Baldwin v. New York/Dissent Burger

by Warren E. Burger

United States Supreme Court

399 U.S. 66

Baldwin  v.  New York

 Argued: Dec. 9, 1969. --- Decided: June 22, 1970

Mr. Chief Justice BURGER, dissenting.

I dissent from today's holding that something in the Sixth and Fourteenth Amendments commands New York City to provide trial by jury for an offense punishable by a confinement of more than six months but less than one year. Mr. Justice BLACK has noted correctly that the Constitution guarantees a jury trial '(i)n all criminal prosecutions' (Amendment VI) and for 'all Crimes' (Art. III, § 2, cl. 3), but these provisions were not written as a command to the States; they were written at a time when the Federal Government exercised only a limited authority to provide for federal offenses 'very grave and few in number.' ^[1] The limited number of serious acts that were made criminal offenses were against federal authority, and were proscribed in a period when administration of the criminal law was regarded as largely the province of the States. The Founding Fathers therefore cast the constitutional provisions we deal with here as limitations on federal power, not the power of States. State administration of criminal justice included a wide range of petty offenses, and as to many of the minor cases, the States often did not require trial by jury. ^[2] This state of affairs had not changed appreciably when the Fourteenth Amendment was approved by Congress in 1866 and was ratified by the States in 1868. In these circumstances, the jury trial guarantees of the Constitution properly have been read as extending only to 'serious' crimes. I find, however, nothing in the 'serious' crime coverage of the Sixth or Fourteenth Amendment that would require this Court to invalidate the particular New York City trial scheme at issue here.

I find it somewhat disconcerting that with the constant urging to adjust ourselves to being a 'pluralistic society'-and I accept this in its broad sense-we constant pressure to conform to some uniform pattern on the theory that the Constitution commands it. I see no reason why an infinitely complex entity such as New York City should be barred from deciding that misdemeanants can be punished with up to 365 days' confinement without a jury trial while in less urban areas another body politic would fix a six-month maximum for offenses tried without a jury. That the 'near-uniform judgment of the Nation' is otherwise than the judgment in some of its parts affords no basis for me to read into the Constitution something not found there. What may be a serious offense in one setting-e.g., stealing a horse in Cody, Wyoming, where a horse may be an indispensable part of living-may be considered less serious in another area, and the procedures for finding guilt and fixing punishment in the two locales may rationally differ from each other.

Notes

1. See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 975 976 (1926), where the authors observe: 'Until very recently the occasion for considering the dispensability of trial by jury in the enforcement of the criminal law has hardly presented itself to Congress, except as to the Territories and the District of Columbia, because, on the whole, federal offenses were at once very grave and few in number.' (Footnote omitted.)
2. See id., at 934-965; District of Columbia v. Clawans, 300 U.S. 617, 626, 57 S.Ct. 660, 662, 81 L.Ed. 843 (1937).