Pointer v. Texas/Concurrence Goldberg
Mr. Justice GOLDBERG, concurring.
I agree with the holding of the Court that 'the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' Ante, at 403. I therefore join in the opinion and judgment of the Court. My Brother HARLAN, while agreeing with the result reached by the Court, deplores the Court's reasoning as 'another step in the onward march of the long-since discredited 'incorporation' doctrine,' ante, at 408. Since I was not on the Court when the incorporation issue was joined, see Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, I deem it appropriate to set forth briefly my view on this subject.
I need not recapitulate the arguments for or against incorporation whether 'total' or 'selective.' They have been set forth adequately elsewhere.  My Brother BLACK's view of incorporation has never commanded a majority of the Court, though in Adamson it was assented to by four Justices. The Court in its decisions has followed a course whereby certain guarantees 'have been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment,' Palko v. State of Connecticut, 302 U.S. 319, 326, 58 S.Ct. 149, 152, 82 L.Ed. 288, by a process which might aptly be described as 'a process of absorption.' Ibid. See Cohen v. Hurley, 366 U.S. 117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156 (dissenting opinion of Mr. Justice Brennan); Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961). Thus the Court has held that the Fourteenth Amendment guarantees against infringement by the States the liberties of the First Amendment,  the Fourth Amendment,  the Just Compensation Clause of the Fifth Amendment,  the Fifth Amendment's privilege against self-incrimination,  the Eighth Amendment's prohibition of cruel and unusual punishments,  and the Sixth Amendment's guarantee of the assistance of counsel for an accused in a criminal prosecution. 
With all deference to my Brother HARLAN, I cannot agree that this process has 'come into the sunlight in recent years.' Ante, at 408. Rather, I believe that it has its origins at least as far back as Twining v. State of New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 19, 53 L.Ed. 97, where the Court stated that 'it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. Chicago, Burlington & Quincy Railroad v. (City of) Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979.' This passage and the authority cited make clear that what is protected by the Fourteenth Amendment are 'rights,' which apply in every case, not solely in those cases where it seems 'fair' to a majority of the Court to afford the protection. Later cases reaffirm that the process of 'absorption' is one of extending 'rights.' See Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, and cases cited by Mr. Justice Brennan in his dissenting opinion in Cohen v. Hurley, supra, 366 U.S. at 156, 81 S.Ct., at 975. I agree with these decisions, as is apparent from my votes in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Malloy v. Hogan, supra, and Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, and my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 297, 84 S.Ct. 710, 735, 11 L.Ed.2d 686, and I subscribe to the process by which fundamental guarantees of the Bill of Rights are absorbed by the Fourteenth Amendment and thereby applied to the States.
Furthermore, I do not agree with my Brother HARLAN that once a provision of the Bill of Rights has been held applicable to the States by the Fourteenth Amendment, it does not apply to the States in full strength. Such a view would have the Fourteenth Amendment apply to the States 'only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights." Malloy v. Hogan, supra, 378 U.S., at 10-11, 84 S.Ct., at 1495. It would allow the States greater latitude than the Federal Government to abridge concededly fundamental liberties protected by the Constitution. While I quite agree with Mr. Justice Brandeis that '(i)t is one of the happy incidents of the federal system that a * * * State may * * * serve as a laboratory; and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights. My Brother HARLAN's view would also require this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States.
Finally, I do not see that my Brother HARLAN's view would further any legitimate interests of federalism. It would require this Court to intervene in the state judicial process with considerable lack of predictability and with a consequent likelihood of considerable friction. This is well illustrated by the difficulties which were faced and were articulated by the state courts attempting to apply this Court's now discarded rule of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. See Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 897-898. These difficulties led the Attorneys General of 22 States to urge that this Court overrule Betts v. Brady and apply fully the Sixth Amendment's guarantee of right to counsel to the States through the Fourteenth Amendment. See Gideon v. Wainwright, supra, 372 U.S., at 336, 83 S.Ct., at 792. And to deny to the States the power to impair a fundamental constitutional right is not to increase federal power, but, rather, to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual. In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government, federal or state, which underlies our concepts of federalism.
I adhere to and support the process of absorption by means of which the Court holds that certain fundamental guarantees of the Bill of Rights are made obligatory on the States through the Fourteenth Amendment. Although, as this case illustrates, there are differences among members of the Court as to the theory by which the Fourteenth Amendment protects the fundamental liberties of individual citizens, it is noteworthy that there is a large area of agreement, both here and in other cases, that certain basic rights are fundamental-not to be denied the individual by either the state or federal governments under the Constitution. See, e.g., Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Gideon v. Wainwright, supra; New York Times Co. v. Sullivan, supra; Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.
^1 See Adamson v. People of State of California, supra, at 59, 67 S.Ct., at 1679 (concurring opinion of Mr. Justice Frankfurter); id., at 68, 67 S.Ct., at 1684 (dissenting opinion of Mr. Justice Black); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, id., at 14, 84 S.Ct., at 1497 (dissenting opinion of Mr. Justice Harlan); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (concurring opinion of Mr. Justice Douglas); id., at 349, 83 S.Ct., at 799 (concurring opinion of Mr. Justice Harlan); Poe v. Ullman, 367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (dissenting opinion of Mr. Justice Douglas); Frankfurter, Memorandum on 'Incorporation' of the Bill of Rights Into the Due Process Cause of the Fourteenth Amendment, 78 Harv.L.Rev. 746; Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960); Brennan, The Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961); Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949); Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869 (1948); Henkin, 'Selective Incorporation' in the Fourteenth Amendment, 73 Yale L.J. 74 (1963).
^2 See, e.g., Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.