Schwartz v. Texas/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring in the result.

If the only question involved in this case were the applicability to prosecutions in State courts, in situations like the present, of § 605 of the Federal Communications Act, 47 U.S.C. § 605, 47 U.S.C.A. § 605, as construed in the two Nardone cases, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, I would join in the opinion of the Court. I agree with the views on this subject expressed by Mr. Justice Minton.

The matter is complicated, however, by a Texas statute, Art. 727a, Vernon's Code of Criminal Procedure (1948), which renders inadmissible in criminal trials evidence obtained in violation of any provision 'of the Constitution of the United States'. If this limitation means, according to Texas law, that the State court is to construe what is or is not a violation under the United States Constitution, it does not raise a federal question. But if the Texas legislation means that the Texas courts are bound by what this Court deems a violation of the United States Constitution, the problem is, or might be, different. See State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950. While, on the latter assumption, the circumstances attending the evidence that was admitted here would, in my view, render it inadmissible in a federal prosecution, see my sissent in On Lee v. United States, 343 U.S. 747, 758, 72 S.Ct. 967, 974, the decision of this Court was to the contrary. Therefore the Texas court was in duty bound to follow that decision and to reach the result it reached even if it felt constrained, as apparently it did, to be governed by the views of this Court as to what constitutes a violation of the United States Constitution. I cannot say that the Texas court should have followed my minority views, to which I adhere, on this constitutional question, and disregarded the Court's authority.

Mr. Justice DOUGLAS, dissenting.