HARLAN, J., concurring in result.

386 U.S.

as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.

The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.

For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court.

It is so ordered.

MR. JUSTICE STEWART Concurs in the result.

MR. JUSTICE HARLAN, concurring in the result. While I entirely agree with the result reached by the Court, I am unable to subscribe to the constitutional premises upon which that result is based-quite evidently the viewpoint that the Fourteenth Amendment "incorporates" or "absorbs" as such all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constitutional doctrine. See my opinion concurring in the result in Pointer v. Texas, 380 U. S. 400, 408.

I would rest decision of this case not on the "speedy trial" provision of the Sixth Amendment, but on the ground that this unusual North Carolina procedure,

to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws."

This has been construed as guaranteeing to all citizens the right to a speedy trial. See Commonwealth v. Hanley, 337 Mass. 384, 149 N. E. 2d 608 (1958). A similar provision was included in the New Hampshire Constitution of 1784, Part I, Art. XIV.

Kentucky, Tennessee, and Vermont, the three States which were admitted to the Union during the eighteenth century, specifically guaranteed the right to a speedy trial in their constitutions. See Vt. Const. 1786, c. I, Art. XIV; Ky. Const. 1792, Art. XII, § 10; Tenn. Const. 1796, Art. XI, § 9.

213

HARLAN, J., concurring in result.

which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of THE CHIEF JUSTICE.

247-216 O - 67 - 20

No. 310. Argued February 14, 1967.-Decided March 13, 1967.

Respondent, a manufacturer, in 1958 consented to the entry of a Federal Trade Commission (FTC) cease-and-desist order prohibiting it from engaging in further discriminatory activities violating § 2 (d) of the Clayton Act, and the FTC adopted the order in 1959. In 1964, following charges of additional discriminatory activities, respondent stipulated that it had committed violations of the 1959 order. The FTC petitioned the Court of Appeals to enforce the original order under the third paragraph of § 11 of the original Clayton Act, which authorized the FTC to apply to a court of appeals for enforcement of its orders. The Court of Appeals dismissed the petition for want of jurisdiction, upholding respondent's contention that a 1959 amendment (the Finality Act) substituting new enforcement remedies for those in § 11 had repealed the authority of the FTC to seek, and of the courts to grant, enforcement of FTC cease-and-desist orders entered before the Finality Act took effect. Held: FTC orders under the Clayton Act entered before the Finality Act was enacted remain enforceable under § 11 of the Clayton Act. Pp. 233-236.

(a) The provision in § 2 of the Finality Act making the Act's provisions inapplicable to a Clayton Act "proceeding initiated" before enactment of the Finality Act refers to the filing of the "proceeding" before the FTC and is not limited to the application for enforcement or petition for review in a court of appeals. P. 233.

(b) The express purpose of the Finality Act "to provide for the more expeditious enforcement of cease and desist orders" and the Act's legislative history are inconsistent with giving absolution to the almost 400 proven violators of the Clayton Act who are subject to pre-Finality Act orders of the FTC. P. 234.

356 F. 2d 253, reversed and remanded.

Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant

228

Opinion of the Court.

Attorney General Turner, Nathan Lewin, Howard E. Shapiro, James McI. Henderson and Thomas F. Howder.

Edwin S. Rockefeller argued the cause for respondent. With him on the brief were Donald H. Green and Joel E. Hoffman.

MR. JUSTICE CLARK delivered the opinion of the Court. This case involves the effect of the Act of July 23, 1959, 73 Stat. 243 (Finality Act), upon orders issued by the Federal Trade Commission under § 11 of the Clayton Act, 38 Stat. 734, prior to the date of the former Act. The respondent claims that the Finality Act repealed the enforcement provisions of § 11 of the Clayton Act, 15 U. S. C. § 21 (1958 ed.), and that orders of the Commission entered prior to the enactment of the Finality Act are not now enforceable. The Court of Appeals agreed, held that it had no jurisdiction to enforce such orders and directed that the proceeding be dismissed. 356 F. 2d 253. In view of the pendency of almost 400 such orders and the conflict among the circuits on the point, we granted certiorari. 385 U. S. 810.

1

I.

The facts are not disputed, save on points not relevant here, and will not be stated in detail. Jantzen manufactures men's, women's, and children's apparel. On September 4, 1958, it was charged by the Commission with having violated § 2 (d) of the Clayton Act by allowing discriminatory advertising and promotional allowances to certain of its customers. Jantzen did not answer the complaint. However, it consented to the entry of a cease-and-desist order against it prohibiting further discrimination in advertising and promotional activities.

1 See Federal Trade Comm'n v. Pacific-Gamble-Robinson Co, No. 18260 (C. A. 9th Cir. 1962); Federal Trade Comm'n v. Benrus Watch Co., No. 27752 (C. A. 2d Cir. 1962), and the instant case.

Opinion of the Court.

386 U.S.

This agreement and a form of order were approved by a hearing examiner and on January 16, 1959, the order was adopted by the Commission. On July 22, 1964, some five years after the adoption of the Finality Act, the Commission ordered an investigation into charges that Jantzen had violated the 1959 consent order. Jantzen stipulated before a hearing examiner that it had violated the consent order by granting discriminatory allowances to customers in Chattanooga, Tenn., and Brooklyn, N. Y. The Commission thereafter concluded that Jantzen had violated the order. It then applied to the Court of Appeals for an order affirming and enforcing the original order. The application was based on the provisions of the third paragraph of § 11 of the original Clayton Act, which authorized the Commission, in the event such an order was not obeyed, to apply to a court of appeals for its "enforcement." Jantzen claimed that the amendment of § 11 by the Finality Act resulted in a repeal of the Commission's authority to seek, and the courts' to grant, affirmance and enforcement of such orders. The Court of Appeals agreed and dismissed the application for lack of jurisdiction. We reverse and remand the proceedings for further consideration in light of this opinion.

II.

We start with the proposition that the Congress intended by its enactment of the Finality Act of 1959 to strengthen the hand of the Commission in the enforcement of the Clayton Act. As the report of the Committee on the Judiciary of the Senate stated: "The effectiveness of the Clayton Act . . . has long been handicapped by the absence of adequate enforcement provisions. . . . S. 726 would put teeth into Clayton Act orders and would fill the enforcement void which has existed for many years." S. Rep. No. 83, 86th Cong., 1st Sess., 2 (1959). The procedures existing prior to the adoption of the Finality