5 The Scope and Incorporation of the Bill of Rights during and after the 1960s

As support for civil rights began to build in the 1940s and 1950s, the weak consensus over incorporation doctrine splintered. Some legal liberals—such as Justice Black—argued for total incorporation of the Bill of Rights. Other jurists, though still tied to the selective incorporation approach, developed a broader view of which rights were fundamental than did Justice Cardozo in Palko. In particular, their broader approach focused less on whether the right would be fundamental in every or all democratic governments, and more on whether the right was central within the specific political and legal traditions and history of the United States. Together, these two groups would form a consistent majority in favor of incorporating rights against the states as such cases came before them.

These developments were also strongly affected by the Warren Court’s increasing commitment to civil rights and racial equality. Deference to federalism in criminal procedure weakened as the Court addressed severe injustices in southern states, whose legal systems were devoted to maintaining white supremacy and Jim Crow. In other words, the dramatic increase of incorporation in the 1960s can be seen as part of the Warren Court’s larger goal of dismantling segregation and creating meaningful civil rights for racial minorities.

Duncan v. Louisiana (1968), a case in which the Court incorporated the Sixth Amendment’s right to a jury trial for felony charges, provides a good example of both dynamics. After an altercation where Duncan had intervened to protect his two younger cousins from four white youths, Duncan was charged with battery, which in Louisiana had a maximum penalty of two years in prison. Louisiana only required jury trials in cases where the death penalty or hard labor was a possible outcome, and thus Duncan received a bench trial. The judge uncritically accepted the testimony of the white youths, leading to a jail sentence of 60 days and a $150 fine.

Note the three different approaches taken in this case: Justice White’s majority opinion applies a relaxed version of selective incorporation; Justice Black’s concurring opinion argues for total incorporation, although he’s fine with the outcome of the case; Justice Harlan adopts Cardozo’s view of fundamental rights from Palko, arguing that Louisiana’s rule does not violate fundamental fairness. Footnote 14 in White’s opinion (included) helpfully describes the difference between his approach and the older Cardozo view.

Duncan v. Louisiana

391 U.S. 145 (1968)

Facts: Driving down a highway, Duncan spotted two of his younger cousins on the side of the road with four white youths. Concerned for their safety, Duncan pulled over and told them to get in. At this point, Duncan either “slapped” a white youth (their account) or “touched” him (Duncan and his cousins’ account).

The encounter was observed by the principal of a whites-only private school, who called the police. After a charge of “cruelty to juveniles” was dropped because the law did not fit the facts, Duncan was charged with battery. In Louisiana, jury trials were limited to punishments involving hard labor or death, so Duncan was tried by a local judge and found guilty. He was sentenced to 60 days in jail and a $150 fine.

After exhausting his state appeals, Duncan appealed to the Supreme Court.

Question: Does the Sixth Amendment’s right to trial by jury apply against the states under the Due Process Clause of the Fourteenth Amendment?

Vote: Yes, 7-2

For the Court: Justice White

Concurring opinion: Justice Black

Dissenting opinion: Justice Harlan

JUSTICE WHITE delivered the opinion of the Court.

… 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 (1932).

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 is placed here] Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused.

The history of trial by jury in criminal cases has been frequently told. 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 the Magna Carta…

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” — was the declaration:

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

… 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.” …

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.”

… 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 …

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…

We are aware of prior cases in this Court in which the prevailing opinion contains statements contrary to our holding today … None of these cases, however, dealt with a State which had purported to dispense entirely with a jury trial in serious criminal cases…

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… 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.

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 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 and prosecuting petty crimes without extending a right to jury trial…

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 States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses. 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.

… 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…

… 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 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. 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.

[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 …

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…

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. 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…

JUSTICE BLACK, with whom JUSTICE DOUGLAS joins, concurring.

With this holding I agree for reasons given by the Court. I also agree because of reasons given in my dissent in Adamson v. California (1947). In that dissent … I took the position … that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States…

… 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…

… 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.

… 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… What more precious “privilege” of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? …

While I do not wish at this time to discuss at length my disagreement with Brother HARLAN’s [dissent] … I do want to point out what appears to me to be the basic difference between us. His view … 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…

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…

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,” 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…

JUSTICE HARLAN, whom 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 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…

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….

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 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.” …

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…

… The argument that jury trial is not a requisite of due process is quite simple. The central proposition of Palko, a proposition to which I would adhere, is that “due process of law” requires only that criminal trials be fundamentally fair… If due process of law requires only fundamental fairness, then the inquiry in each case must be whether a state trial process was a fair one. The Court 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…

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 … in this country. 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 …

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…”

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…