Now Comes the Sixth Amendment

In case after case, the Supreme Court is putting new muscle into the 174-year-old Bill of Rights, the first ten amendments of the U.S. Constitution. Amendments 1 through 8 were long held to protect individuals only against the powers of the Federal Government, but now they are becoming a shield against the states as well. Last week the court raised that shield once more by applying to all state criminal courts the Sixth Amendment guarantee that anyone accused of crime shall "be confronted with the witnesses against him."

The "confrontation clause" is basic to the U.S. idea of fact-finding trials; it rejects secret charges that cannot be tested in open court. With a few exceptions, such as previous testimony by deceased persons, it means that witnesses may be cross-examined face to face so that juries can determine the truth not only by what is said but also by how it is said.

Absorbed Rights. In the case that produced last week's landmark decision, Texas had refused to uphold that right. Accused of a $375 holdup, Bob Granville Pointer was haled before a preliminary hearing in Houston. He had no lawyer and did not cross-examine his alleged victim, who then moved to California and did not appear at Pointer's trial. Vainly invoking the confrontation clause, Pointer was convicted on the transcript of the absent victim's untested testimony. Because he could have cross-examined at the preliminary hearing, the state's highest court upheld his conviction.

The Supreme Court might well have reversed Pointer's conviction almost routinely; as far back as 1899, the court held that confrontation is fundamental to fair trial, a concept embodied in the "due process" guarantee that the 14th Amendment now imposes on the states. But Pointer's appeal revived a question that has long roiled the court: Does the 14th Amendment "incorporate" the specifics of the Bill of Rights and impose them on the states? If so, states must obey the full letter of the Sixth Amendment's confrontation clause.

Hotly opposed to incorporation, the late Justice Felix Frankfurter argued that states should be free to experiment with due-process limits that were to be largely defined by the Supreme Court's conscience. Just as hotly, Justice Hugo Black argued that Bill of Rights specifics were more dependable than nine shifting consciences. The court itself has taken a middle course called "absorption." Bit by bit, it has redefined 14th Amendment due process to include more and more of the Bill of Rights.

Basic Agreement. Speaking for the court, Justice Black thus cited recent decisions that oblige states to observe the

Fifth Amendment's privilege against self-incrimination (Malloy v. Hogan in 1964) and the Sixth Amendment's right to counsel (Gideon v. Wainwright in 1963). To be sure, the court said flatly in 1904: "The Sixth Amendment does not apply to proceedings in state criminal courts." But in the light of Gideon, Malloy and other "absorption" cases, ruled Black, statements "generally declaring that the Sixth Amendment does not apply to states can no longer be regarded as law." After reversing Pointer's conviction on these grounds, the court emphasized its new doctrine by doing exactly the same in another confrontation case in Alabama.

While concurring in the result, Justice John M. Harlan sharply rapped the court's reasoning as "another step in the onward march of the long-since discredited 'incorporation' doctrine." Harlan strongly favors Frankfurter's idea of flexible due process. Unhappy even with absorption, Harlan feels that the court's present course "increasingly subjects state legal processes to enveloping federal judicial authority."

But in another concurring opinion, Justice Arthur Goldberg pointedly attacked Harlan's approach as requiring the court "to intervene in the state judicial process with a considerable lack of predictability and a consequent likelihood of considerable friction." Moreover, to extend the Bill of Rights is not to extend federal power, said Goldberg, "but rather to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual."

Clearly, the philosophies differ. But just as clearly, Pointer v. Texas shows that all nine present Justices agree that certain basic rights cannot be denied by any state government anywhere in the U.S.

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