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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

D, Duncan v. Louisiana,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Duncan v. Louisiana,

391 U.S. 145 (1968), argued 17 Jan. 1968, decided 20 May 1968 by vote of 7 to 2; White for the Court, Black, Douglas, and Fortas concurring, Harlan, joined by Stewart, in dissent. Duncan was convicted of misdemeanor battery without benefit of a jury and sentenced to sixty days in jail and a fine of $150. The crime was punishable by a maximum of two years in prison and a $300 fine. Duncan was denied a jury trial because the Louisiana Constitution required juries only in capital cases or where imprisonment at hard labor could be imposed. His appeal to the United States Supreme Court claimed a *Sixth Amendment right to a jury trial, although the Court had not yet incorporated that portion of the *Bill of Rights into the *Fourteenth Amendment.

According to the majority, the test for selective incorporation was whether the right under consideration was “fundamental.” In earlier cases a right qualified as fundamental only if a civilized system could not be imagined without it. However, under the new and prevailing test, if history indicated that a procedural right found in the Bill of Rights was an integral part of the “Anglo-American regime of ordered liberty,” if was deemed fundamental (see fundamental rights).

Justice Byron *White’s opinion argued that the right to trial by jury had enjoyed such an uninterrupted history and, consequently, was to be incorporated “bag and baggage” into the due process clause of the Fourteenth Amendment and thus applied to the states. Duncan’s conviction was reversed. The Court also denied Louisiana’s claim that this was a petty offense that did not require a jury trial. The majority admitted that some minor offenses may not require a jury trial but left these petty offenses undefined. Justice Hugo *Black, joined by William *Douglas, concurred, arguing again the correctness of his total incorporation *dissent in *Adamson v. California (1947). Justice Abe *Fortas concurred but expressed grave doubts about imposing the federal model onto the states. Justice John *Harlan, joined by Potter *Stewart, dissented because he feared a further loss of state prerogatives.

See also due process, procedural; incorporation doctrine; trial by jury.

Charles H. Sheldon