 Justice Harlan , who agreed with the decision to reverse the Texas court 's judgment but not with the majority 's reasoning , wrote a short separate concurring opinion . He repeated his position that the Due Process Clause did not incorporate the Bill of Rights to the states ; rather , the Bill of Rights was a " rational continuum , which , broadly speaking , includes a freedom from all substantial arbitrary impositions and purposeless restraints " . He isolated the Texas law 's distinction between the co @-@ defendant testifying for the state while being barred from testifying for the defendant as having " no justification " . Thus , he rejected holding the trial unconstitutional on Compulsory Process Clause grounds ; he argued instead that the State 's " arbitrary bar " against a criminal defendant 's calling a co @-@ defendant as a witness for his side , while allowing the co @-@ defendant to testify for the prosecution , violated the Due Process Clause . 
