dissenting.
I dissent for the reasons expressed in my dissenting opinion in Duncan v. Louisiana, ante, p. 171, and in my separate opinion in Cheff v. Schnackenberg, 384 U. S. 373, 380. See also United States v. Barnett, 376 U. S. 681; Green v. United States, 356 U. S. 165.
This case completes a remarkable circle. In Duncan, supra, the Court imposed on the States a rule of procedure that was neither shown to be fundamental to procedural fairness nor held to be part of the originally understood content of the Fourteenth Amendment. The sole justification was that the rule was found in the Bill of Rights. The Court now, without stating any additional reasons, imposes on the States a related rule that, as recently as Cheff v. Schnackenberg, supra, the Court declined to find in the Bill of Rights. That the words of Mr. Justice Holmes,* inveighing against a century of “unconstitutional assumption of [state] powers by the Courts of the United States” in derogation of the central premise of our Constitution, should be invoked to support. the Court's action here can only be put down to the vagaries of the times.
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 532, at 533 (dissenting opinion, quoted ante, at 198).