In the case of Maxwell v. Dow, the U.S. Supreme Court ruled in 1899 that a state could use a jury of fewer than twelve people for criminal trials without violating the Fourteenth Amendment's due process clause. The plaintiff, John Maxwell was convicted by an eight-person jury in Utah and argued that this violated his constitutional rights to trial by jury as defined under common law (which traditionally required twelve jurors). However, the court held that while some aspects of common law were incorporated into federal constitutionality through amendments like the Fifth and Sixth Amendments, not all elements were included - such as specific requirements about juries' sizes. Therefore, states had discretion over their own judicial procedures unless they directly contradicted federally protected rights; thus Utah’s decision to have smaller juries did not infringe upon any constitutional protections.

In the dissenting opinion for Maxwell v. Dow, Justice Harlan argued that the Fourteenth Amendment's Privileges or Immunities Clause should be interpreted to incorporate all of the Bill of Rights against state governments. He contended that this clause was intended to protect individual rights from infringement by states and disagreed with the majority's narrow interpretation which allowed states more leeway in determining their own criminal procedures. Harlan also expressed concern about potential abuses of power if states were given too much discretion over these matters. Furthermore, he disputed the majority’s claim that jury trials weren’t necessary for justice, arguing instead they are a fundamental right under U.S law and constitution.