dissenting.
In United States v. Wade, ante, p. 218, and Gilbert v. California, ante, p. 263, the Court holds that lineup identification testimony should be excluded if it was obtained by exhibiting an accused to identifying witnesses before trial in the absence of his counsel. I concurred in part in those holdings as to out-of-court lineup identification on the ground that the right to counsel is guaranteed in federal courts by the Sixth Amendment and in state courts by the Sixth and Fourteenth Amendments. The first question in this case is whether other defendants, already in prison on *304such unconstitutional evidence, shall be accorded the benefit of the rule. In this case the Court holds that the petitioner here, convicted on such unconstitutional evidence, must remain in prison, and that besides Wade and Gilbert, who are “chance beneficiaries,” no one can invoke the rule except defendants exhibited in lineups in the future. I dissent from that holding. It keeps people serving sentences who were convicted through the use of unconstitutional evidence. This is sought to be justified on the ground that retroactive application of the holding in Gilbert and Wade would somehow work a “burden on the administration of justice” and would not serve the Court’s purpose “to deter law enforcement authorities.” It seems to me that to deny this petitioner and others like him the benefit of the new rule deprives them of a constitutional trial and perpetrates a rank discrimination against them. Once the Court determines what the Constitution says, I do not believe it has the power, by weighing “countervailing interests,” to legislate a timetable by which the Constitution’s provisions shall become effective. For reasons stated in my dissent in Linkletter v. Walker, 381 U. S. 618, 640, I would hold that the petitioner here and every other person in jail under convictions based on unconstitutional evidence should be given the advantage of today’s newly announced constitutional rules.
The Court goes on, however, to hold that even though its new constitutional rule about the Sixth Amendment’s right to counsel cannot help this petitioner, he is nevertheless entitled to a consideration of his claim, “independent of any right to counsel claim,” that his identification by one of the victims of the robbery was made under circumstances so “unfair” that he was denied “due process of law” guaranteed by the Fourteenth Amendment. Although the Court finds petitioner’s claim without merit, I dissent from its holding that a general *305claim of “unfairness” at the lineup is “open to all persons to allege and prove.” The term “due process of law” is a direct descendant of Magna Charta’s promise of a trial according to the “law of the land” as it has been established by the lawmaking agency, constitutional or legislative. No one has ever been able to point to a word in our constitutional history that shows the Framers ever intended that the Due Process Clause of the Fifth or Fourteenth Amendment was designed to mean any more than that defendants charged with crimes should be entitled to a, trial governed by the laws, constitutional and statutory, that are in existence at the time of the commission of the crime and the time of the trial. The concept of due process under which the Court purports to decide this question, however, is that this Court looks at “the totality of the circumstances” of a particular case to determine in its own judgment whether they comport with the Court’s notions of decency, fairness, and fundamental justice, and, if so, declares they comport with the Constitution, and, if not, declares they are forbidden by the Constitution. See, e. g., Rochin v. California, 342 U. S. 165. Such a constitutional formula substitutes this Court’s judgment of what is right for what the Constitution declares shall be the supreme law of the land. This due process notion proceeds as though our written Constitution, designed to grant limited powers to government, had neutralized its limitations by using the Due Process Clause to authorize this Court to override its written limiting language by substituting the Court’s view of what powers the Framers should have granted government. Once again I dissent from any such view of the Constitution. Where accepted, its result is to make this Court not a Constitution-interpreter, but a day-to-day Constitution-maker.
But even if the Due Process Clause could possibly be construed as giving such latitudinarian powers to the *306Court, I would still think the Court goes too far in holding that the courts can look at the particular circumstances of each identification lineup to determine at large whether they are too “suggestive and conducive to irreparable mistaken identification” to be constitutional. That result is to freeze as constitutional or as unconstitutional the circumstances of each case, giving the States and the Federal Government no permanent constitutional standards. It also transfers to this Court power to determine what the Constitution should say, instead of performance of its undoubted constitutional power to determine what the Constitution does say. And the result in this particular case is to put into a constitutional mould a rule of evidence which I think is plainly within the constitutional powers of the States in creating and enforcing their own criminal laws. I must say with all deference that for this Court to hold that the Due Process Clause gives it power to bar state introduction of lineup testimony on its notion of fairness, not because it violates some specific constitutional prohibition, is an arbitrary, wholly capricious action.
I would not affirm this case but would reverse and remand for consideration of whether the out-of-court lineup identification of petitioner was, under Chapman v. California, 386 U. S. 18, harmless error. If it was not, petitioner is entitled to a new trial because of a denial of the right to counsel guaranteed by the Sixth Amendment which the Fourteenth Amendment makes obligatory on the States.