Klopfer v. North Carolina/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

While I entirely agree with the result reached by the Court, I am unable to subscribe to the constitutional premises upon which that result is based-quite evidently the viewpoint that the Fourteenth Amendment 'incorporates' or 'absorbs' as such all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constitutional doctrine. See my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923.

I would rest decision of this case not on the 'speedy trial' provision of the Sixth Amendment, but on the ground that this unusual North Carolina procedure, which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of THE CHIEF JUSTICE.