which occasionally include
simple battery, are punishable by no more than one year
in jail.[fn33] Moreover, in the late 18th century in America
crimes triable without a jury were for the most part
punishable by no more than a six-month prison term,
although there appear to have been exceptions to this
rule.[fn34] We need not, however, settle in this case the
exact location of the line between petty offenses and
serious crimes. It is sufficient for our purposes to hold
Page 162
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.[fn35] 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.]

[fn1] Page
146 La. Const., Art. VII, § 41:

"All cases in which the punishment may not be at hard labor
shall . . . be tried by the judge without a jury. Cases, in which
the punishment may be at hard labor, shall be tried by a jury of
five, all of whom must concur to render a verdict; cases, in which
the punishment is necessarily at hard labor, by a jury of twelve,
nine of whom must concur to render a verdict; cases in which the
punishment may be capital, by a jury of twelve, all of whom must
concur to render a verdict."

   La. Rev. Stat. § 14:35 (1950):

   "Simple battery is a battery, without the consent of the victim,
committed without a dangerous weapon.

   "Whoever commits a simple battery shall be fined not more than
three hundred dollars, or imprisoned for not more than two years,
or both."

[fn2] Page 146
250 La. 253, HYPERLINK "javascript:docLink('LACASE','195+SO.2D+142')" 195 So.2d 142 (1967).

[fn3] Page 147
389 U.S. 809 (1967).

[fn4] Page 148
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).

[fn5] Page 148
See, e.g., Fiske v. Kansas, 274 U.S. 380 (1927).

[fn6] Page 148
See Mapp v. Ohio, 367 U.S. 643 (1961).

[fn7] Page 148
Malloy v. Hogan, 378 U.S. 1 (1964).

[fn8] Page 148
Gideon v. Wainwright, 372 U.S. 335 (1963).

[fn9] Page 148
Klopfer v. North Carolina, 386 U.S. 213 (1967).

[fn10] Page 148
In re Oliver, 333 U.S. 257 (1948).

[fn11] Page 148
Pointer v. Texas, 380 U.S. 400 (1965).

[fn12] Page 148
Washington v. Texas, 388 U.S. 14 (1967).

[fn13] Page 148
Quoting from Hebert v. Louisiana, 272 U.S. 312, 316 (1926).

[fn14] Page 149
In one sense recent cases applying provisions of the first eight
Amendments to the States represent a new approach to the "incorporation"
debate. Earlier the Court can be seen as having asked,
when inquiring into whether some particular procedural safeguard
was required of a State, if a civilized system could be imagined that
would not accord the particular protection. For example, Palko v.
Connecticut, 302 U.S. 319, 325 (1937), stated: "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. . . . Few
would be so narrow or provincial as to maintain that a fair and
enlightened system of justice would be impossible without them."
The recent cases, on the other hand, have proceeded upon the valid
assumption that state criminal processes are not imaginary and
theoretical schemes but actual systems bearing virtually every
characteristic of the common-law system that has been developing
contemporaneously in England and in this country. The question
thus is whether given this kind of system a particular procedure is
   Page 150
fundamental — whether, that is, a procedure is necessary to an
Anglo-American regime of ordered liberty. It is this sort of inquiry
that can justify the conclusions that state courts must exclude
evidence seized in violation of the Fourth Amendment, Mapp v.
Ohio, 367 U.S. 643 (1961); that state prosecutors may not comment
on a defendant's failure to testify, Griffin v. California,
380 U.S. 609 (1965); and that criminal punishment may not be imposed
for the status of narcotics addiction, Robinson v. California,
370 U.S. 660 (1962). Of immediate relevance for this case are
the Court's holdings that the States must comply with certain
provisions of the Sixth Amendment, specifically that the States
may not refuse a speedy trial, confrontation of witnesses, and the
assistance, at state expense if necessary, of counsel. See cases
cited in nn. 8-12, supra. Of each of these determinations that a
constitutional provision originally written to bind the Federal Government
should bind the States as well it might be said that the
limitation in question is not necessarily fundamental to fairness in
every criminal system that might be imagined but is fundamental in
the context of the criminal processes maintained by the American
States.

   When the inquiry is approached in this way the question whether
the States can impose criminal punishment without granting a jury
trial appears quite different from the way it appeared in the older
cases opining that States might abolish jury trial. See, e.g., Maxwell
v. Dow, 176 U.S. 581 (1900). A criminal process which was
fair and equitable but used no juries is easy to imagine. It would
make use of alternative guarantees and protections which would
serve the purposes that the jury serves in the English and American
systems. Yet no American State has undertaken to construct such
a system. Instead, every American State, including Louisiana, uses
the jury extensively, and imposes very serious punishments only
after a trial at which the defendant has a right to a jury's verdict.
In every State, including Louisiana, the structure and style of the
criminal process — the supporting framework and the subsidiary
procedures — are of the sort that naturally complement jury trial,
and have developed in connection with and in reliance upon jury
trial.

[fn15] Page 151
E.g., W. Forsyth, History of Trial by Jury (1852); J. Thayer,
A Preliminary Treatise on Evidence at the Common Law (1898);
W. Holdsworth, History of English Law.

[fn16] Page 151
E.g., 4 W. Blackstone, Commentaries on the Laws of England
349 (Cooley ed. 1899). Historians no longer accept this pedigree.
See, e.g., 1 F. Pollock & F. Maitland, The History of English
Law Before the Time of Edward I, at 173, n. 3 (2d ed. 1909).

[fn17] Page 152
Blackstone, supra, at 349-350.

[fn18] Page 152
R. Perry, ed., Sources of Our Liberties 270 (1959).

[fn19] Page 152
Id., at 288.

[fn20] Page 153
Among the proposed amendments adopted by the House of
Representatives in 1789 and submitted to the Senate was Article
Fourteen:

"No State shall infringe the right of trial by Jury in criminal cases,
nor the rights of conscience, nor the freedom of speech, or of the
press."

The Senate deleted this article in adopting the amendments which
became the Bill of Rights. Journal of the First Session of the
Senate 72; 1 Annals of Congress 76; Brennan, The Bill of Rights
and the States, in E. Cahn, The Great Rights 65, 69 (1963);
E. Dumbauld, The Bill of Rights 46, 215 (1957). This relatively
clear indication that the framers of the Sixth Amendment did
not intend its jury trial requirement to bind the States is, of
course, of little relevance to interpreting the Due Process Clause
of the Fourteenth Amendment, adopted specifically to place limitations
upon the States. Cf. Fiske v. Kansas, 274 U.S. 380 (1927);
Gitlow v. New York, 268 U.S. 652, 666 (1925).

[fn21] Page 154
Thompson v. Utah, 170 U.S. 343, 349-350 (1898), quoting 2
J. Story, Commentaries on the Constitution of the United States
§ 1779. See also Irvin v. Dowd, 366 U.S. 717, 721-722 (1961);
United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955);
Ex parte Milligan, 4 Wall. 2, 122-123 (1866): People v. Garbutt,
17 Mich. 9, 27 (1868).

[fn22] Page 154
Proposed Maryland Constitution, Art. 1, § 1.07 (defeated at
referendum May 14, 1968): Michigan Constitution, Art. 1, § 14; Proposed
New York Constitution, Art. 1, § 7b (defeated at referendum
Nov. 7, 1967).

[fn23] Page 155
"The [jury trial] clause was clearly intended to protect the
accused from oppression by the Government. . . ." Singer v. United
States, 380 U.S. 24, 31 (1965).

"The first object of any tyrant in Whitehall would be to make
Parliament utterly subservient to his will; and the next to overthrow
or diminish trial by jury, for no tyrant could afford to leave
   Page 156
a subject's freedom in the hands of twelve of his countrymen.
So that trial by jury is more than an instrument of justice and
more than one wheel of the constitution: it is the lamp that shows
that freedom lives." P. Devlin, Trial by Jury 164 (1956).

[fn24] Page
157 A thorough summary of the arguments that have been made for
and against jury trial and an extensive bibliography of the relevant
literature is available at 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 (1955). A more selective bibliography
appears at H. Kalven, Jr. & H. Zeisel, The American Jury 4, n. 2
(1966).

[fn25] Page 157
E.g., J. Frank, Courts on Trial 145 (1949); H. Sidgwick, The
Elements of Politics 498 (4th ed. 1919).

[fn26] Page 157
Kalven & Zeisel, n. 24, supra.

[fn27] Page 158
See Patton v. United States, 281 U.S. 276 (1930).

[fn28] Page 158
See Part II, infra.

[fn29] Page 158
Kalven & Zeisel, n. 24, supra, c. 2.

[fn30] Page 158
Louisiana also asserts that if due process is deemed to include
the right to jury trial, States will be obligated to comply with all
past interpretations of the Sixth Amendment, an amendment which
in its inception was designed to control only the federal courts and
which throughout its history has operated in this limited environment
where uniformity is a more obvious and immediate consideration.
In particular, Louisiana objects to application of the decisions
of this Court interpreting the Sixth Amendment as guaranteeing a
12-man jury in serious criminal cases, Thompson v. Utah, 170 U.S. 343
(1898); as requiring a unanimous verdict before guilt can be
found, Maxwell v. Dow, 176 U.S. 581, 586 (1900); and as barring
procedures by which crimes subject to the Sixth Amendment jury
trial provision are tried in the first instance without a jury but at
the first appellate stage by de novo trial with a jury, Callan v.
Wilson, 127 U.S. 540, 557 (1888). It seems very unlikely to
us that our decision today will require widespread changes in state
criminal processes. First, our decisions interpreting the
Sixth Amendment are always subject to reconsideration, a fact amply
demonstrated by the instant decision. In addition, most of the
   Page 159
States have provisions for jury trials equal in breadth to the
Sixth Amendment, if that amendment is construed, as it has been, to
permit the trial of petty crimes and offenses without a jury. Indeed,
there appear to be only four States in which juries of fewer
than 12 can be used without the defendant's consent for offenses
carrying a maximum penalty of greater than one year. Only in
Oregon and Louisiana can a less-than-unanimous jury convict for
an offense with a maximum penalty greater than one year. However
10 States authorize first-stage trials without juries for crimes
carrying lengthy penalties; these States give a convicted defendant
the right to a de novo trial before a jury in a different court. The
statutory provisions are listed in the briefs filed in this case.

[fn31] Page 159
Cheff v. Schnackenberg, 384 U.S. 373 (1966); District of
Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United
States, 195 U.S. 65 (1904); Natal v. Louisiana, 139 U.S. 621
(1891); see Callan v. Wilson, 127 U.S. 540 (1888). See generally
Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional
Guaranty of Trial by Jury, 39 Harv. L. Rev. 917 (1926);
Kaye, Petty Offenders Have No Peers!, 26 U. Chi. L. Rev. 245
(1959).

[fn32] Page 161
18 U.S.C. § 1.

[fn33] Page 161
Indeed, there appear to be only two instances, aside from the
Louisiana scheme, in which a State denies jury trial for a crime
punishable by imprisonment for longer than six months. New
Jersey's disorderly conduct offense, N.J. Stat. Ann. § 2A:169-4
(1953), carries a one-year maximum sentence but no jury trial. The
denial of jury trial was upheld by a 4-3 vote against state constitutional
attack in State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953).
New York State provides a jury within New York City only for
offenses bearing a maximum sentence greater than one year. See
People v. Sanabria, 42 Misc.2d 464, 249 N.Y.S.2d 66 (Sup.Ct.
1964).

[fn34] Page 161
Frankfurter & Corcoran, n. 31, supra. In the instant case
Louisiana has not argued that a penalty of two years' imprisonment
is sufficiently short to qualify as a "petty offense," but only that
the penalty actually imposed on Duncan, imprisonment for 60 days,
is within the petty offense category.

[fn35] Page 162
It is argued that Cheff v. Schnackenberg, 384 U.S. 373 (1966),
interpreted the Sixth Amendment as meaning that to the extent
that the length of punishment is a relevant criterion in distinguishing
between serious crimes and petty offenses, the critical factor is not
the length of the sentence authorized but the length of the penalty
actually imposed. In our view that case does not reach the situation
where a legislative judgment as to the seriousness of the crime is
imbedded in the statute in the form of an express authorization to
impose a heavy penalty for the crime in question. Cheff involved
criminal contempt, an offense applied to a wide range of conduct
including conduct not so serious as to require jury trial absent a
long sentence. In addition criminal contempt is unique in that
legislative bodies frequently authorize punishment without stating
the extent of the penalty which can be imposed. The contempt
statute under which Cheff was prosecuted, 18 U.S.C. § 401, treated
the extent of punishment as a matter to be determined by the
forum court. It is therefore understandable that this Court in
Cheff seized upon the penalty actually imposed as the best evidence
of the seriousness of the offense for which Cheff was tried.

   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
Page 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
Page 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,
Page 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
Page 166
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.[fn1]
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
Page 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,[fn2]
Page 168
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
Page 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."[fn3] (Emphasis added.) As early
as 1354 the words "due process of law" were used in an
English statute interpreting Magna Carta,[fn4] 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
Page 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,"[fn5] 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
Page 171
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.

[fn1] Page 166
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.

[fn2] Page 168
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.

[fn3] Page 169
See Murray's Lessee v. Hoboken Land and Improvement Co.,
18 How. 272, 276.

[fn4] Page 169
28 Edw. 3, c. 3 (1354).

[fn5] Page 170
See Malloy v. Hogan, 378 U.S. 1, 10; Pointer v. Texas, 380 U.S. 400,
406; Miranda v. Arizona, HYPERLINK "javascript:docLink('USCASE','384+U.S.+436')" 384 U.S. 436, HYPERLINK "javascript:docLink('USCASE','384+U.S.+436','PG464')" 464.

   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
Page 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 HYPERLINK "javascript:docLink('USCONST','AMEND.+VI','0')" 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.
Page 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,[fn1]
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.

   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.[fn2] 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.[fn3] The Bill of Rights was
considered unnecessary by some[fn4] but insisted upon by
others in order to curb the possibility of abuse of power
by the strong central government they were creating.[fn5]

   The Civil War Amendments dramatically altered the
relation of the Federal Government to the States. The
first section of the Fourteenth Amendment imposes
Page 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."[fn6] 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.[fn7] This view has never been
accepted by this Court. In my view, often expressed
elsewhere,[fn8] 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[fn9] and
Page 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
Page 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,"[fn10] 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."[fn11] Due process was not restricted to rules
fixed in the past, for that "would be to deny every quality
Page 177
of the law but its age, and to render it incapable of
progress or improvement."[fn12] 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."[fn13]

   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
Page 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.)
Page 179

Later, the right to counsel was extended to all felony
cases.[fn14] 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;[fn15] that in a system committed
to the resolution of issues of fact by adversary
proceedings the right to confront opposing witnesses
must be guaranteed;[fn16] and that if issues of fact are tried
to a jury, fairness demands a jury impartially selected.[fn17]
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
Page 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
Page 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."[fn18]

   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 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
Page 182
jury."[fn19] I should think it equally obvious that the rule,
imposed long ago in the federal courts, that "jury" means
"jury of exactly twelve,"[fn20] 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,[fn21] although unanimity has not been found essential
to liberty in Britain, where the requirement has been
abandoned.[fn22]

   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.[fn23] 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
Page 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.

                                   II.

   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
Page 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:[fn24]

       "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.
Page 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.[fn25]

   Although it is of course open to this Court to reexamine
these decisions, I can see no reason why they
Page 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,[fn26]
and are hotly debated today, without significant change
in the lines of argument.[fn27]

   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
Page 187
fairness,[fn28] 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.[fn29] It eases the burden on judges
by enabling them to share a part of their sometimes
awesome responsibility.[fn30] 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).[fn31] And the jury may, or may
Page 188
not, contribute desirably to the willingness of the general
public to accept criminal judgments as just.[fn32]

   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.[fn33]

   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.[fn34] It is a
cumbersome process, not only imposing great cost in
time and money on both the State and the jurors themselves,[fn35]
but also contributing to delay in the machinery
of justice.[fn36] Untrained jurors are presumably less adept
at reaching accurate conclusions of fact than judges,
Page 189
particularly if the issues are many or complex.[fn37] 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,[fn38] nor to the way the jury system
distorts the process of adjudication.[fn39]

   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."[fn40]
Page 190

   In the United States, where it has not been as generally
assumed that jury waiver is permissible,[fn41] 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.[fn42] In one State,
Maryland, which has always provided for waiver, the
rate of court trial appears in some years to have reached
90%.[fn43] 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,
Page 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."[fn44]

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. . . ."[fn45] (Emphasis added.)

Penalties for such offenses included heavy fines (with
imprisonment until they were paid), whippings, and imprisonment
at hard labor.[fn46]

   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.[fn47]
The decision of a magistrate could, in theory,
Page 192
be appealed to a jury, but a stiff recognizance made exercise
of this right quite rare.[fn48] 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."[fn49] 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.[fn50] 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.[fn51] 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
Page 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.

[fn1] Page 173
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, HYPERLINK "javascript:docLink('USCASE','380+U.S.+609')" 380 U.S. 609, HYPERLINK "javascript:docLink('USCASE','380+U.S.+609','PG615')" 615
(concurring); Klopfer v. North Carolina, 386 U.S. 213, 226 (concurring).

[fn2] Page 173
Barron v. Baltimore, 7 Pet. 243 (1833), held that the first eight
Amendments restricted only federal action.

[fn3] Page 173
The locus classicus for this viewpoint is The Federalist No. 51
(Madison).

[fn4] Page 173
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.

[fn5] Page 173
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."

[fn6] Page 174
Jaffe, Was Brandeis an Activist? The Search for Intermediate
Premises, 80 Harv. L. Rev. 986 (1967).

[fn7] Page 174
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).

[fn8] Page 174
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).

[fn9] Page 174
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
   Page 175
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).

[fn10] Page 176
Davidson v. New Orleans, 96 U.S. 97, 104.

[fn11] Page 176
Holden v. Hardy, 169 U.S. 366, 389.

[fn12] Page 177
Hurtado v. California, 110 U.S. 516, 529.

[fn13] Page 177
Missouri v. Lewis, 101 U.S. 22, 31.

[fn14] Page 179
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.

[fn15] Page 179
Klopfer v. North Carolina, 386 U.S. 213.

[fn16] Page 179
Pointer v. Texas, 380 U.S. 400.

[fn17] Page 179
Irvin v. Dowd, 366 U.S. 717.

[fn18] Page 181
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."

[fn19] Page 182
The Court has so held in, e.g., Irvin v. Dowd, 366 U.S. 717.
Compare Dennis v. United States, 339 U.S. 162.

[fn20] Page 182
E.g., Rassmussen v. United States, 197 U.S. 516.

[fn21] Page 182
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, HYPERLINK "javascript:docLink('USCASE','374+U.S.+23','PG44')" 44. MR. JUSTICE WHITE alluded to this problem in his
dissenting opinion in Malloy v. Hogan, supra, at 38.

[fn22] Page 182
Criminal Justice Act of 1967, § 13.

[fn23] Page 182
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.

[fn24] Page 184
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."

[fn25] Page 185
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, HYPERLINK "javascript:docLink('USCASE','291+U.S.+97','PG105')" 105; Brown v. New Jersey, HYPERLINK "javascript:docLink('USCASE','175+U.S.+172')" 175 U.S. 172,
175; Missouri v. Lewis, supra, at 31.

[fn26] Page 186
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."

[fn27] Page 186
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.

[fn28] Page 187
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."

[fn29] Page 187
The point is made by, among others, A. Tocqueville. 1 Democracy
in America 285 (Reeve tr.).

[fn30] Page 187
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.

[fn31] Page 187
See generally G. Williams, The Proof of Guilt 257-263; W.
Forsyth, History of Trial by Jury 261.

[fn32] Page 188
See J. Stephen, A General View of the Criminal Law of England
208-209.

[fn33] Page 188
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."

[fn34] Page 188
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."

[fn35] Page 188
Compare Green, Jury Injustice, 20 Jurid. Rev. 132, 133.

[fn36] Page 188
Cf. Lummus, Civil Juries and the Law's Delay, 12 B. U.L.
Rev. 487.

[fn37] Page 189
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.

[fn38] Page 189
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. . . ."

[fn39] Page 189
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."

[fn40] Page 189
Williams, supra, at 302.

[fn41] Page 190
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, HYPERLINK "javascript:docLink('NYAPP','3+N.Y.2D+686')" 3 N.Y.2d 686, HYPERLINK "javascript:docLink('NYAPP','148+N.E.2D+875')" 148 N.E.2d 875.

[fn42] Page 190
Kalven & Zeisel, supra, at 12-32.

[fn43] Page 190
See Oppenheim, Waiver of Trial by Jury in Criminal Cases,
25 Mich. L. Rev. 695, 728.

[fn44] Page 191
37 Hen. 8, c. 7.

[fn45] Page 191
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).

[fn46] Page 191
Frankfurter & Corcoran, supra, at 930-934.

[fn47] Page 191
See, id., at 938-942.

[fn48] Page 192
Ibid.

[fn49] Page 192
Frankfurter & Corcoran, supra, at 945. They refer to the
Vagrancy Act of 1721, 2 Col. L. (N.Y.) 56.

[fn50] Page 192
Frankfurter & Corcoran, supra, at 945.

[fn51] Page 192
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.
Page 194