“ In Williams the Court strangely does an about-face. Rather than bind the States by the hitherto undeviating and unquestioned federal practice of 12-member juries, the Court holds, based on a poll of state practice, that a six-man jury satisfies the guarantee of a trial by jury in a federal criminal system and consequently carries over to the States. ”

“ The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does not require 12-member juries is, in my opinion, much too thin to mask the true thrust of this decision. The decision evinces, I think, a recognition that the 'incorporationist' view of the Due Process Clause of the Fourteenth Amendment, which underlay Duncan and is now carried forward into Baldwin, must be tempered to allow the States more elbow room in ordering their own criminal systems. ”

“ It can hardly be gainsaid that a jury requirement with the attendant time for selection of jurors and deliberation, even if not invoked by all defendants, will increase delays in calendars, depriving all defendants of a prompt trial. Impressive evidence suggests that this requirement could conceivably increase delays in New York City courts by as much as a factor of eight. A study done of the administration of the Municipal Court in Minneapolis shows that the requirement of a trial by jury in cases of intoxicated driving increased court delays there from three to 24 months. ”

“ In courts not of record, which have jurisdiction of misdemeanors, punishable by up to one year's imprisonment, charges are tried without a jury. The defendant may appeal as of right to the circuit court, where he receives a trial de novo. ”

“ In both cases, more patently in Williams than in Baldwin, the history of jury trial practice in both the state and federal systems has been indiscriminately jumbled together as opposed to the point of departure having been taken from the language in which the federal guarantee is expressed and the historical precedent that brings it to life. ”

“ Eight States provide for juries ranging from five to 12 to try crimes punishable by one year in prison, and one State has provided for a verdict by nine in a jury of 12. [20] Five States first provide a bench trial for misdemeanors from which the defendant can seek a trial de novo by jury, [21] a procedure that this Court, in a federal trial, has deemed incompatible with the Sixth Amendment for putting the accused to the burden of two trials if he wishes a jury verdict. ”

“ Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898) , where the Court was called upon to define the term 'citizen' as used in the Constitution. 'The Constitution nowhere defines the meaning of these words (the Citizenship Clause) * * *. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.' 169 U.S., at 654, 18 S.Ct., at 459. History continues to be a wellspring of constitutional interpretation. ”

“ Today's decisions demonstrate a constitutional schizophrenia born of the need to cope with national diversity under the constraints of the incorporation doctrine. In Baldwin the prevailing opinion overrides the consideration of local needs, but in Williams the Court seeks out a minimum standard to avoid causing disruption in numerous instances even though, a priori, incorporation would surely require a jury of 12. ”

“ More discriminating analysis indicates that four States besides Florida authorize a jury of less than 12 to try felony offenses [17] and three States authorize a nonunanimous verdict [18] in felony cases, and at least two other States provide a trial without jury in the first instance for certain offenses punishable by more than one year with a right to de novo trial on appeal. ”

“ The structure of our Government still embodies a philosophy that presupposes the diversity that engendered the federalist system.
That these doctrines are not only alive in rhetoric but vital in the world of practical affairs is evidenced by contemporary debate concerning the desirability of returning to 'local' government the administration of many programs and functions that have in late years increasingly been centralized in the hands of the National Government. ”

“ United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930) , where the Court reaffirmed earlier pronouncements and stated that the Sixth Amendment jury is characterized by three essential features: ' (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them in respect of the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.' See also Maxwell v. ”

“ No precedent is sacrosanct and one should not hesitate to vote to overturn this Court's previous holdings-old or recent-or reconsidered settled dicta where the principles announced prove either practically (e.g., Moragne v. States Marine Lines, supra; Boys Markets v. Retail Clerks, supra) , or jurisprudentially (e.g., Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969) (dissenting opinion) ) unworkable, or no longer suited to contemporary life (e.g., Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (concurring opinion) ) . ”

“ United States, 197 U.S. 516, 527, 25 S.Ct. 514, 518, 49 L.Ed. 862 (1905) ; Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948) (unanimity) . [13] As Mr. Justice Frankfurter stated in Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958) , in applying a constitutional provision 'rooted in history * * * a long course of adjudication in this Court carries impressive authority.'
The principle of state decisis is multifaceted. It is a solid foundation for our legal system ”

“ The holding that retrial by a jury of eight was an ex post facto law is perforce built upon the conclusion that the jury of 12 was a right of substance. If the right were merely a procedure mandated by statute, it would not have required the ex post facto holding.↑ The Federal Rules of Criminal Procedure provide for a jury of 12. Fed.Rule Crim.Proc. 23, and as recently as last year lower federal courts have assumed this Court's commitment to the unanimous verdict of 12. United States v. Fioravanti, 412 F.2d 407, 418 (C.A.3d Cir. 1969) ; Williams v. ”