U.S. Supreme Court Duncan v. Louisiana, 391
U.S. 145 (1968) Duncan v. Louisiana No. 410 Argued January 17,
1968 Decided May 20, 1968 391
U.S. 145 APPEAL FROM THE SUPREME COURT OF
LOUISIANA. Syllabus 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. 391 U. S.
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. 391 U. S.
159 -162.

															250 La. 253, 195 So. 2d 142, reversed and remanded. Page 391 U. S. 146 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, [ Footnote
1 ] the trial judge denied the request. Appellant was convicted
and sentenced to serve 60 days in the parish prison and pay a fine
of $10. 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. [ Footnote 2 ] Pursuant to 28 U.S.C. Page 391 U. S. 147 § 1257(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, [ Footnote 3 ] and set the case for oral argument with No.
52, Bloom v. Illinois, post, p. 391 U. S. 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 391 U. S. 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;
[ Footnote 4 ] the rights of
speech, press, and religion covered by the First Amendment;
[ Footnote 5 ] the Fourth
Amendment rights to be free from unreasonable searches and seizures
and to have excluded from criminal trials any evidence illegally
seized; [ Footnote 6 ] the right
guaranteed by the Fifth Amendment to be free of compelled
self-incrimination; [ Footnote
7 ] and the Sixth Amendment rights to counsel, [ Footnote 8 ] to a speedy [ Footnote 9 ] and public [ Footnote 10 ] trial, to confrontation of opposing
witnesses, [ Footnote 11 ] and
to compulsory process for obtaining witnesses. [ Footnote 12 ]

															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 , 287 U. S. 67 (1932); [ Footnote 13 ]
whether Page 391 U. S. 149 it is "basic in our system of jurisprudence," In re
Oliver, 333 U. S. 257 , 333 U. S. 273 (1948), and whether it is "a fundamental right, essential to a fair
trial," Gideon v. Wainwright, 372 U.
S. 335 , 372 U. S.
343 -344 (1963); Malloy v. Hogan, 378 U. S.
1 , 378 U. S. 6 (1964); Pointer v. Texas, 380 U.
S. 400 , 380 U. S. 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. [ Footnote 14 ]
Since we consider the appeal before Page 391 U. S. 150 us to be such a case, we hold that the Constitution was violated
when appellant's demand for jury trial was refused. Page 391 U. S. 151 The history of trial by jury in criminal cases has been
frequently told. [ Footnote
15 ] 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. [ Footnote 16 ] 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 391 U. S. 152 suffrage of twelve of his equals and neighbours, indifferently
chosen and superior to all suspicion. [ Footnote 17 ]"

															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"
[ Footnote 18 ] -- 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. [ Footnote
19 ]"

															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 391 U. S. 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. [ Footnote 20 ]"

															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 391 U. S. 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.' [ Footnote
21 ]"

															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. [ Footnote 22 ]

															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, 291 U. S. 97 (1934). None of these cases, however, dealt with a State which had
purported to dispense entirely with a Page 391 U. S. 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. [ Footnote 23 ] Page 391 U. S. 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 , 380 U. S. 35 (1965). We are aware of the long debate, especially in this
century, among those who write about the administration Page 391 U. S. 157 of justice, as to the wisdom of permitting untrained laymen to
determine the facts in civil and criminal proceedings. [ Footnote 24 ] 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. [ Footnote 25 ] 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.
[ Footnote 26 ]

															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 391 U. S. 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
[ Footnote 27 ] and
prosecuting petty crimes without extending a right to jury trial.
[ Footnote 28 ] 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. [ Footnote 29 ] 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. [ Footnote
30 ] Page 391 U. S. 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 provision [ Footnote 31 ] 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 391 U. S. 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 300 U. S. 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 391 U. S. 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. [ Footnote 32 ] 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. [ Footnote 33 ] 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.
[ Footnote 34 ] 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 391 U. S. 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. [ Footnote
35 ] 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. 391 U. S.
211 .]

															[ Footnote 1 ]

															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."

															[ Footnote 2 ]

															250 La. 253, 195 So .2d 142 (1967).

															[ Footnote 3 ]

															389 U.S. 809 (1967).

															[ Footnote 4 ] Chicago, B. & Q. R. Co. v. Chico, 166 U.
S. 226 (1897).

															[ Footnote 5 ] See, e.g., Fiske v. Kansas, 274 U.
S. 380 (1927).

															[ Footnote 6 ] See Mapp v. Ohio, 367 U. S. 643 (1961).

															[ Footnote 7 ] Malloy v. Hogan, 378 U. S. 1 (1964).

															[ Footnote 8 ] Gideon v. Wainwright, 372 U. S. 335 (1963).

															[ Footnote 9 ] Klopfer v. North Carolina, 386 U.
S. 213 (1967).

															[ Footnote 10 ] In re Oliver, 333 U. S. 257 (1948).

															[ Footnote 11 ] Pointer v. Texas, 380 U. S. 400 (1965).

															[ Footnote 12 ] Washington v. Texas, 388 U. S. 14 (1967).

															[ Footnote 13 ]

															Quoting from Hebert v. Louisiana, 272 U.
S. 312 , 272 U. S. 316 (1926).

															[ Footnote 14 ]

															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 , 302 U. S. 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
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.

															[ Footnote 15 ] 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.

															[ Footnote 16 ] 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).

															[ Footnote 17 ]

															Blackstone, supra, at 349-350.

															[ Footnote 18 ]

															R. Perry, ed., Sources of Our Liberties 270 (1959).

															[ Footnote 19 ] Id. at 288.

															[ Footnote 20 ]

															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 , 268 U. S. 666 (1925).

															[ Footnote 21 ] Thompson v. Utah, 170 U. S. 343 , 170 U. S.
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 , 366 U. S.
721 -722 (1961); United States ex rel. Toth v.
Quarles, 350 U. S. 11 , 350 U. S. 16 (1955); Ex parte
Milligan , 4 Wall. 2, 71 U. S. 122 -123
(1866); People v. Garbutt, 17 Mich. 9, 27 (1868).

															[ Footnote 22 ]

															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).

															[ Footnote 23 ]

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

															"The first object of any tyrant in Whitehall would be to make
Parliament utterly subservient to his will, and the net to
overthrow or diminish trial by jury, for no tyrant could afford to
leave 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).

															[ Footnote 24 ]

															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).

															[ Footnote 25 ] E.g, J. Frank, Courts on Trial 145 (1949); H. Sidgwick,
The Elements of Politics 498 (4th ed.1919).

															[ Footnote 26 ]

															Kalven & Zeisel, n 24, supra. [ Footnote 27 ] See Patton v. United States, 281 U.
S. 276 (1930).

															[ Footnote 28 ] See 391 U. S. infra. [ Footnote 29 ]

															Kalven & Zeisel, n 24, supra, c. 2.

															[ Footnote 30 ]

															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 , 176 U. S. 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 , 127 U. S. 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 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.

															[ Footnote 31 ] 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).

															[ Footnote 32 ]

															18 U.S.C. § 1.

															[ Footnote 33 ]

															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. Sarlabria, 42 Misc.2d 464, 249 N.Y.S.2d 66
(Sup.Ct.1964).

															[ Footnote 34 ]

															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.

															[ Footnote 35 ]

															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 391 U. S. 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 , 332 U. S. 68 . In
that dissent, at 332 U. S. 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 , 302 U. S. 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 302 U. S.
324 -325. And the Palko opinion went on to
explain, 302 U.S. at 302 U. S. 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 391 U. S. 164 state invasion. In this situation, I said in Adamson v.
California, 332 U.S. at 332 U. S. 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 391 U. S. 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 391 U. S. 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. [ Footnote 2/1 ] What more
precious "privilege" of American citizenship could there be than
that privilege to claim the protections of our great Bill of
Rights? I suggest that any reading of "privileges or immunities of
citizens of the United States" which excludes the Bill of Rights'
safeguards renders the words of this section of the Fourteenth
Amendment meaningless. Senator Howard, who introduced the
Fourteenth Amendment for passage in the Senate, certainly read the
words this way. Although I have cited his speech at length in my Adamson dissent appendix, I believe it would be worthwhile
to reproduce a part of it here.

															"Such is the character of the privileges and immunities spoken
of in the second section of the fourth article of the Constitution
[the Senator had just read from the old opinion of Corfield v.
Coryell, 6 Fed.Cas. 546 (No. 3,230) (E. D.Pa. 1825)]. To these
privileges and immunities, whatever they may be -- for they are not
and cannot be fully defined in their entire extent and precise
nature to these should be added the personal rights guarantied and
secured by the first eight amendments of the Constitution; such as
the freedom of speech and of the press; the right of the people
peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining Page 391 U. S. 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, [ Footnote 2/2 ] Page 391 U. S. 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 391 U. S. 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. [ Footnote 2/3 ]"

															(Emphasis added.) As early as 1354, the words "due process of
law" were used in an English statute interpreting Magna Carta,
[ Footnote 2/4 ] and, by the end of
the 14th century, "due process of law" and "law of the land" were
interchangeable. Thus, the origin of this clause was an attempt by
those who wrote Magna Carta to do away with the so-called trials of
that period where people were liable to sudden arrest and summary
conviction in courts and by judicial commissions with no sure and
definite procedural protections and under laws that might have been
improvised to try their particular cases. Chapter 39 of Magna Carta
was a guarantee that the government would take neither life,
liberty, nor property without a trial in accord with the law of the
land that already existed at the time the alleged offense was
committed. This means that the Due Process Clause gives all
Americans, whoever they are and wherever they happen to be, the
right to be tried by independent and unprejudiced courts using
established procedures and applying valid preexisting laws. There
is not one word of legal history that justifies making the Page 391 U. S. 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," [ Footnote 2/5 ]
interferes with our concept of federalism in that it may prevent
States from trying novel social and economic experiments. I have
never believed that under the guise of federalism the States should
be able to experiment with the protections afforded our citizens
through the Bill of Rights. As Justice Goldberg said so wisely in
his concurring opinion in Pointer v. Texas, 380 U.
S. 400 :

															"to deny to the States the power to impair a fundamental
constitutional right is not to increase federal power, but, rather,
to limit the power of both federal and state governments in favor
of safeguarding the fundamental rights and liberties of the
individual. In my view, this promotes, rather than undermines, the
basic policy of avoiding excess concentration of power in
government, federal or state, which underlies our concepts of
federalism."

															380 U.S. at 380 U. S. 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 391 U. S. 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. 391 U. S. 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.

															[ Footnote 2/1 ]

															My view has been and is that the Fourteenth Amendment, as a
whole, makes the Bill of Rights applicable to the States. This
would certainly include the language of the Privileges and
Immunities Clause, as well as the Due Process Clause.

															[ Footnote 2/2 ]

															For a more thorough exposition of my views against this approach
to the Due Process Clause, see my concurring opinion in Rochin v. California, 342 U. S. 165 , 342 U. S.
174 .

															[ Footnote 2/3 ] See Murray's Lessee v. Hoboken
Land and Improvement Co. , 18 How. 272, 59 U. S.
276 .

															[ Footnote 2/4 ]

															28 Edw. 3, c. 3 (1354)

															[ Footnote 2/5 ] See Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 10 ; Pointer v. Texas, 380 U. S. 40 , 380 U. S. 406 ; Miranda v. Arizona, 384 U. S. 436 , 384 U. S.
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 391 U. S. 172 of criminal Justice, which it does; nor whether it will endure,
which it shall. The question in this case is whether the State of
Louisiana, which provides trial by jury for all felonies, is
prohibited by the Constitution from trying charges of simple
battery to the court alone. In my view, the answer to that
question, mandated alike by our constitutional history and by the
longer history of trial by jury, is clearly "no."

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

															The Court's approach to this case is an uneasy and illogical
compromise among the views of various Justices on how the Due
Process Clause should be interpreted. The Court does not say that
those who framed the Fourteenth Amendment intended to make the
Sixth Amendment applicable to the States. And the Court concedes
that it finds nothing unfair about the procedure by which the
present appellant was tried. Nevertheless, the Court reverses his
conviction: it holds, for some reason not apparent to me, that the
Due Process Clause incorporates the particular clause of the Sixth
Amendment that requires trial by jury in federal criminal cases --
including, as I read its opinion, the sometimes trivial
accompanying baggage of judicial interpretation in federal
contexts. Page 391 U. S. 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, [ Footnote 3/1 ] and I must do so again in this instance.
With all respect, the Court's approach and its reading of history
are altogether topsy-turvy. I 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. [ Footnote 3/2 ] They were wont to believe
rather that the security of liberty in America rested primarily
upon the dispersion of governmental power across a federal system.
[ Footnote 3/3 ] The Bill of Rights
was considered unnecessary by some, [ Footnote 3/4 ] but insisted upon by others in order to
curb the possibility of abuse of power by the strong central
government they were creating. [ Footnote 3/5 ]

															The Civil War Amendments dramatically altered the relation of
the Federal Government to the States. The first section of the
Fourteenth Amendment imposes Page 391 U. S. 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." [ Footnote 3/6 ] The question has been, where does the
Court properly look to find the specific rules that define and give
content to such terms as "life, liberty, or property" and "due
process of law"?

															A few members of the Court have taken the position that the
intention of those who drafted the first section of the Fourteenth
Amendment was simply, and exclusively, to make the provisions of
the first eight Amendments applicable to state action. [ Footnote 3/7 ] This view has never been
accepted by this Court. In my view, often expressed elsewhere,
[ Footnote 3/8 ] the first section of
the Fourteenth Amendment was meant neither to incorporate, nor to
be limited to, the specific guarantees of the first eight
Amendments. The overwhelming historical evidence marshalled by
Professor Fairman demonstrates, to me conclusively, that the
Congressmen and state legislators who wrote, debated, and ratified
the Fourteenth Amendment did not think they were "incorporating"
the Bill of Rights [ Footnote 3/9 ]
and Page 391 U. S. 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 391 U. S. 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," [ Footnote 3/10 ] seeking, with due
recognition of constitutional tolerance for state experimentation
and disparity, to ascertain those "immutable principles . . . of
free government which no member of the Union may disregard."
[ Footnote 3/11 ] Due process was
not restricted to rules fixed in the past, for that "would be to
deny every quality Page 391 U. S. 177 of the law but its age, and to render it incapable of progress
or improvement." [ Footnote 3/12 ]
Nor did it impose nationwide uniformity in details, for

															"[t]he Fourteenth Amendment does not profess to secure to all
persons in the United States the benefit of the same laws and the
same remedies. Great diversities in these respects may exist in two
States separated only by an imaginary line. On one side of this
line there may be a right of trial by jury, and on the other side
no such right. Each State prescribes its own modes of judicial
proceeding. [ Footnote 3/13 ]"

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

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

															An example, both of the phenomenon of parallelism and the use of
the first eight Amendments as evidence of a historic commitment, is
found in the partial definition Page 391 U. S. 278 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 268 U. S. 672 .
As another example, Mr. Justice Frankfurter, speaking for the Court
in Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 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 287 U. S. 67 .
(Emphasis added.) Page 391 U. S. 179 Later, the right to counsel was extended to all felony cases.
[ Footnote 3/14 ] The Court has
also ruled, for example, that "due process" means a speedy process,
so that liberty will not be long restricted prior to an
adjudication, and evidence of fact will not become stale; [ Footnote 3/15 ] that, in a system
committed to the resolution of issues of fact by adversary
proceedings the right to confront opposing witnesses must be
guaranteed; [ Footnote 3/16 ] and
that, if issues of fact are tried to a jury, fairness demands a
jury impartially selected. [ Footnote
3/17 ] That these requirements are fundamental to procedural
fairness hardly needs redemonstration

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

															"If the Fourteenth Amendment has absorbed them, the process of
absorption has had its source in the belief that neither liberty
nor justice would exist if they were sacrificed." Id. at 302 U. S. 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 391 U. S. 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 302 U. S. 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 302 U. S. 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 391 U. S. 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." [ Footnote 3/18 ]

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

															Examples abound. I should suppose it obviously fundamental to
fairness that a "jury" means an "impartial Page 391 U. S. 182 jury." [ Footnote 3/19 ] I
should think it equally obvious that the rule, imposed long ago in
the federal courts, that "jury" means "jury of exactly twelve,"
[ Footnote 3/20 ] is not
fundamental to anything: there is no significance except to mystics
in the number 12. Again, trial by jury has been held to require a
unanimous verdict of jurors in the federal courts, [ Footnote 3/21 ] although unanimity has not
been found essential to liberty in Britain, where the requirement
has been abandoned. [ Footnote
3/22 ]

															One further example is directly relevant here. The coexistence
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.
[ Footnote 3/23 ] Individual cases
have been decided without great conviction and without reference to
a guiding principle. The Court today holds, for no discernible
reason, that, if and when the line is drawn its exact location will
be a matter of such fundamental importance that it will be
uniformly imposed on the States. This Court is compelled to decide
such Page 391 U. S. 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 reevaluation in light of later experience, I think it
appropriate to deal on its merits with the question whether
Louisiana denied Page 391 U. S. 184 appellant due process of law when it tried him for simple
assault without a jury.

															The obvious starting place is the fact tat 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: [ Footnote 3/24 ]

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

															" * * * *" ". . . The right to be proceeded against only by indictment, and
the right to a trial by twelve jurors, are of the same nature, and
are subject to the same judgment, and the people in the several
States have the same right to provide by their organic law for the
change of both or either. . . . [T]he State has full control over
the procedure in its courts, both in civil and criminal cases,
subject only to the qualification that such procedure must not work
a denial of fundamental rights or conflict with specific and
applicable provisions of the Federal Constitution. The legislation
in question is not, in our opinion, open to either of these
objections." Id. at 176 U. S.
603 -605. Page 391 U. S. 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 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 wellbeing." Id. at 190 U. S.
217 -218. Numerous other cases in this Court have assumed
that jury trial is not fundamental to ordered liberty. [ Footnote 3/25 ]

															Although it is of course open to this Court to reexamine these
decisions, I can see no reason why they Page 391 U. S. 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, [ Footnote
3/26 ] and are hotly debated today, without significant change
in the lines of argument. [ Footnote
3/27 ]

															The argument that jury trial is not a requisite of due process
is quite simple. The central proposition of Palko, supra, a proposition to which I would adhere, is that "due process of law"
requires only that criminal trials be fundamentally fair. As stated
above, apart from the theory that it was historically intended as a
mere shorthand for the Bill of Rights, I do not see what else "due
process of law" can intelligibly be thought to mean. If due process
of law requires only fundamental Page 391 U. S. 187 fairness, [ Footnote 3/28 ] then
the inquiry in each case must be whether a state trial process was
a fair one. The Court has held, properly I think, that, in an
adversary process, it is a requisite of fairness, for which there
is no adequate substitute, that a criminal defendant be afforded a
right to counsel and to cross-examine opposing witnesses. But it
simply has not been demonstrated, nor, I think, can it be
demonstrated, that trial by jury is the only fair means of
resolving issues of fact.

															The jury is of course not without virtues. It affords ordinary
citizens a valuable opportunity to participate in a process of
government, an experience fostering, one hopes, a respect for law.
[ Footnote 3/29 ] It eases the
burden on judges by enabling them to share a part of their
sometimes awesome responsibility. [ Footnote 3/30 ] A jury may, at times, afford a higher
justice by refusing to enforce harsh laws (although it necessarily
does so haphazardly, raising the questions whether arbitrary
enforcement of harsh laws is better than total enforcement, and
whether the jury system is to be defended on the ground that jurors
sometimes disobey their oaths). [ Footnote 3/31 ] And the jury may, or may Page 391 U. S. 188 not, contribute desirably to the willingness of the general
public to accept criminal judgments as just. [ Footnote 3/32 ]

															It can hardly be gainsaid, however, that the principal original
virtue of the jury trial -- the limitations a jury imposes on a
tyrannous judiciary -- has largely disappeared. We no longer live
in a medieval or colonial society. Judges enforce laws enacted by
democratic decision, not by regal fiat. They are elected by the
people or appointed by the people's elected officials, and are
responsible not to a distant monarch alone, but to reviewing
courts, including this one. [ Footnote
3/33 ]

															The jury system can also be said to have some inherent defects,
which are multiplied by the emergence of the criminal law from the
relative simplicity that existed when the jury system was devised.
[ Footnote 3/34 ] It is a
cumbersome process, not only imposing great cost in time and money
on both the State and the jurors themselves, [ Footnote 3/35 ], but also contributing to delay in
the machinery of justice. [ Footnote
3/36 ] Untrained jurors are presumably less adept at reaching
accurate conclusions of fact than judges, Page 391 U. S. 189 particularly if the issues are many or complex. [ Footnote 3/37 ] And it is argued by some
that trial by jury, far from increasing public respect for law,
impairs it: the average man, it is said, reacts favorably neither
to the notion that matters he knows to be complex are being decided
by other average men, [ Footnote
3/38 ] nor to the way the jury system distorts the process of
adjudication. [ Footnote 3/39 ]

															That trial by jury is not the only fair way of adjudicating
criminal guilt is well attested by the fact that it is not the
prevailing way, either in England or in this country. For England,
one expert makes the following estimates. Parliament generally
provides that new statutory offenses, unless they are of
"considerable gravity," shall be tried to judges; consequently,
summary offenses now outnumber offenses for which jury trial is
afforded by more than six to one. Then, within the latter category,
84% of all cases are, in fact, tried to the court. Over all, "the
ratio of defendants actually tried by jury becomes in some years
little more than 1 percent." [ Footnote 3/40 ] Page 391 U. S. 190 In the United States, where it has not been as generally assumed
that jury waiver is permissible, [ Footnote 3/41 ] the statistics are only slightly less
revealing. Two experts have estimated that, of all prosecutions for
crimes triable to a jury, 75% are settled by guilty plea and 40% of
the remainder are tried to the court. [ Footnote 3/42 ] In one State, Maryland, which has always
provided for waiver, the rate of court trial appears in some years
to have reached 90%. [ Footnote
3/43 ] The Court recognizes the force of these statistics in
stating,

															"We would not assert, however, that every criminal trial -- or
any particular trial -- held before a judge alone is unfair, or
that a defendant may never be as fairly treated by a judge as he
would be by a jury." Ante at 391 U. S. 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 391 U. S. 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. [ Footnote 3/44 ]"

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

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

															"[v]iolations of the laws relating to liquor, trade and
manufacture, labor, smuggling, traffic on the highway, the Sabbath,
'cheats,' gambling, swearing, small thefts, assaults, offenses to property, servants and seamen, vagabondage . . . [and]
at least a hundred more. [ Footnote
3/45 ] . . ."

															45 (Emphasis added.) Penalties for such offenses included heavy
fines (with imprisonment until they were paid), whippings, and
imprisonment at hard labor. [ Footnote
3/46 ]

															Nor had the Colonies a cleaner slate, although practices varied
greatly from place to place with conditions. In Massachusetts,
crimes punishable by whipping (up to 10 strokes), the stocks (up to
three hours), the ducking stool, and fines and imprisonment were
triable to magistrates. [ Footnote
3/47 ] The decision of a magistrate could, in theory, Page 391 U. S. 192 be appealed to a jury, but a stiff recognizance made exercise of
this right quite rare. [ Footnote
3/48 ] New York was somewhat harsher. For example, "anyone
adjudged by two magistrates to be an idle, disorderly or vagrant
person might be transported whence he came, and, on reappearance,
be whipped from constable to constable with thirty-one lashes by
each." [ Footnote 3/49 ] Anyone
committing a criminal offense "under the degree of Grand Larceny"
and unable to furnish bail within 48 hours could be summarily tried
by three justices. [ Footnote
3/50 ] With local variations, examples could be multiplied.

															The point is not that many offenses that English-speaking
communities have, at one time or another, regarded as triable
without a jury are more serious, and carry more serious penalties,
than the one involved here. The point is, rather, that, until
today, few people would have thought the exact location of the line
mattered very much. There is no obvious reason why a jury trial is
a requisite of fundamental fairness when the charge is robbery, and
not a requisite of fairness when the same defendant, for the same
actions, is charged with assault and petty theft. [ Footnote 3/51 ] The reason for the historic
exception for relatively minor crimes is the obvious one: the
burden of jury trial was thought to outweigh its marginal
advantages. Exactly why the States should not be allowed to make
continuing adjustments, based on the state of Page 391 U. S. 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 , 285 U. S. 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.

															[ Footnote 3/1 ] See, e.g., my opinions in Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 672 (dissenting); Ker v. California, 374 U. S.
23 , 374 U. S. 44 (concurring); Malloy v. Hogan, 378 U. S.
1 , 378 U. S. 14 (dissenting); Pointer v. Texas, 380 U.
S. 400 , 380 U. S. 408 (concurring); Griffin v. California, 380 U.
S. 609 , 380 U. S. 615 (concurring); Klopfer v. North Carolina, 386 U.
S. 213 , 386 U. S. 226 (concurring).

															[ Footnote 3/2 ] Barron v.
Baltimore , 7 Pet. 243 (1833), held that the first
eight Amendments restricted only federal action.

															[ Footnote 3/3 ]

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

															[ Footnote 3/4 ]

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

															[ Footnote 3/5 ]

															In Barron v. Baltimore, supra, at 32 U. S. 250 ,
Chief Justice Marshall said,

															"These amendments demanded security against the apprehended
encroachments of the general government -- not against those of the
local governments."

															[ Footnote 3/6 ]

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

															[ Footnote 3/7 ] See Adamson v. California, 332 U. S.
46 , 332 U. S. 71 (dissenting opinion of BLACK, J.); O'Neil v. Vermont, 144 U. S. 323 , 144 U. S. 366 ,
370 (dissenting opinion of Harlan, J.) (1892); H. Black, "Due
Process of Law," in A Constitutional Faith 23 (1968).

															[ Footnote 3/8 ]

															In addition to the opinions cited in 391
U.S. 145 fn3/1|>n. 1, supra, see, e.g., in opinions
in Poe v. Ullman, 367 U. S. 497 , 367 U. S. 522 ,
at 367 U. S.
539 -545 (dissenting), and Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 499 (concurring).

															[ Footnote 3/9 ]

															Fairman, Does the Fourteenth Amendment Incorporate the Bill of
Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949).
Professor Fairman was not content to rest upon the overwhelming
fact that the great words of the four clauses of the first section
of the Fourteenth Amendment would have been an exceedingly peculiar
way to say that

															"The rights heretofore guaranteed against federal intrusion by
the first eight Amendments are henceforth guaranteed against state
intrusion as well."

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

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

															[ Footnote 3/10 ] Davidson v. New Orleans, 96 U. S.
97 , 96 U. S.
104 .

															[ Footnote 3/11 ] Holden v. Hardy, 169 U. S. 366 , 169 U. S.
389 .

															[ Footnote 3/12 ] Hurtado v. California, 110 U.
S. 516 , 110 U. S.
529 .

															[ Footnote 3/13 ] Missouri v. Lewis, 101 U. S. 22 , 101 U. S.
31 .

															[ Footnote 3/14 ] Gideon v. Wainwright, 372 U. S. 335 . The
right to counsel was found in the Fourteenth Amendment because, the
Court held, it was essential to a fair trial. See 372 U.S.
at 372 U. S.
342 -345.

															[ Footnote 3/15 ] Klopfer v. North Carolina, 386 U.
S. 213 .

															[ Footnote 3/16 ] Pointer v. Texas, 380 U. S. 400 .

															[ Footnote 3/17 ] Irvin v. Dowd, 366 U. S. 717 .

															[ Footnote 3/18 ]

															The same illogical way of dealing with a Fourteenth Amendment
problem was employed in Malloy v. Hogan, 378 U. S.
1 , which held that the Due Process Clause guaranteed the
protection of the Self-Incrimination Clause of the Fifth Amendment
against state action. I disagreed at that time both with the way
the question was framed and with the result the Court reached. See my dissenting opinion, id. at 378 U. S. 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 , 380 U. S. 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."

															[ Footnote 3/19 ]

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

															[ Footnote 3/20 ] E.g., Rassmussen v. United States, 197 U.
S. 516 .

															[ Footnote 3/21 ] E.g., Andres v. United States, 333 U.
S. 740 . With respect to the common law number and
unanimity requirements, the Court suggests that these present no
problem because "our decisions interpreting the Sixth Amendment are
always subject to reconsideration. . . ." Ante at 391 U. S. 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 , 374 U. S. 44 .
MR. JUSTICE WHITE alluded to this problem in his dissenting opinion
in Malloy v. Hogan, supra, at 378 U. S. 38 .

															[ Footnote 3/22 ]

															Criminal Justice Act of 1967, § 13.

															[ Footnote 3/23 ] E.g., Callan v. Wilson, 127 U.
S. 540 ; District of Columbia v. Clawans, 300 U. S. 617 ; District of Columbia v. Colts, 282 U. S.
63 .

															[ Footnote 3/24 ]

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

															[ Footnote 3/25 ] E.g., Irvin v. Dowd, supra, at 366 U. S. 721 ; Fay v. New York, 332 U. S. 261 , 332 U. S. 288 ; Palko v. Connecticut, supra, at 302 U. S. 325 ; Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 105 ; Brown v. New Jersey , 175 U. S. 172 , 175 U. S. 175 ; Missouri v. Lewis, supra, at 101 U. S.
31 .

															[ Footnote 3/26 ] E.g., Deady, Trial by Jury, 17 Am.L.Rev. 398, 399-400
(1883):

															"Still in these days of progress and experiment, when everything
is on trial at the bar of human reason or conceit, it is quite the
fashion to speak of jury trial as something that has outlived its
usefulness. Intelligent and well meaning people often sneer at it
as an awkward and useless impediment to the speedy and correct
administration of justice, and a convenient loophole 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."

															[ Footnote 3/27 ] See generally Kalven, Memorandum Regarding Jury System,
printed in Hearings on Recording of Jury Deliberations before the
Subcommittee to Investigate the Administration of the Internal
Security Act of the Senate Committee on the Judiciary, 84th Cong.,
1st Sess., 63-81. In particular,

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

															[ Footnote 3/28 ] See, e.g., Snyder v. Massachusetts, supra, at 291 U. S.
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."

															[ Footnote 3/29 ]

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

															[ Footnote 3/30 ]

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

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

															[ Footnote 3/31 ] See generally G. Williams, The Proof of Guilt 257-263;
W. Forsyth, History of Trial by Jury 261.

															[ Footnote 3/32 ] See J. Stephen, A General View of the Criminal Law of
England 208-209.

															[ Footnote 3/33 ] See, e.g., Sunderland, The Inefficiency of the American
Jury, 13 Mich.L.Rev. 302, 305:

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

															[ Footnote 3/34 ] See, e.g., Sunderland, supra, at 303:

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

															[ Footnote 3/35 ] Compare Green, Jury Injustice, 20 Jurid.Rev. 132,
133.

															[ Footnote 3/36 ] Cf. Lummus, Civil Juries and the Law's Delay, 12
B.U.L.Rev. 487.

															[ Footnote 3/37 ] See, e.g., McWhorter, Abolish the Jury, 57 Am.L.Rev.
42. Statistics on this point are difficult to accumulate for the
reason that the only way to measure jury performance is to compare
the result reached by a jury with the result the judge would have
reached in the same case. While judge-jury comparisons have many
values, it is impossible to obtain a statistical comparison of
accuracy in this manner. See generally H. Kalven & H.
Zeisel, The American Jury, passim. [ Footnote 3/38 ] E.g., Boston, Some Practical Remedies for Existing
Defects in the Administration of Justice, 61 U.Pa.L.Rev. 1, 16:

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

															[ Footnote 3/39 ] E.g., McWhorter, supra, at 46:

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

															[ Footnote 3/40 ]

															Williams, supra, at 302.

															[ Footnote 3/41 ]

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

															[ Footnote 3/42 ]

															Kalven & Zeisel, supra, at 12-32.

															[ Footnote 3/43 ] See Oppenheim, Waiver of Trial by Jury in Criminal
Cases, 25 Mich.L.Rev. 695, 728.

															[ Footnote 3/44 ]

															37 Hen. 8, c. 7

															[ Footnote 3/45 ]

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

															[ Footnote 3/46 ]

															Frankfurter & Corcoran, supra, at 93934.

															[ Footnote 3/47 ] See id. at 938-942.

															[ Footnote 3/48 ] Ibid. [ Footnote 3/49 ]

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

															[ Footnote 3/50 ]

															Frankfurter & Corcoran, supra, at 945.

															[ Footnote 3/51 ]

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

Summary:
Here is a summary of the case:

In *Duncan v. Louisiana*, the United States Supreme Court held that the Fourteenth Amendment guarantees a right to a jury trial in state criminal cases where the potential sentence is greater than six months' imprisonment. The Court found that trial by jury in criminal cases is fundamental to the American scheme of justice and that the penalty authorized for a crime is a significant factor in determining its seriousness. In this case, the appellant, Gary Duncan, was convicted of simple battery under Louisiana law and sentenced to 60 days in prison and a fine. The Court held that a crime punishable by two years in prison is a serious crime, and Duncan was entitled to a jury trial. The Court reversed the conviction and remanded the case.