391
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
n1 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."
n2 250
n3 389
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,
I.
[***HR1] [***HR2]
[***HR3] [***HR4] [***HR5]
[***HR6] [***HR7] [***HR8]
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 [*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 [**1447]
clause now protects the right to compensation for property taken by the
State; n4 the rights of speech, press, and religion covered by the First
Amendment; n5 the Fourth Amendment rights to be free from unreasonable searches
and seizures and to have excluded from criminal trials any evidence illegally
seized; n6 the right guaranteed by the Fifth Amendment to be free of compelled
self-incrimination; n7 and the Sixth Amendment rights to counsel, n8 to a
speedy n9 and public n10 trial, to confrontation of opposing witnesses, n11 and
to compulsory process for obtaining witnesses. n12
n4 Chicago, B. & Q. R. Co. v.
n5 See, e. g., Fiske v.
n6 See Mapp v.
n7 Malloy v. Hogan, 378 U.S. 1 (1964).
n8 Gideon v. Wainwright, 372 U.S. 335
(1963).
n9 Klopfer v.
n10 In re Oliver, 333 U.S. 257 (1948).
n11 Pointer v.
n12
[***HR9] [***HR10A]
The test for determining whether a right extended by the [***496]
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); n13 whether [*149]
it is "basic in our system of jurisprudence," In re Oliver,
333 U.S. 257, 273 (1948); and whether it is "a fundamental right,
essential to a fair trial," Gideon v. Wainwright, 372 U.S.
335, 343-344 (1963); Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer
v. Texas, 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
n13 Quoting from Hebert v.
n14 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.
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
[*151]
The history of trial by jury in criminal cases has been frequently told.
n15 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
"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, [**1449] 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 [*152]
suffrage of twelve of his equals and neighbours, indifferently chosen
and superior to all suspicion." n17
n15 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.
n16 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).
n17 Blackstone, supra, at 349-350.
[***HR11A] Jury trial came to
" [***498] 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
"That the respective colonies are entitled to the common law of
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 [*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." n20
n18 R. Perry, ed., Sources of Our Liberties 270
(1959).
n19
[***HR11B]
n20 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.
The constitutions adopted by the
original States guaranteed jury trial. Also, the constitution of every State
entering the
[***HR12] 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
[*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.'" n21
n21 Thompson v.
Jury trial continues to
receive [***499] 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
n22 Proposed Maryland Constitution, Art. 1, § 1.07 (defeated at referendum May 14, 1968);
Michigan Constitution, Art. 1, § 14;
Proposed
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.
[***HR13] 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. n23
[*156] Those who wrote our
constitutions knew from history and
[***500] 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.
n23 "The [jury trial] clause was clearly intended
to protect the accused from oppression by the Government . . . ." Singer
v.
"The first object of any tyrant in
Of course jury trial has "its
weaknesses and the potential for misuse," Singer v.
n24 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).
n25 E. g., J. Frank, Courts on Trial 145
(1949); H. Sidgwick, The Elements of Politics 498 (4th ed. 1919).
n26 Kalven & Zeisel, n. 24, supra.
[***HR14] The State of
n27 See Patton v.
n28 See Part II, infra.
n29 Kalven & Zeisel, n. 24, supra, c. 2.
n30 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 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
[*159] II.
[***HR15] [***HR16]
n31 Cheff v. Schnackenberg, 384 U.S. 373
(1966);
[***HR10B] [***HR17]
We think not. So-called petty
offenses were tried without juries both in
[***503]
[***HR18] [***HR19]
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 [**1454] those punishable by no more than six months
in prison and a $ 500 fine. n32 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. n33 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. n34 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 [*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. n35 Consequently, appellant was entitled to a jury trial and it was
error to deny it.
n32 18 U. S. C. §
1.
n33 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).
n34 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.
n35 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.
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.]
CONCURBY:
BLACK
CONCUR:
MR. JUSTICE BLACK, with whom MR.
JUSTICE DOUGLAS joins, concurring.
The Court today holds that the
right to trial by jury guaranteed
[***504] 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 [*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 "there is no such
general [**1455] 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
[*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 "if 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
[***505] 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, [*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 [**1456]
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 [*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. n1 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
[***506] 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 [*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.
[**1457]
"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.
n1 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.
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, n2 [*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
[***507] 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.
n2 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.
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 [*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
[**1458] his peers and by the law
of the land." n3 (Emphasis added.) As early as 1354 the words
"due process of law" were used in an English statute interpreting
Magna Carta, n4 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
[***508] 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 [*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.
n3 See Murray's Lessee v. Hoboken Land and
Improvement Co., 18 How. 272, 276.
n4 28 Edw. 3, c. 3 (1354).
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," n5 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 [*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 [**1459]
of due process that permits judges to strike down state laws they do not
like.
n5 See Malloy v. Hogan, 378 U.S. 1, 10; Pointer
v. Texas, 380 U.S. 400, 406; Miranda v. Arizona, 384 U.S.
436, 464.
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 [***509] 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.
DISSENTBY:
HARLAN
DISSENT:
[**1460contd]
[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this pagination
accurately reflects the pagination of the original published document.]
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 [*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 [**1461] for all felonies, is prohibited by the
Constitution from trying charges of simple battery to the court alone. In my view, the answer to that question, mandated alike by our constitutional history
and by the longer history of trial by jury, is clearly "no."
The States have always borne
primary responsibility for operating the machinery of criminal justice within
their borders, and adapting it to their particular circumstances. In exercising this responsibility, each State
is compelled to conform its procedures to the requirements of the Federal
Constitution. The Due Process Clause of
the Fourteenth Amendment requires that those procedures be fundamentally fair
in all respects. It does not, in my
view, impose or encourage nationwide uniformity for its own sake; it does not
command adherence to forms that happen to be old; and it does not impose on the
States the rules that may be in force in the federal courts except where such
rules are also found to be essential to basic fairness.
The Court's approach to this case
is an uneasy and illogical compromise among the views of various Justices on
how the Due Process Clause should be interpreted. The Court does not say that those who framed
the Fourteenth Amendment intended to make the Sixth Amendment applicable to the
States. And the Court concedes that it
finds nothing unfair about the procedure by which the present appellant was
tried. Nevertheless, the Court reverses his
conviction: it holds, for some reason not apparent to me, that the Due Process
Clause incorporates the particular clause of the Sixth Amendment that requires
trial by jury in federal criminal cases -- including, as I read its opinion,
the sometimes trivial accompanying baggage of judicial interpretation in
federal contexts. [*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, n1 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.
n1 See, e. g., my opinions in Mapp v. Ohio,
367 U.S. 643, 672 (dissenting); Ker v. California, 374 U.S. 23,
44 (concurring); Malloy v. Hogan, 378 U.S. 1, 14 (dissenting); Pointer
v. Texas, 380 U.S. 400, 408 (concurring); Griffin v. California,
380 U.S. 609, 615 (concurring); Klopfer v. North Carolina, 386
U.S. 213, 226 (concurring).
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 [***510]
Rights so fundamental that they should operate directly against the
States. n2 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. n3 The Bill of Rights was considered unnecessary by some n4 but
insisted upon by others in order to curb the possibility of abuse of power by
the strong central government they were creating. n5
n2 Barron v. Baltimore, 7 Pet. 243
(1833), held that the first eight Amendments restricted only federal action.
n3 The locus classicus for this viewpoint is
The Federalist No. 51 (Madison).
n4 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.
n5 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."
The [**1462]
Civil War Amendments dramatically altered the relation of the Federal
Government to the States. The first
section of the Fourteenth Amendment imposes
[*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." n6 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"?
n6 Jaffe, Was Brandeis an Activist? The Search for Intermediate Premises, 80
Harv. L. Rev. 986 (1967).
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. n7 This view has never
been accepted by this Court. In my view,
often expressed elsewhere, n8 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 n9 and [*175]
[**1463] the very [***511]
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 [*176] constitutional straitjacket with respect to
their own development in the administration of criminal or civil law.
n7 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).
n8 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).
n9 Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights? The Original Understanding,
2 Stan. L. Rev. 5 (1949). Professor Fairman was not content to rest upon the
overwhelming fact that the great words of the four clauses of the first section
of the Fourteenth Amendment would have been an exceedingly peculiar way to say
that "The rights heretofore guaranteed against federal intrusion by the
first eight Amendments are henceforth guaranteed against state intrusion as
well." He therefore sifted the mountain of material comprising the debates
and committee reports relating to the Amendment in both Houses of Congress and
in the state legislatures that passed upon it.
He found that in the immense corpus of comments on the purpose and
effects of the proposed amendment, and on its virtues and defects, there is
almost no evidence whatever for "incorporation." The first eight
Amendments are so much as mentioned by only two members of Congress, one of
whom effectively demonstrated (a) that he did not understand Barron v. Baltimore,
7 Pet. 243, and therefore did not understand the question of incorporation, and
(b) that he was not himself understood by his colleagues. One state legislative committee report,
rejected by the legislature as a whole, found §
1 of the Fourteenth Amendment superfluous because it duplicated the Bill
of Rights: the committee obviously did not understand Barron v. Baltimore
either. That is all Professor Fairman
could find, in hundreds of pages of legislative discussion prior to passage of
the Amendment, that even suggests incorporation.
To this negative evidence the judicial history of the
Amendment could be added. For example,
it proved possible for a Court whose members had lived through Reconstruction
to reiterate the doctrine of Barron v. Baltimore, that the Bill
of Rights did not apply to the States, without so much as questioning whether
the Fourteenth Amendment had any effect on the continued validity of that
principle. E. g., Walker v. Sauvinet,
92 U.S. 90; see generally Morrison, Does the Fourteenth Amendment Incorporate
the Bill of Rights? The Judicial Interpretation,
2 Stan. L. Rev. 140 (1949).
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," n10 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." n11 Due process was not restricted to rules
fixed in the past, for that "would be to
[***512] deny every quality [*177]
of the law but its age, and to render it incapable of progress or
improvement." n12 Nor did it impose nationwide uniformity in details, for
"the 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." n13
n10 Davidson v. New Orleans, 96 U.S. 97,
104.
n11 Holden v. Hardy, 169 U.S. 366, 389.
n12 Hurtado v. California, 110 U.S. 516,
529.
n13 Missouri v. Lewis, 101 U.S. 22, 31.
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 [**1464]
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 [*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
"the 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
[***513] 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.)
[*179] Later, the right to counsel was extended to
all felony cases. n14 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; n15 that in a system committed to the resolution of issues of fact by
adversary proceedings the right to confront opposing witnesses must be
guaranteed; n16 and that if issues of fact are tried to a jury, fairness
demands a jury impartially selected. n17 That these [**1465]
requirements are fundamental to procedural fairness hardly needs redemonstration.
n14 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.
n15 Klopfer v. North Carolina, 386 U.S.
213.
n16 Pointer v. Texas, 380 U.S. 400.
n17 Irvin v. Dowd, 366 U.S. 717.
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
[*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. [***514] 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 [*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." n18
n18 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."
The Court has justified neither
its starting place nor its conclusion.
If the problem is to discover and articulate the rules of fundamental
fairness in criminal proceedings, there is no reason to assume that the whole
body of rules developed [**1466] 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 [*182]
jury." n19 I should think it equally obvious that the rule, imposed
long ago in the federal courts, that "jury" means "jury of
exactly twelve," n20 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, n21 although
[***515] unanimity has not been
found essential to liberty in Britain, where the requirement has been
abandoned. n22
n19 The Court has so held in, e. g., Irvin v. Dowd,
366 U.S. 717. Compare Dennis v. United States, 339 U.S. 162.
n20 E. g., Rassmussen v. United States,
197 U.S. 516.
n21 E. g., Andres v. United States, 333
U.S. 740. With respect to the common-law number and unanimity requirements, the
Court suggests that these present no problem because "our decisions
interpreting the Sixth Amendment are always subject to reconsideration . . .
." Ante, at 158, n. 30.
These examples illustrate a major danger of the
"incorporation" approach -- that provisions of the Bill of Rights may
be watered down in the needless pursuit of uniformity. Cf. my concurring opinion in Ker v. California,
374 U.S. 23, 44. MR. JUSTICE WHITE alluded to this problem in his dissenting
opinion in Malloy v. Hogan, supra, at 38.
n22 Criminal Justice Act of 1967, § 13.
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. n23 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 [*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.
n23 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.
Even [**1467]
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 [***516] appropriate to deal on its merits with the
question whether Louisiana denied
[*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: n24
"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. . . . The
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.
[*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 nonunanimous 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 [**1468]
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. n25
n24 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."
n25 E. g., Irvin v. Dowd, supra, at 721;
Fay v. New York, 332 U.S. 261, 288; Palko v. Connecticut,
supra, at 325; Snyder v. Massachusetts, 291 U.S. 97, 105; Brown
v. New Jersey, 175 U.S. 172, 175; Missouri v. Lewis, supra,
at 31.
Although [***517]
it is of course open to this Court to reexamine these decisions, I can
see no reason why they [*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, n26 and are hotly debated today, without
significant change in the lines of argument. n27
n26 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."
n27 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.
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 [*187]
fairness, n28 then the inquiry
[**1469] 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.
n28 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."
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.
n29 It eases the burden on judges by enabling them to share a part of their sometimes
awesome responsibility. n30 A jury may, at times, afford a higher justice
by [***518] 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). n31
And the jury may, or may [*188] not, contribute desirably to the willingness
of the general public to accept criminal judgments as just. n32
n29 The point is made by, among others, A.
Tocqueville. 1 Democracy in America 285
(Reeve tr.).
n30 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.
n31 See generally G. Williams, The Proof of Guilt
257-263; W. Forsyth, History of Trial by Jury 261.
n32 See J. Stephen, A General View of the Criminal Law
of England 208-209.
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. n33
n33 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."
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. n34 It is a cumbersome process, not only imposing great cost in time
and money on both the State and the jurors themselves, n35 but also
contributing to delay in the machinery of justice. n36 Untrained jurors are
presumably less adept at reaching accurate conclusions of fact than
judges, [*189] particularly if the issues [**1470]
are many or complex. n37 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, n38 nor to the way the jury
system distorts the process of adjudication. n39
n34 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."
n35 Compare Green, Jury Injustice, 20 Jurid. Rev. 132,
133.
n36 Cf. Lummus, Civil Juries and the Law's Delay, 12
B. U. L. Rev. 487.
n37 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.
n38 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 . . . ."
n39 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."
That trial by jury is not the only
fair way of adjudicating criminal
[***519] 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."
n40
n40 Williams, supra, at 302.
[*190]
In the United States, where it has not been as generally assumed that
jury waiver is permissible, n41 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.
n42 In one State, Maryland, which has always provided for waiver, the
rate of court trial appears in some years to have reached 90%. n43 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.
n41 For example, in the federal courts the right of
the defendant to waive a jury was in doubt as recently as 1930, when it was
established in Patton v. United States, 281 U.S. 276. It was
settled in New York only in 1957, People v. Carroll, 7 Misc. 2d
581, 161 N. Y. S. 2d 339, aff'd, 3 N. Y. 2d 686, 148 N. E. 2d 875.
n42 Kalven & Zeisel, supra, at 12-32.
n43 See Oppenheim, Waiver of Trial by Jury in Criminal
Cases, 25 Mich. L. Rev. 695, 728.
Indeed, even if I were persuaded
that trial by jury is a fundamental right in some criminal cases, I could see
nothing [**1471] 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,
[*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." n44
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.
n44 37 Hen. 8, c. 7.
The use of summary procedures has
long been widespread. British procedure
in 1776 exempted from the requirement of jury trial
"violations of the laws relating to liquor, trade and manufacture,
labor, smuggling, traffic on the highway, the Sabbath, 'cheats,' gambling,
swearing, small thefts, assaults, offenses [***520]
to property, servants and seamen, vagabondage . . . [and] at least a
hundred more . . . ." n45 (Emphasis added.)
Penalties for such offenses included heavy fines (with imprisonment
until they were paid), whippings, and imprisonment at hard labor. n46
n45 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).
n46 Frankfurter & Corcoran, supra, at
930-934.
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. n47 The
decision of a magistrate could, in theory,
[*192] be appealed to a jury, but
a stiff recognizance made exercise of this right quite rare. n48 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." n49 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. n50 With local variations, examples could be multiplied.
n47 See, id., at 938-942.
n48 Ibid.
n49 Frankfurter & Corcoran, supra, at
945. They refer to the Vagrancy Act of
1721, 2 Col. L. (N. Y.) 56.
n50 Frankfurter & Corcoran, supra, at 945.
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. n51 The reason for the
[**1472] 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
[*193] their criminal dockets and
the difficulty of summoning jurors, simply escapes me.
n51 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.
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
[***521] 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.