¶1concurring in result.
¶2In Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968), the United States Supreme Court held that the Sixth Amendment right to trial by jury applies to State criminal prosecutions, and cited with approval a study which had concluded “that juries do understand the evidence and come to sound conclusions in most of the cases presented to them and that when juries differ with the result at which the judge would have arrived, it is *466usually because they are serving some of the very purposes for which they were created and for which they are now employed.”
¶3In Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court rejected the presumption that trial juries will act rationally and held “that in 'a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habe-as corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” (Emphasis mine). Despite the Court’s disclaimers, recent history teaches us in Missouri that the Court’s use of the word rational gives a federal court carte blanche to substitute its view of guilt or innocence for that of the trial jury. See Antonio v. Kirkpatrick, 453 F.Supp. 1161, 1170 (D.C.1978); Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 (8th Cir., 1978).
¶4How does one explain this patent contradiction?
¶5Why did the Court retreat from Stone v. Powell, 428 U.S. 465, 96 S.Ct. 30, 37, 49 L.Ed.2d 1067 (1976), and return to the practice of injecting the federal judiciary into the administration of justice in the States?
¶6In the words of Mr. Justice Brennan, “[i]t was in the years from 1962 to 1969 that the face of the law changed.” William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harvard Law Review 489, 493 (1977). See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (See Mo.Const. Art. I, § 21); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (See Mo. Const. Art. I, § 18(a)); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (See Mo.Const. Art. I, § 19); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (See Mo.Const. Art. I, § 18(a)); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (See Mo.Const. Art. I, § 18(a)); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (See Mo.Const. Art. I, § 18(a)); Duncan v. Louisiana, supra (See Mo.Const. Art. I, § 18(a)); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (See Mo.Const. Art. I, § 19).
¶7It has been suggested that the Court’s “assault upon the legal order by moral imperatives” may have contributed to the excesses of the Nixon Presidency and Watergate. See Alexander M. Bickel, The Morality of Consent 120-123 (New Haven: Yale University Press, 1975). The suggestion may be accurate. It is a fact that at some point in time after World War II the Supreme Court of the United States ceased to function as a court. It molded itself into an organ for control of social policy and made that policy effectual by utilization of the Fourteenth Amendment to amend the Constitution according to the predilections of its majority. (Cf. Article V of the Constitution). I have no right to question the motivation or good faith of its majority or its desire “to do good things.” I do question the wisdom of its derogating “the rule of law” as a viable concept and its creating a climate in which the leaders of another department of government could come to believe that there are no legal limits to the exercise of arbitrary power and no ultimate responsibility to the governed. See Robert H. Jackson, The Struggle for Judicial Supremacy : A Study of a Crisis in American Political Power 322 (New York: Knopf, 1941); Charles H. Mclllwain, Constitutionalism : Ancient and Modern 146 (Ithaca: Cornell University Press, 1947).
¶8In-1978, Professor Tribe of Harvard University posed the question whether “the Constitution is only and always what the Supreme Court says it is.” See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). He expressed the belief that “despite the growth of federal judicial power, the Constitution remains a fundamentally democratic document, open to competing interpretations limited only by the values which inform the Constitution’s provisions themselves, and by the complex political process that the Constitution creates — a *467process which on various occasions gives the Supreme Court, Congress, the President, or the states, the last word in constitutional debate.” Laurence H. Tribe, American Constitutional Law 32, 33 (Mineóla, N.Y.: The Foundation Press, 1978). I agree with Professor Tribe. We now know that the Supreme Court does not. North Carolina v. Butler, - U.S. -, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
¶9To sum up: (1) “the Constitution is only and always what the Supreme Court says it is”; (2) no deviations will be tolerated; and (3) the lower federal courts will implement the Court’s policies through 28 U.S.C. §§ 1343, 2201, 2202 and 2254.
¶10I admit that I am not comfortable with all of this. To borrow again from Professor Tribe: “ … I do not regard the rulings of the Supreme Court as synonymous with constitutional truth. As Justice Robert Jackson once observed of the Court, ‘We are not final because we are infallible, but we are infallible only because we are final.’ And the Courts that held slaves to be nonpersons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible. Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos: the Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity.” Tribe, supra, at iii.
¶11To turn to the case before us: the principal opinion, although sufficiency of evidence is an issue throughout the case, does not mention the Jacksonrule. I agree that the judgment of conviction must be reversed and the defendant discharged. I also believe that we should address the question whether the Jacksonrule must be applied in our state appellate courts on direct appeal and on transfer. See Article VI, Constitution of the United States.
¶12What is to be the fate of Rule 27.26? Rule 27.26 was amended by this Court in 1967 in response to Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), so as to provide a meaningful state post-conviction remedy and for the purpose of eliminating any excuse for the federal judiciary to meddle in the administration of criminal justice in Missouri under the mantle of 28 U.S.C. § 2254. On reflection, we must recognize that we provided a viable state post-conviction remedy but that we failed dismally in our attempt to ward off the federal judiciary, particularly now that federal judges have been authorized by Jackson, supra,to decide whether Missouri trial juries have acted rationally in finding an accused guilty beyond a reasonable doubt — to effectually function as a super-jury.
¶13I would amend Rule 27.26 and restrict its provisions to claims of violations of the Constitution of Missouri. I submit that it is no longer excusable conduct for this Court to continue to “impose countless … hours of unproductive labor” (Jackson, supra,- U.S. at -, 99 S.Ct. at 2799) (Stevens, J., dissenting) on the judges of Missouri.
¶14I concur only in the result.