United States Supreme Court Cases & Opinions

U.S. Supreme Court

BALDWIN v. NEW YORK , 399 U.S. 117 (1970)

June 22, 1970

Mr. Justice HARLAN, dissenting in No. 188, and concurring in the result in No. 927.

In Duncan v. Louisiana, 391 U.S. 145 ( 1968), the Court held, over my dissent, joined by Mr. Justice Stewart, that a state criminal defendant is entitled to a jury trial in any case which, if brought in a federal court, would require a jury under the Sixth Amendment. Today the Court concludes, in No. 188, Baldwin v. New York, 399 U.S. 66, that New York cannot constitutionally provide that misdemeanors carrying sentences up to one year shall be tried in New York City without a jury. [Footnote 1] At

Page 399 U.S. 117 , 118

the same time the Court holds in No. 927, Williams v. Florida, 399 U.S. 78, that Florida's six-member-jury statute satisfies the Sixth Amendment as carried to the States by the Duncan holding. [Footnote 2] The necessary consequence of this decision is that 12-member juries are not constitutionally required in federal criminal trials either.

The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does not require 12-member juries is, in my opinion, much too thin to mask the true thrust of this decision. The decision evinces, I think, a recognition that the 'incorporationist' view of the Due Process Clause of the Fourteenth Amendment, which underlay Duncan and is now carried forward into Baldwin, must be tempered to allow the States more elbow room in ordering their own criminal systems. With that much I agree. But to accomplish this by diluting constitutional protections within the federal system itself is something to which I cannot possibly subscribe. Tempering the rigor of Duncan should be done forthrightly, by facing up to the fact that at least in this area the 'incorporation' doctrine does not fit well with our federal structure, and by the same token that Duncan was wrongly decided.

I would sustain both the Florida and New York statutes on the constitutional premises discussed in my dissenting opinion in Duncan, 391 U.S., at 161, 88 S.Ct. at 1453-1454 et seq. In taking that course in Baldwin, I cannot, in a matter that goes to the very pulse of sound constitutional adjudication, consider myself constricted by stare decisis. 3 [399 U.S. 117 , 119]

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