Where did the distinction between petty and serious offences vis-a-vis sixth amendment jury rights come from?

Well, there's the issue of how the U.S. Constitution's Bill of Rights (including the Sixth Amendment jury trial right) came to be applied to the states through incorporation. The theory that ended up winning out was that the Due Process Clause of the Fourteenth Amendment applied to the states:

nor shall any State deprive any person of life, liberty, or property, without due process of law

The Supreme Court eventually took this to mean that states couldn't violate any of its citizens' "fundamental" rights. And it just so happened that one by one, almost every right outlined in the Bill of Rights became recognized as a "fundamental" right over the course of several decades. There are a few notable exceptions, though. The right to a grand jury indictment is not "fundamental," so states don't have to do it in criminal cases even when the federal government does. The right to a jury trial in civil cases isn't "fundamental," either, so that's another right that only applies in federal court (to federal causes of action). And I think "excessive fines" in the Eighth Amendment hasn't actually been incorporated, although it is briefly mentioned approvingly in a case somewhere that analyzes "cruel and unusual" and "excessive fines" together. And there are rights not mentioned in the Bill of Rights that have been held to be "fundamental": the right for parents to send their children to private school, or to teach their children foreign languages, the right to privacy in sex, contraception, and abortion, the right to marry someone of another race, and a few other things.

But the practical takeaway is that the plain text of the Bill of Rights isn't what the Supreme Court looks at when discussing whether a particular provision applies to state criminal proceedings. It's one step removed from that, which is why the explicit and plain meaning of "all prosecutions" isn't the end of the inquiry for state cases. So if some summary offences in England were tried without juries, then that can be used as evidence that the right to a jury trial for lesser offenses today in the United States isn't a fundamental right, and that the Sixth Amendment went further than what was strictly necessary to protect fundamental rights.

So then that's the result. Federal criminal proceedings have a right to a jury. State criminal proceedings only have that right if they're serious enough offenses. Selective incorporation doesn't make the most sense to me (especially not through the Due Process Clause rather than the Privileges and Immunites Clause), but it's too late to turn back the clock on the basic framework now.

/r/law Thread