Baldwin v. New Yor Williams/Dissent Stewart

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

I substantially agree with the separate opinion Mr. Justice HARLAN has filed in these cases-an opinion that fully demonstrates some of the basic errors in a mechanistic 'incorporation' approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety, however, if only for the reason that it relies in part upon certain dissenting and concurring opinions in previous cases in which I did not join.

The 'incorporation' theory postulates the Bill of Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as a matter of constitutional history, and that as a matter of constitutional law it is both stultifying and unsound. It is, at best, a theory that can lead the Court only to a Fourteenth Amendment dead end. And, at worst, the spell of the theory's logic compels the Court either to impose intolerable restrictions upon the constitutional sovereignty of the individual States in the administration of their own criminal law, or else intolerably to relax the explicit restrictions that the Framers actually did put upon the Federal Government in the administration of criminal justice. All this, and much more, is elaborated in Mr. Justice HARLAN'S separate opinion, and I would affirm the judgments in both No. 188 and No. 927 for substantially the reasons he states.

The architect of the contemporary 'incorporation' approach to the Fourteenth Amendment is, of course, Mr. Justice BLACK. See Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion). And the separate opinion my Brother BLACK has filed today in No. 927 could serve as Exhibit A to illustrate the extraordinary habits of thought into which some of us have fallen in conditioned reflex to that erroneous constitutional doctrine. 'Incorporation' has become so Pavlovian that my Brother BLACK barely mentions the Fourteenth Amendment in the course of an 11-page opinion dealing with the procedural rule the State of Florida has adopted for cases tried in Florida courts under Florida's criminal laws. His opinion relies instead upon the 'plan and obvious meaning' of the 'specific words' of the Fifth Amendment and other 'provisions of the Bill of Rights' which, together with 'the history surrounding the adoption of those provisions,' make clear that '(t)he Framers * *  * designed' those rights 'to shield the defendant against state power.'

Though I admire the rhetoric, I submit with all deference that those statements are, to quote their author, 'plainly and simply wrong as a matter of fact and law. * *  * ' If the Constitution forbids the Florida alibi-defense procedure, it is because of the Fourteenth Amendment, and not because of either the 'specific words' of the Bill of Rights or 'the history surrounding' their adoption. For as every schoolboy knows, the Framers 'designed' the Bill of Rights not against 'state power,' but against the power of the Federal Government.

Surely Mr. Justice HARLAN is right when he says it is time for the Court to face up to reality.