The Constitutional Accountability Center, which often puts forward originalist arguments, has a petition for certiorari arguing in favor of full incorporation of the Sixth Amendment Jury Trial Right. In the 1972 Apodaca v. Oregon case, the Court in a 4-1-4 decision held that while the Sixth Amendment required a unanimous jury to convict in federal court, it did not require such a jury to convict in state court. While the Due Process Clause of the 14th Amendment limits the procedures that states can use in criminal trials, it does not require that the full Sixth Amendment unanimous jury right be employed. In reaching this conclusion, Justice Powell’s opinion emphasized federalism and experimentation as reasons not to incorporate the Sixth Amendment right.
Since I believe (although am not certain of) the arguments in favor of incorporation, I am sympathetic to this Sixth Amendment argument. Incorporation, however, can occur under at least one of two theories. Under the first theory, the 14th Amendment incorporated the original meaning of the Bill of Rights. According to this view, the Sixth Amendment would be fully incorporated and states would be required to have unanimous criminal juries.
Under the second theory, the 14th Amendment incorporated the meaning of the Bill of Rights as of the time when the 14th Amendment was enacted. The question, then, is what the provisions meant in 1868, not in 1791. I am sympathetic to this view and have employed it in my own scholarship.
I am not familiar with how the right to a criminal jury was understood in 1868 – either the understanding of the Sixth Amendment or the understanding of the right at the state level. To conclude that states are required to have unanimous jury requirements, one would need to establish that the criminal jury right required a unanimous jury in 1868. I would not be surprised if this was the dominant view, but one wants to have evidence before concluding that the right was incorporated under this second theory.