JUDGE BIOS

Justice Hugo Lafayette Black

-b. Harlan, Alabama
-associate justice 1937, 1971
-2 year undergraduate law degree at University of Alabama
-Birmingham police court justice
-FDR’s first appointee
-joined KKK in 1923; resigned when joined Senate
-usually differed with Jackson and Frankfurter
-positive conception of the court
-believed court should stick to the text and historical record; limited judicial discretion
-literal absolutist interpretation of the First Amendment
-saw due process as an independent constitutional guarantee
-overall he was a “liberal-activist”

Cases (Decisions)
Major dissenting and concurring opinions highlighted here.. the rest of the cases are unlisted…

New York Times v. Sullivan (1964) concurred

Bell v. Maryland (1964) dissenting
Cox v Lousiana (1965) dissenting
Adderly v Florida (1966) wrote opinion of the court
Dennis v. United States (1951) dissenting
Konisberg v. State Bar of California (1957) wrote opinion of the court
Konisberg II (1967) dissenting
Barenblatt v. United States (1959) dissenting
Aptheker v. Secretary of State (1964) concurring
Tinker v. Des Moines (1969) dissenting
Griswold v. Connecticut (1965) dissenting
Katz v. United States (1967) dissenting
Mapp v. Ohio (1961) concurring
Gideon v. Wainwright (1963) wrote opinion of the court
Pointer v. Texas (1965) wrote opinion of the court
Harper v. Virginia Board of Elections (1966) dissenting
Griffin v. Illinois (1956) wrote opinion of the court
Goldberg v. Kelly (1970) dissenting
Amalgamated Food Employees v. Logan Valley Plaza (1968) dissenting

Justice Clark
-grew up in Dallas, TX—family of lawyers
-appointed attorney general by Truman in 1945
-appointed to the supreme court 1949 by Truman (criticized for his zeal for
national security from civil liberties groups)
-showed ideological independence
-wrote the majority opinion for Mapp v Ohio (1961)

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 -his most significant opinion: a controversial decision prohibiting, in state
criminal trials, the use of evidence obtained through unreasonable search
and seizure

Justice Douglas
-born into poverty and crippled by polio
-rugged outdoorsman and individualist who delighted in solitude “solitary hikes”
and flouted convention
-spokesman for personal freedom
-offered Justice Douglas Brandeis’ seat 1939—was the second youngest supreme
court appointee and the youngest in 128 years
-pro-New Deal outlook
-later reputation as a civil libertarian
-in most cases Douglas voted or wrote silently in support of theories developed by
Justice Black
-wrote famous opinion in Griswold v CT where he identified a constitutional right
to privacy emanating from the first, third, fourth, fifth, and ninth amendments
(Black dissented in this case)
-retired in 1975, serving the longest of any justice in history
-legacy as symbol for the personification of individualism and his advocacy for
the powerless

Abe Fortas, 1910-1982

Early Life & Education
• Son of immigrant Jews
• Yale Law School; editor of Yale Law Review
Work Experience
• New Dealer: Agricultural Adjustment Administration, Securities & Exchange
Commission
• Departement of the Interior: fought interminment of Japanese Americans
• Established successful law firm in Washington: advocated protection of civil liberties
during Red Scare; defense attorney in Gideon v. Wainwright
Supreme Court Justice
• Appointment to the Court by Johnson, who engineered Goldberg’s departure for the
vacancy
• Legal Activist: shared in courts commitment to expanding civil liberties and civil rights;
opinion reflected concern for social policy over legal precedence; construed Due Process
Clause as broad guarantee of fairness
• Authored majority opinion in Tinker v. Des Moines: advocated right of student to engage
in non-disruptive protest
• Stood with the majority opinion in Miranda v. Arizona, upheld Voting Rights Act of
1965, invalidated poll tax and insisted on legislative reapportionment
Late Career
• Nominated by Johnson as Chief Justice after Warren resignation, but Fortas withdrew
due to Senate filibuster

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Resigned in disgrace for accepting honorarium for serving on charitable foundation from
former client

Felix Frankfurter
• Most controversial justice of his time
• Openly progressive politics
• Acted with much restraint
• He attached himself to Justice Oliver Wendell Holmes, whose intellectual appetites were
as voracious as the younger man’s, and to Justice Louis Brandeis, whose social
conscience needed a strong right arm unencumbered by the restraint that a justice of the
Supreme Court felt.
• One of FDR’s most trusted advisors
• His opinions on 1st and 14th amendment cases rested on precise calculations of balancing
• Frankfurter conceived claims in terms of group interests
• He was never a formalist, a literal reader of the constitution or of statutes, much less of
judicial precedents
• Frankfurter added to the balance conditions external to the court.
• He joined in Korematsu v. US (1944) and maintained his commitment to the flag salute
requirement in West Virginia State Board of Education v. Barnette (1943) because the US
was engaged in a war with a horrific foe, and the claims of government, based upon any
reasonable construction, must trump individual rights, unless those rights were essential
to the broader historical framework of republican constitutionalism.
• Frankfurter insisted that the constitution rested upon an historical evolution of basic
notions
• Frankfurter believed that the high court must educate public opinion on constitutional
issues
• Frankfurter’s strong attachment to coordinate federalism, expressed in his dissents in
Mapp v. Ohio (1961) and Baker v. Carr (1962), was of a piece with his deference to
popularly elected assemblies.
• Frankfurter found himself increasingly estranged from the liberal wing of the court due
mostly to his pro government stance on the flag salute cases
• Believed in a rational, balanced, system-conserving restraint. The courts could not save
the world, but neither would they stand by when government threatened the process of
adjudication itself
• The doctrine of moot-ness, ripeness, standing, and a “second look” in constitutional
questions – reasons for avoiding reaching constitutional questions – that Brandeis
pioneered and Frankfurter popularized fit perfectly into his jurisprudence.
• Frankfurter, along with Black believed that desegregation was constitutional, and must
come. Both men feared the practical consequences of an immediate desegregation order.
• Frankfurter came from an orthodox Jewish family and throughout his career he was a
Zionist and a supporter of secular Jewish causes
• Frankfurter’s most controversial decisions:
o Minersville School District v. Gobitis (1940)
! Upheld the suspension from public school of Jehovah’s witnesses for their
unwillingness to salute the flag
o Dissent in Everson v. Board of Education of Ewing Township (1947)

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 ! The majority of the court upheld a state law permitting state funds to
underwrite religious education
! Frankfurter believed no one was entitled to special treatment, special
exemptions, or special subsidies under the law
• Frankfurter’s opinions on labor union practices in strikes and controversial concurrence
in Cooper v. Aaron (1958) restated this theme: the obligations of law precede and create
rights.

Justice Arthur Justice Goldberg (1908-1990) (from sourcebook p. 22)

• Originally from Chicago; Northwestern Law graduate in 1929
• Associate justice from 1962-1965
• Practiced labor law; former general counsel for United Steelworkers and the Congress of
Industrial Relations; “largely responsible for the AFL-CIO merger of 1955”
• Appointed Secretary of Labor by Kennedy in 1961
• Appointed by Kennedy to replace Felix Frankfurter, expected to fill “Jewish seat”
Frankfurter left behind
• Believed that the Court should protect a “’permanent minority’ that had been excluded
from the political process”
• Best known opinions for Escobedo v. Illinois (1964) and concurrence in Griswold v.
Connecticut (1965)
• After serving on court, had long career as advocate of human rights
• Opinions in our sourcebook: Bell v. Maryland (concurring) p. 267, Cox v. Louisiana p.
283, Katzenbach v. McClung (concurring) p. 311, Aptheker v. Secretary of State p. 528,
Griswold v. Connecticut (concurring) p. 606, Pointer v. Texas (concurring) p. 750

Justice John Marshall Harlan II (1899-1971) (from sourcebook p. 23-25)

• Associate justice from 1955-1971
• Princeton graduate and Rhodes Scholar
• Former assistant U.S. attorney in late 1920s
• Headed the Amery Air Corps’ operations analysis section in England in WWII
• Appointed as federal judge on U.S. Court of Appeals for the Second Circuit (heard case
where upheld Smith Act convictions of twelve Communists)
• On the Court, was part of Felix Frankfurter’s “restraintist voting bloc” (24)blieved in ad
• His voting patterns “reflected deference to governmental power, especially assertions of
state authority” (24).
• Preferred to use precedents; believed in adhering to abstention and self-restraint to
restrain judicial power; generally preferred narrow constitutional interpretation (“closely
tied to the facts of the case at issue and thus limited in their potential for expansion to
other contexts.” (25))
• Opposed “one person, one vote,” expansive reading to the equal protection guarantee,
and incorporation of the Bill of Rights into the Fourteenth Amendment
• “Leading proponent” of “Wechslerian ideal” that “judicial decisions must be truly
principled, based on analysis and reasons transcending the immediate result of specific
cases” (25); appealed to neutral principles

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 • Opinions in our sourcebook: NAACP v. Alabama, ex rel Patterson p. 217, NAACP v.
Button (dissenting) p. 222, Katzenbach v. Morgan (dissenting) p. 315, Yates v. United
States p. 385, Konigsberg v. State Bar of California (1957) (dissenting) p. 476,
Konigsberg v. State Bar of California (1961) p. 487, Barenblatt v. United States p. 492,
Scales v. United States p. 503, Noto v. United States p. 505, Gibson v. Florida Legislative
Investigation Committee (dissenting) p. 506, Griswold v. Connecticut (concurring) p.
606, Mapp v. Ohio (dissenting) p. 730, Gideon v. Wainwright (concurring) p. 740,
Pointer v. Texas (concurring) p. 750, Miranda v. Arizona (dissenting) p. 754, Reynolds v.
Sims (dissenting), p. 776, Harper v. Virginia Board of Elections (dissenting) p. 789,
Douglas v. California (dissenting) p. 863

Justice Thurgood Marshall

Legal career:
1936 – begins working with NAACP
1948 – wins Shelley v. Kraemer
1950 – wins Sweatt v. Painter and McLaurin v. Oklahoma State Regents
1954 – wins Brown v. Board
1961 – After exhausting all tactics of legal recourse for the civil rights movement, Marshall was
appointed to the Second Court of Appeals; all of his decisions there were later upheld by the
Supreme Court
1965 – Appointed U.S. Solicitor General
1967 – First African American on the Court, appointed by LBJ
1991 – Retired from the Court
Significance:
Marshall’s time on the Court had little overlap with the Warren Court, so that is not his primary
significance for this class, authoring only one sourcebook opinion: Amalgamated Food
Employees v. Logan Valley Plaza (1968). His work with the NAACP is extremely important. He
was responsible for developing the Legal Defense and Education Fund, which was responsible
for the string of civil rights victories prior to Brown. His hardline strategy of challenging Plessy
v. Ferguson in Brown v. Board is worth noting.

Justice Stanley Foreman Reed

Legal career:
1910-1929 – Private practice & WWI
1929 – Appointed to Federal Farm Board
1935 – Appointed Special Assistant to the Attorney General; later appointed Solicitor General,
where he tried, with decreasing success, to defend many of the New Deal cases
1938 – After the failed court packing plan, he was appointed by FDR
1956 – Retired from the Court
Significance:
As a New Deal appointee, Reed was economically liberal, but was fairly socially conservative.
His opinion in Adamson v. California, before the Warren Court, is the only one in the
sourcebook. He was generally a proponent of judicial restraint, but he did ultimately join in
Brown v. Board.

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White, Byron Raymond
Appointed to the Supreme Court in 1962 by JFK. Colorado Democrat. Grew up in an
agricultural community, excelled in sports and athletics as a youth. Played for the Steelers in
1939, then went to Oxford on a Rhodes. Came back to US when the war started, went to Yale
Law School, and played another season the Detroit Lions. Then joined the navy. Graduated
from Yale w/ high honors in 1946 and clerked for Chief Justice Vinson for a year. Supported
Kennedy during his campaign, and when JFK won, he appointed White the deputy attorney
general. Then Whittaker resigned and White was appointed. On the court, he espoused
“nondoctrinaire pragmatism.” Most liberal with regards to discrimination issues during Warren
Court. Later, in the 80s, he got more conservative with the affirmative action stuff. Personally
usually pretty conservative – favored restrictive views on obscenity, voted to uphold laws against
flag burning, approved aid to sectarian schools, and was one of two dissenters in Roe v Wade
(1973). Wrote the opinion uphold sodomy statutes in 1986. Most conservative with respect to
criminal cases like Escabedo and Miranda. Also critic of exclusionary rule dealing w/ 4th
Amendment stuff.

Decisions and things:

- Majority opinion in Baggett v. Bullitt 1964
- Dissented in US v. Robel 1967

WEEK 1
Lecture 1: Review of Amendments of 1-10, 13, 14

Key points: Bill of Rights is anti-federalist and a limit on Congress, not on state legislatures.

Important Amendments

Amendment 1: freedom of speech, religion, assembly, and petition the government for redress

Amendment 4: protection against unreasonable search and seizure

Amendment 5: (1) indictment by grand jury, (2) double jeopardy, (3) not compelled to bear
witness against himself in criminal case, (4) due process of law, (5) deprived of private property
without just compensation

Amendment 6: assistance of counsel for defense

Amendment 7: right to trial by jury in all cases where value in controversy greater than $20; lack
of inflation consideration used to argue against application of bill of rights to the states

Civil War Amendments

Amendment 13: abolished slavery

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Amendment 14: no state shall deprive any person of life, liberty or property without due
process of law, nor deny any person equal protection of the law; 1st amendment addresses
towards the state

September 22, 2004 lecture notes

-75% of the cases of the warren court were based on constitutional amendments
-passed after the civil war (13,14,15) hence the civil war amendments

Bill of Rights
Meeting in Philly 1787
By 1788, country in argument over ratification
1789, George Washington sworn in, congress met
-Anti-federalists were not going to vote for ratification without Bill of Rights
-1789, first order of business - bill of rights, submit to states
-1791, legislation ratified, (2 years later than constitution)
-most important for warren court = first amendment

First Amendment:
-intention with each other on the issue of religion must be made together with "Congress
shall make no law…" established religions paid their ministers (including MA)
-Bill of Rights were addressed to the Federal Government not to state legislatures
(controlled via state elections); it is a limitation on the federal government's power
-constitution to the national government

Only changes during warren court, after civil war

Remember 5 things:
-freedom of speech
-freedom of press
-freedom of religion
-freedom of assembly
-establishment of religion
(no worry about petition)

Nothing to do with the second amendment

Third Amendment:
-MA, quartered soldiers here cause to lead to amendment; 1991 - 200th anniversary -
have totally become obscure! Few times cited

Fourth Amendment
-"unreasonable searches and seizures" w.c.

Fifth Amendment
-indictment of grand jury
-double jeopardy

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 -criminal case, self-incrimination (McCarthy) 5th amendment communists
-due process (bereft/stolen without)
-just compensation if private property taken)

Sixth Amendment
-assistance of counsel Bill of Rights ---> 90% criminal cases in states; in the warren court
it was Gideon v. Wainwright

Seventh Amendment
-$20.00 (time depreciation of dollar value)
Guarantees trial by jury for every petty lawsuit (if was less) in the federal system
otherwise there is the small claims court in states.
-don't want to apply the bill of rights to the states

Ninth Amendment
-like 3rd amendment, never appeared until our period, viewed as tautology

Tenth Amendment
-like 9th, "that which is not given is retained"
-became a big deal in recent years…not our era!

Civil War Amendments

13th - abolished slavery without

14th - phrasing induced citizenship rules
-first time addresses the states (limiting power) radical change
-privileges and immunities
-due process to states while before it was only to the federal government
-equal protection clause
THIS CONSUMED THE WARREN COURT

15th - first time cannot deny voting right; almost immediately ignored after passage.

September 24, 2004 lecture notes

Thursday, September 28th SUPER CHIEF 4 pm/ 7 pm in Science Center B

1953 appointed by Eisenhower; sends resignation to Lyndon B. Johnson before Johnson was put
and enemy Nixon in…

Lochner era, Lochner case (most influential)

14th amendment due process clause:

Lochner v. New York 1905 (most important until Brown v. Board of Education)
Hours of more than 16 for bakers was a violation of freedom of contract; due process clause
guaranteed freedom of contract and therefore, could not interfere with the working conditions.

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This case symbolized:
----> 1912 total usurpation of judicial law/system

Supreme court struck down case because interfered with due process clause; was to extend rights
to freed slaves

Page 43 Chief Justice Holmes dissent - when it is appropriate for the supreme court to interfere
with social, economic legislation.

Herbert Spencer, philosopher. Political theorist of lassie-faire limited governmental powers

Holmes' Darwinism, natural selection (dominant opinion of the supreme court) deciding one way
or the other; cure is judicial restraint, refer to the legislature. To defer to the natural outcome…

Triumph of the Holmes' dissent until the supreme court switch in 1937 (began to crack before
1937)

1936 FDR massive landslide win

Appoint court justice more than 70 of 3___
New York minimum wage law (1936) supreme court law due to Lochner

1937 another legislation to justice Roberts switched and upheld

Court packing plan was wrong (not cause) FDR.

Justice Hugo Black replaced a resigned Justice

Page 41 Carolene Products Case

New deal settlement of 1937 that involved economic regulation of milk
Justice Stone - there is now a presumptuous legality. Rational Basis Test. Facts beyond judicial
note, judicial inquiry.

If you can perform a thought experiment and come up with a rational reason...uphold the law

Page 42, FOOTNOTE when is it appropriate to intervene?

Cannot violate Bill of Rights, otherwise another presumption is necessary. Heightened
judicial scrutiny beyond civil right and civil liberties and rational basis test.

Justice Frankfurter, Justice Stone and Justice Black

Judicial restraint; no distinction of rights vs. distinction of rights although didn't follow

1938, first of two cases

United States v. Carolene Products Co. (1937)

-New Deal settlement involving the economic regulation of milk. Stone issued the standard by
invoking the rational basis test – that regulatory legislation cannot be deemed unconstitutional
unless there are known facts or assumed to be in line with reasoning for resting on rational basis.

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If the rational basis can be claimed on from facts “beyond the sphere of judicial notice” then it
warrants a closer look – also called judicial inquiry.
The most important part of the Carolene Products Co. case is the Carolene Products Footnote 4
by Justice Stone. Usually the carolene products is seen as resolving tensions between judicial
review and democracy.

The Carolene Products footnote provides that a “more exacting judicial scrutiny” than simply
Frankfurter’s deferential judicial restraint is necessary on three grounds: (1) if legislation appears
to violate one of the “prohibitions of the constitution”; (2) if legislation restricts political process
that would otherwise overturn undesirable legislation; or (3) when reviewing “statutes directed at
particular religions, or national or racial minorities” because of “prejudice against discrete and
insular minorities may be a special condition” that restricts the political processes normally used
to protect such minorities.

This footnote gave way for incorporation of the Bill of rights into the 14th amendment. "

Lochner v. New York (1905)

Court struck down a NY statute providing that no employee in a bakery could work more than 60
hours per week. The court held that the statute infringed upon both employee’s and employer’s
liberty of contract. The supereme court decided that the law was unconstitutional because it
infringed on the due process clause of the 14th amendment. The court also struck down the
minimum wage law.

Importance: most famous example of the supreme court giving substantive content to the “due
process” clause by scrutinizing and occasionally striking down state/federal economic and
regulatory legislation as unconstitutional infringements of “liberty” and “property”.

Fiss, Troubled Beginnings

The Fiss piece begins by highlighting the court at the beginning of the twentieth century. This,
early 1900’s court (the Fuller court), was the Supreme Court which decided Lochner v. New
York and was considered to be one that protected the property owners and the wealthy at the cost
of the workers. By constantly overturning laws that would have helped labor, the Fuller court
began to draw criticism by those who believed that the court was overstepping its bounds and not
allowing state legislation to go forward without federal intervention. This all changed however,
when FDR succeeded in his court packing scheme and was able to appoint more liberal judges to
the Supreme court. It was this liberal court started by FDR’s presdiency, one that was reacting to
the Fuller court, that eventually decided Brown V. Board.

The majority of this article seems to be prefacing an essay on the question of how Lochnner can
be considered a bad decision, but Brown be considered a good one. What essentially is the
difference between the two? The Lochner decision is viewed as the court interfering in state
legislation on the grounds of personal rights and liberty (in that case contract rights). The Brown
decision similarly interferes with state legislation on the basis of rights and liberty. The rest of
the article presents ideas for what differentiates the two, and how we can reconcile Lochenr as a
poor decision and Brown as a good decision.

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Fiss says some argue it is an economic v. social policy distinction. Other’s say it is property
rights as opposed to human rights. Still others say it is like the Carolene products footnote, an
insular and discrete minority can be defended by the supreme court if they can’t participate fully
in the legislative process. In the end Fiss rejects all of these attempts to distinguish the two as not
fully satisfactory. I spoke to my TF and he says that the issue of how to distinguish the two
instances of interference with state legislation is still a highly contested issue.

West Virginia Board of Education v. Barnett (1943)

Background:
This is the second of two flag salute cases, the first being Minersville School District vs. Gobitis.
Both cases were brought to the Court by Jehova’s Witnesses because they were expelled from
school for not saluting the flag. In Gobitis (1940), the justices voted 8-1 to uphold the
Pennsylvania statute requiring the salute. Barnett overturned this case and others like it.

Internal Reasoning:
The Court (through Jackson) decided to change its stance for three main reasons. First, it claims
that there was a difference between the Pennsylvania and West Virginia cases; the plaintiff in
Barnett was overturning a statute because it infringed upon his rights for some reason other than
protecting the rights of another whereas Gobitis was seeking immunity while the statute
remained in place. Where the statutes differed is not clear. Second, national unity, which is
cited as a reason for the first case’s decision, can not be compelled. It seemed too much like the
Nazis. Thirdly, coerced conformity of act and faith clearly violates the spirit of the constitution.
Frankfurter dissented:
While the law is distasteful, judicial restraint must be exercised. The laws do not violate the
“rational basis” test, and so the Court should not overrule the elected legislature. The first
amendment does not afford special provisions in a way that supercedes other parts of the
constitution. Additionally, free speech was not abridged by these laws, and students were free to
publically disavow their beliefs in the pledge and the flag after taking part in the salute and the
pledge of allegiance. Finally, the Court should not so quickly overrule itself; to do so weakens
the Court and makes it more an instrument of the political mood than it should be.

External Reasoning
While we do not have the text of that document to read, lecture notes seem to indicate that the
opinion of the court (written by Frankfurter) was heavily influenced by concerns for national
unity. Since the earlier case came during FDR’s Cash & Carry policy, before the US joined the
war, it was a historical nadir of unity. Once the nation went to war, however, national unity was
assured, and justices like Stone were afraid of seemingly fascist coerced conformity.
The other external factor leading to the change is that Gobitis signaled an open hunting season on
discrimination against Jehova’s Witnesses. The laws were intentionally passed to single them
out on account of their anti-Catholic proselytizing. After 3 years of systematic persecution under
such laws, however, the Court realized that they could no longer uphold them in good
conscience.

Legacy
• Jackson’s opinion specified that suppression of free speech would only be allowed if it
constituted a clear and present danger.

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 • Following in the tradition of the Carolene Products Footnote, the constitution must be
interpreted with a 20th Century worldview (living document).
• This was the first case in the Court to celebrate the diversity of America, not merely to
tolerate it.

Adamson v. California (1947)

This is the typical case about whether the Bill of Rights is incorporated through the 14th
Amendments and applied to the states. Early in the 19th Century, a case called Barron v.
Baltimore decided that the Bill does not directly imply. Later, after the 14th was passed, Twining
v. New Jersey stated unambiguously that it did not. Then, even later, a case known as Palko did
say that certain amendments could be incorporated, but not the Bill as a whole.
The specifics of this case referred to a California statute allowing criminal prosecutors to ask the
jury to draw inferences from a defendant choosing not to testify, in clear violation of the fifth.
Here, the Court determined that the statute should be upheld.

Internal logic:
Frankfurter concurred:
Due Process means Due Process, not the Bill of Rights. The Bill of Rights is too specific to be
taken as intended for each state, and thus, it was clearly meant for federal judiciaries only. 42 of
43 former Justices passed on saying that Incorporation was the law of the land. Deference to
state courts are called for in any sort of accepted notions of justice.

Black dissented:
First of all, very nebulous references to “natural law” which basically he takes to mean
enlightened common sense. Horowitz pointed out that “natural law” has a specific definition in
theology, and that Black has it entirely wrong. Beyond that, he said that the 14th was written in
specific reaction to Barron, and therefore his reading of history is that the framers of it fully
intended incorporation. He says this pretty much without precedent or justification, but still got
three justices to join his opinion. Murphy and Rutledge chose to join to point out that Due
Process, while including the Bill of Rights, also encompasses a wider meaning of justice.

Additional info:

Black’s Southern Protestant upbringing were the source of the theological tone to his writing.
They further led him to make very literalist interpretations of the Constitution in the same vein
that the Protestant Revolution led to much more literal readings of the Bible.

Powe, pgs. 1-18

-The Supreme Court had been the biggest obstacle for Roosevelt’s New Deal plans, striking
down major measures: “120 million Americans are ruled by five men!” - Hugo Black
-Roosevelt’s Court-Packing plan: add a new justice for each current one over 70 (6 at the time,
1937). But then the court starts deciding in his favor, and dissenter Van Devanter dies, so
Roosevelt has his seat to fill.
-Roosevelt’s Justices: Roosevelt appoints Hugo Black, who the senate “has” to confirm
(senatorial courtesy, even though he wasn’t liked). Rumors of Black being in the KKK come
out, but he stays on the court and atones for having been in the KKK w/ his votes. He then gets 7

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more appointments, all New Dealers. Black, Frankfurter, Douglas, and Jackson are around
through the Warren court. Frankfurter was a progressive, believed in disinterested experts.
Douglas had empathy for downtrodden throughout his career.
-Economic Regulation: Roosevelt justices all believed Govt has authority to regulate the
economy.
-Civil Rights: Sweatt v. Painter holds newly created Af-Am law school unconstitutional (no
alumni). Shelley v. Kraemer doesn’t allow racially restrictive covenants preventing sale of
houses to blacks (only symbolic, but still important).
-Criminal Procedure: Frankfurter et al argue that principles of federalism mandate that the states
be free to develop their own systems of criminal justice.
-WW II: civil liberties clashes. Minersville School District v. Gobitis sustained compulsory flag
salute dspite objections of Jehovah’s Witnesses, whos children get kicked out of school. West
Virginia v. Barnette changes this in a moving opinion delivered on Flag Day. However, major
civil liberties blemish in upholding the Japanese detention camps.
-The Justices and Politics: Many justices have presidential ambitions. Truman has a number of
undistinguished appointees who are enthusiastic Cold Warriors.
-The Cold War: HUAC and SISS attack members of Communist Party as Soviet spies.
Rosenbergs indicted and executed, all under backdrop of communist expansion in Europe and
Asia.
-Sustaining the Domestic-Security Program: Dennis v. United States upheld conviction of Party
leaders for advocating overthrow of government at some unknown time. Joint Anti-Fascist
Refugee Committee v. McGrath essentially upheld Attorney General’s list as a legit blackballing
mechanism, upheld in Bailey v. Richardson.

Rights in the Modern Era: Applying the Bill of Rights to the States (1992)
Stephen J. Wermiel

Wermiel looks at the time between colonial conceptions of rights and the modern view from
1925 to 1969 when the Supreme Court ruled that most provisions of the Bill of Rights function
as checks on the power of the state governments and not as limits on federal authority.
Incorporation is the process of applying the Bill of Rights to the states.

To illustrate the effect of incorporation, Wermiel gives the example:

Public school officials in Providence, RI began a junior high graduation ceremony in the summer
of 1989 with a prayer and ended with a benediction (by the rabbi). A student was offended and
the family sued the school board. The supreme court decided whether a federal district court in
Providence and a federal appeals court in Boston were right when they found that the
benediction violated the First Amendment guarantee against establishment of religion.

Until 1947, the 1st amendment had nothing to do with the above case. Well known cases like the
Miranda warnings, exclusionary rule, right to counsel, prohibition of prayer in public schools,
the actual malice protection all involved a changed outlook toward incorporation and away from
strictly dealing with the actions of the federal government.

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There were many reasons for adoption of the federal bill of rights in 1789. the concern of the
framers was to create a central government that would work and last, not whether the
government would abuse powers. The Anti-federalists worried that the national government
would encroach on states via taxes and commerce regulation and seized on the absence of the
Bill of Rights as their ammunition. Madison, however, thought that the states posed more of a
threat to rights than did the national government.

An important contemporary constitutional commentator, William Rawle, suggested that many of

the guarantees of the B of R applied to state governments. He says that while the 1st and 7th
amendments are specific to Congress and the federal courts, respectively, that the remaining
amendments had no “narrowing references” and so should be construed broadly.

Justice Marshall resolved this in 1833 with his opinion in Barron v. Baltimore in which he
argued that Barron’s claim [that rerouted streams onto private/commercial property was a
violation of taking property without just compensation] had no part in the fifth amendment
because the 5th amendment applied to the general government not to the states. So this was the
attitude until 1866, when congress passed the 14th amendment.

In the Slaughter-House cases involving New Orleans livestock butcher houses, the Supreme
Court said that the privileges and immunities clause had nothing to do with applying the Bill of
Rights to the states. 5-4 vote, 1873. The Slaughterhouse cases have never been overruled.

Then, Harlan argued in 1884 that the 14th amendment’s guarantee of due process did in fact
encompass the rights and principles of the Bill of rights. But this view was still not adopted as
the Supreme Court continued to argue (majority opinion) that the 14th amendment and the Bill of
Rights are separate. Harlan succeeded in 1897 in making the 14th’s due process clause protects
the right to just compensation … (etc)

1925 – major breakthrough. The court said that the 1st guarantee of free speech applied to state
laws through the due process of the 14th. Gitlow’s case was a beginning.
1927 – Fiske v. Kansas argued that the application of free speech to states was an aberration.
1932 – Powell v. Alabama said that there was a 6th amendment right to have a lawyer in state
death penalty cases.
1937 – justice Cardozo says that only certain parts of the Bill of Rights apply to the states – the
first 8 amendments do not apply to the states.
1947 – Justice Black argued in Adamson v. California’s dissenting opinion that the first 8
amendments DO apply to the states. Frankfurter disagrees and says that total incorporation is not
right.
1960s – Brennan brought the rest of the Bill of Rights together into the 14th as a system of check
and balances.

Not incorporated: 8th amendment’s protection from excessive bail; 5th’s grand jury requirement;
7th’s guarantee of jury trial in civil cases; 2nd’s right to bear arms; 3rd protection from being
forced to quarter soldiers.

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WEEK 2

September 27 lecture:

LECTURES:
Lecture 9/27
-Flag-Salute Cases
-1-June 1940 (1st one); 8 to 1 vote, supreme court upheld PA law excluding school
children who refused to salute the flag.
-persecution of Jehovah’s witnesses b/c of this decision became a national
pastime (1930s anti-Catholic messages)
-2-1943 (2nd case); supreme court did the opposite from the first case in West VA and
reversed the above decision
-shows a praise of diversity and difference vs. the first decision which enforced
national unity…when 2nd case came to the court, national unity was not longer
precarious b/c the bombing of Pearl Harbor had united the country
-Role of the Supreme court after 1937
-Justice Stone heightened judicial scrutiny (civil rights/liberties more in the periphery)
-rationality review (Frankfurter)
-see if legislature was unreasonable…believes that it is presumptuous to say it is
unreasonable
-Justice Jackson- aligned with the “preferred position” of the 1st amendment
-very developed views on what was wrong with the Lockner court (stuck in an
18th century way of thought
-constitution changes with the times
Barnett v. W. VA (1943) was 1st Supreme Court decision to celebrate diversity
-dominant view of America as a melting pot (Jackson says that difference not a bad thing
like Madison (Federalist Papers) thought
-Adamson v California 1947
-to what extend does “due process” limit state power? (esp. in criminal procedure)
-Justice Black went against common
-historical view of incorporation of Bill of Rights into 14th Amendment
-but 4 judges were not willing to take this view (i.e. Frankfurter) b/c it was
too narrow

Lecture 9/29
-Justice Black
-textualism and literalism—protestant beliefs
-Black learned in Sunday School
-natural law (theology and law of Cath. Church—law above man’s laws)
-natural law is in the eye of the beholder (subjective)
-remarkably unprejudiced
-only liberal member of the WC who believed you had to turn to the text
-Korematsu 1944
-Japanese banned from Amer. Citizenship

- 15 -
 -fear after Pearl Harbor
-children citizens
-120,000 Japanese./Japanese Americans
-no action taken against them in Hawaii
-Earl Warren was central force in evacuation and internment of the Japanese
“relocation program”
-built out of racial stereotypes (no evidence of Japanese disloyalty)
-Warren wrote apology in his memoirs for this
-came out in “Superchief” after Warren was dead
-didn’t get what he had done until really late
-Brown v Board of Education
-racial segregation unconstitutional 1943
-overturned Plessy v Fergusson
-unlikely constellation of facts

Korematsu - 1944
Note: Warren was attorney general of California around the time of the events described in
the case, and was involved in the Japanese camp scheme
Opinion: Black
Frankfurter concurs

- 16 -
Roberts, Murphy, Jackson dissent
Black wrote: An American-born Japanese American was convicted of remaining in
California, defying an order to leave his home
All laws curtailing civil rights of certain racial group are immediately suspect, subject to
rigid scrutiny (this is reminiscent of the Carolene Products footnote)
The Congressional act was aimed at espionage and sabotage
Black cites precedent – Conviction of a Japanese for defying a military-ordered racial
curfew was upheld - exclusion from threatened area has clear and definite relationship
with preventing espionage and sabotage
SC won't second guess congress as to imminent danger (Note: Department of Justice, in its
amicus brief, tried to include footnote saying claims of Japanese disloyalty were
exaggerated, but was overruled by military)
“In times of war, the burdens of citizenship are heavier”
korematsu's lawyers argued that he would be convicted both for staying and for leaving
(originally, there was an order not to leave one’s home, and then later, an order to leave
home so as to report at a camp) – Black dismisses this contention, saying the second order
overruled the first
Black says SC would address constitutionality of relocation centers if and when time came
camps aren't just concentration camps - that would be oversimplifying - we did not camp
the Japanese because of racial antagonism, but because of military concerns
“There was evidence of disloyalty on the part of some, the military authorities considered that
the need for action was great, and time was short. We cannot-by availing ourselves of the calm
perspective of hindsight-now say that at that time these actions were unjustified.”

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Frankfurter concurs: government has power to wage war successfully - constitutional war
powers
Roberts dissents: This case amounts to punishment for not submitting to imprisonment in
concentration camp solely because of ancestry, irrespective of loyalty (many of the
dissenters touch on this theme, that all Japanese-Americans had to report to the camps,
without a loyalty test)
Korematsu would not submit himself to imprisonment [in a detention camp], but at the
same time, could not legally either stay at home or leave his home because of the two
existing orders
SC heard case as though it were merely an order to leave, which Korematsu disobeyed -
but case is actually about forcible detention on racial grounds
“Why should we set up a figmentary and artificial situation instead of addressing ourselves
to the actualities of the case?”
Murphy dissents: We ought to defer to military, but this is racist
“At the same time, however, it is essential that there be definite limits to military discretion,
especially where martial law has not been declared.”
“In adjudging the military action taken in light of the then apparent dangers, we must not
erect too high or too meticulous standards; it is necessary only that the action have some
reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But
the exclusion, either temporarily or permanently, of all persons with Japanese blood in
their veins has no such reasonable relation. And that relation is lacking because the
exclusion order necessarily must rely for its reasonableness upon the assumption that all
persons of Japanese ancestry may have a dangerous tendency to commit sabotage and
espionage and to aid our Japanese enemy in other ways.”
“Justification for the exclusion is sought, instead, mainly upon questionable racial and
sociological grounds not ordinarily within the realm of expert military judgment, supplemented
by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence
No adequate reason is given for the failure to treat these Japanese Americans on an individual
basis by holding investigations and hearings to separate the loyal from the disloyal, as was done
in the case of persons of German and Italian ancestry.”
Jackson dissents: A treasonous german would not be treated like Korematsu, under this law - it
targets only japanese
“But even if they were permissible military procedures, I deny that it follows that they are
constitutional.” – the military can act as it sees fit, but the Supreme Court should not
rubberstamp it as constitutional, or it will be giving it an extra stamp of approval and leading to
the legalization of unconstitutional kinds of action

_______________________________________________________________________

Freedom from Fear: The American People in Depression and War

David Kennedy

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Ch. 21: The Cauldron of the Home Front
Korematsu
The continent was not directly threatened, but there were big changes underway
Italians got off free
Japanese on the West Coast didn’t because of widespread fear
Korematsu had gotten plastic surgery to not appear Japanese, but was caught
DOJ and War fought over the “final report” drafted on the internment, which used military
necessity as its justification
Once other departments exposed it as lies, War added a footnote saying they shouldn’t take
judicial notice of that info
DOJ never saw that footnote, and the case was argued on the basis of military necessity – had
they known the truth, Korematsu likely sould have won
In a perverse way, this experience integrated the Japanese second generation
This one event didn’t line up sensibly with the broader American psyche of diversity and
tolerance
Philip Randolph and the South
Myrdal exposed how a lot of that tolerance really wasn’t the case in the South
Philip Randolph – Brootherhood of Sleeping Car Porters – raised some of the earliest civil rights
movement publicity about the treatment of blacks
The conditions at the eve of WWII were not much different than post Civil War
Randolph forced FDR into signing Executive Order 8802 denouncing discrimination by
threatening a huge black protest march
The NAACP grew, and blacks had some economic chances during the war
8802 opened some doors
Workplaces forced some integration
Some of the most severe clashes occurred in military training areas
Blacks tended to be ranked/rated lower/less proficient, so they did the dangerous and unpleasant
work
A lot of the steps forward for blacks were out of forced circumstances

Shelley v. Kraemer-1948
Vinson writes unanimous opinion
Shelley bought land, other property owners sued because there had been an agreement among
them not to sell any land to non-whites – The Missouri Supreme Court invalidated the sale
14th amendment guards against a state barring freedom of property - but was there state action in
this case? if it had been a state statue, even plaintiffs would have agreed it was illegal – but this
was no state statute, rather it was a private agreement:
“…the principle has become firmly embedded in our constitutional law that the action inhibited
by the first section of the Fourteenth Amendment is only such action as may fairly be said to be
that of the States. That Amendment erects no shield against merely private conduct, however
discriminatory or wrongful.”
However, the state enforced this private agreement:

- 19 -
“That the action of state courts and of judicial officers in their official capacities is to be regarded
as action of the State within the meaning of the Fourteenth Amendment, is a proposition which
has long been established by decisions of this Court.”
The undisputed facts disclose that petitioners were willing purchasers of properties upon which
they desired to establish homes. The owners of the properties were willing sellers; and contracts
of sale were accordingly consummated. It is clear that but for the active intervention of the
state courts, supported by the full panoply of state power, petitioners would have been free
to occupy the properties in question without restraint.
Vinson therefore concludes that the state enforced discrimination, hence violating the equal
protection clause:
“These are not cases, as has been suggested, in which the States have merely abstained from
action… these are cases in which the States have made available to such individuals the full
coercive power of government to deny to petitioners, on the grounds of race or color, the
enjoyment of property rights in premises which petitioners are willing and financially able to
acquire and which the grantors are willing to sell.”
Plaintiffs argued that there was no violation of equal protection, since whites could suffer the
same mistreatment, theoretically – but Vinson dismisses this claim

Mr. Justice REED, Mr. Justice JACKSON, and Mr. Justice RUTLEDGE took no part in the
consideration or decision of [Shelley]

Plessy –1896
Brown wrote court’s opinion
Harlan (old Harlan, the grandfather) dissents
Plessy was an octoroon (1/8 black) - sat in railway seat for whites

Brown writes: this does not violate 13th amendment, as claimed, which is only about slavery
Need to look at whether it violates 14th amendment
The Court cites examples of laws which have always been upheld, even though they separate the
races:
“Laws permitting, and even requiring, their separation, in places where they are liable to be
brought into contact, do not necessarily imply the inferiority of either race to the other, and have
been generally, if not universally, recognized as within the competency of the state legislatures in
the exercise of their police power”
“The most common instance of this is connected with the establishment of separate schools for
white and colored children, which have been held to be a valid exercise of the legislative power
even by courts of states where the political rights of the colored race have been longest and most
earnestly enforced.”
“Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere
with the freedom of contract, and yet have been universally recognized as within the police
power of the state.”
Some argue that the state could just as well segregate people by hair color – but the court’s
response is that a state can only enact that which is reasonable

- 20 -
What follows is some of the ridiculous argumentation in the Plessy decision:
“We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that
the enforced separation of the two races stamps the colored race with a badge of inferiority. If
this be so, it is not by reason of anything found in the act, but solely because the colored
race chooses to put that construction upon it. The argument necessarily assumes that if, as has
been more than once the case, and is not unlikely to be so again, the colored race should become
the dominant power in the state legislature, and should enact a law in precisely similar terms, it
would thereby relegate the white race to an inferior position. We imagine that the white race, at
least, would not acquiesce in this assumption. The argument also assumes that social prejudices
may be overcome by legislation, and that equal rights cannot be secured to the negro except by
an enforced commingling of the two races. We cannot accept this proposition. If the two races
are to meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits, and a voluntary consent of individuals. As was said by the
court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be
accomplished nor promoted by laws which conflict with the general sentiment of the community
upon whom they are designed to operate. When the government, therefore, has secured to each
of its citizens equal rights before the law, and equal opportunities for improvement and progress,
it has accomplished the end for which it was organized, and performed all of the functions
respecting social advantages with which it is endowed.' Legislation is powerless to eradicate
racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do
so can only result in accentuating the difficulties of the present situation. If the civil and political
rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race
be inferior to the other socially, the constitution of the United States cannot put them upon the
same plane. This last sentence sounds like the supreme court pleading impotence, something
the Warren Court never did”
Harlan dissents: no exception in the railway law is made, say, for a white man’s black servant,
who wants to sit with him
Harlan cuts through some of the bs:
“It was said… that the statute does not discriminate against either race, but prescribes a rule
applicable alike to white and colored citizens. But this argument does not meet the difficulty.
Every one knows that the statute in question had its origin in the purpose, not so much to
exclude white persons from railroad cars occupied by blacks, as to exclude colored people
from coaches occupied by or assigned to white persons… No one would be so wanting in
candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it
interferes with the personal freedom of citizens… If a white man and a black man choose to
occupy the same public conveyance on a public highway, it is their right to do so; and no
government, proceeding alone on grounds of race, can prevent it without infringing the personal
liberty of each.”
“But it seems that we have yet, in some of the states, a dominant race,-a superior class of
citizens,-which assumes to regulate the enjoyment of civil rights, common to all citizens, upon
the basis of race.”
Yet Harlan, despite being relatively racially liberal, still has outdated racial notions (ironic) –
still, he has high constitutional ideals:

- 21 -
“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in
achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all
time, if it remains true to its great heritage, and holds fast to the principles of constitutional
liberty. But in view of the constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-
blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all
citizens are equal before the law”
“In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as
the decision made by this tribunal in the Dred Scott Case.”

Louis D. Brandeis: Justice for the People

Philippa Strum
Ch 8: The Brandeis Brief
Muller v. Oregon (1908)
Relied on little legal argument and a lot of data
Wanted to fight against the Lochner decision
Features of Lochner:
1. the lawyers and judge had not been properly informed about the broader argument
2. judges had reversed their traditional policy of assuming that legislation was constitutional
unless proven otherwise
3. there hadn’t been a clear demonstration between the legislation and public health
Started a movement towards the concept of law as living
Sociological jurisprudence
Changed the general direction and manner in which law is argued
He had good intents, but the nature of the law which he got upheld was somewhat backward
The debate over the legitimacy of this kind of legal reasoning still goes on today

Brown – 1954
Warren writes for unanimous court
Court summary:
Segregation of white and Negro children in the public schools of a State solely on the basis of
race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the
equal protection of the laws guaranteed by the Fourteenth Amendment - even though the
physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp.
486-496.
(a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on
public education. Pp. 489-490.
(b) The question presented in these cases must be determined, not on the basis of
conditions existing when the Fourteenth Amendment was adopted, but in the light of the
full development of public education and its present place in American life throughout
the Nation. Pp. 492-493.
(c) Where a State has undertaken to provide an opportunity for an education in its public
schools, such an opportunity is a right which must be made available to all on equal
terms. P. 493.

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 (d) Segregation of children in public schools solely on the basis of race deprives children
of the minority group of equal educational opportunities, even though the physical
facilities and other "tangible" factors may be equal. Pp. 493-494.
(e) The "separate but equal" doctrine adopted in Plessy v. Ferguson, 163 U.S. 537 , has
no place in the field of public education. P. 495. [347 U.S. 483, 484]
(f) The cases are restored to the docket for further argument on specified questions
relating to the forms of the decrees. Pp. 495-496.
Warren writes:
A historical analysis is inconclusive as to intent of framers of 14th amendment – the past is not
clear, and so we needn’t look to it – idea of a living constitution
“In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was
adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public
education in the light of its full development and its present place in American life throughout
the Nation.”
Several cases have already established that segregated education is unconstitutional, but these
were in graduate schools (e.g. Sweatt, Mclaurin)
“Education is perhaps the most important function of state and local governments.”
“We come then to the question presented: Does segregation of children in public schools solely
on the basis of race, even though the physical facilities and other "tangible" factors may be equal,
deprive the children of the minority group of equal educational opportunities? We believe that it
does. “
Warren cites various intangible qualities that make it obvious that separate is not equal – note
how he cites Myrdal
“We conclude that in the field of public education the doctrine of "separate but equal" has no
place. Separate educational facilities are inherently unequal”
BOLLING v. SHARPE, 347 U.S. 497 (1954)
Court Summary (this is a companion case to Brown, except for the national government i.e.
Washington D.C.):
Racial segregation in the public schools of the District of Columbia is a denial to Negro children
of the due process of law guaranteed by the Fifth Amendment. Pp. 498-500.
(a) Though the Fifth Amendment does not contain an equal protection clause, as does the
Fourteenth Amendment which applies only to the States, the concepts of equal protection
and due process are not mutually exclusive. P. 499.
(b) Discrimination may be so unjustifiable as to be violative of due process. P. 499.
(c) Segregation in public education is not reasonably related to any proper governmental
objective, and thus it imposes on Negro children of the District of Columbia a burden that
constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
Pp. 499-500.
(d) In view of this Court's decision in Brown v. Board of Education, ante, p. 483, that the
Constitution prohibits the States from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a lesser duty on the
Federal Government. P. 500.

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 (e) The case is restored to the docket for further argument on specified questions relating
to the form of the decree. P. 500.
Warren wrote:
“Classifications based solely upon race must be scrutinized with particular care see
CAROLENE Products FOOTNOTE)”

Brown II:
essentially, Brown II gives task of implementing the Brown decision to local school boards
dealing with local problems, and allows local courts to supervise the process in terms of its
legal aspects.
Process is to occur with all deliberate speed, but with flexibility for the different problems
in different locales. Courts determine whether there has been a good faith effort by the
school board

COURSEPACK READING pgs142-170

Schwartz, Super Chief pgs 142-163

Vinson’s Court:
- If Vinson has presided over the court, Brown’s decision would have been divided, with at
least four dissents from judges Vinson, Reed, Jackson, and Clark.
- Other Supreme Court(SC) Justices looked down upon Vinson as intellectually inferior
and deficient as a judge. He was considered to be a pygmy morally and mentally.
- During Vinson’s court, antipathy between Jackson and Frankfurter on one side and Black
and Douglas on the other was intense.
- Constitutional cliché existed that 14th Amendment does not secure equality for blacks.
o Racial Segregation alone was not held unconstitutional.
o Jim Crow replaced equal protection and legally enforced segregation.
- Vinson would not overrule Plessy vs. Ferguson based on a fact that segregation has been
a long established acceptance and if Congress could not end segregation, then how could
SC act without Congressional action.
o Vinson was leaning towards affirming lower-court decisions.
- Despite Vinson, majority of the court wanted to strike down segregation-
Frankfurter(although torn), Black, Douglas, Burton, and Minton- were for ending
segregation.
o Southern members of the Court(Ct), aside from black wanted to upheld the
segregation and would yield dissent from any overruling of the separate-but-
equal doctrine.
- Frankfurter was concerned with fragmented decision of the court. He wanted unanimous
decision.
o Clearly wanted to end segregation in DC schools.
o But he could not say whether the frames of the amendment meant to abolish
segregation.
o Wanted to vote against segregation, but was torn because of rule of stare-decisis
(previous court ruling on the same/similar issue)

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 - 1952 term: no vote has been taken
- 1953 term: May 29th Court asks 5 questions and demands answers from counselors.
o The reason behind it: stall time to think more of the case till next term.
- SCJ(Supreme Court Justice) Black wanted to keep the secrecy of Court’s decision
o Asked his son in the will to burn all of the Court papers.
o Also invited US attorney General to take part in the oral reargument.
- July 1953: Gov’t takes the first action to acknowledge that it is ready to take up on courts
invitation.
- Vinson postponed the reagrument until Dec 7th, but died before that.
Warren Court
- Warren, just like Frankfurter wanted a unanimous decision for Brown case.
- Tactic 1: always was trying to bring the discussion down to the core and wanted to avoid
decision by technical requirements.
- Tactic 2: proposed to discuss the segregation cases without taking any votes, so that the
split court would not polarize itself and would have a bigger chance of arriving at a
decision unanimously.
- Bickel’s Memorandom:
o Frankfurter gave a task to one of his clerks, Bickel to research the 14th amendment
framers’ attitude toward segregation.
o Bickel’s memo came to a conclusion that their views are inconclusive, therefore
the 39th Congress did not indicate the intent to have it either to outlaw or not
outlaw segregation in public schools.
o Bickel’s memo meant that the argument that framers of 14th amendment wanted
segregation in public schools was flawed.
- Warren’s opinion: If the court chooses to sustain segregation, then it must admit that
black race is inferior to the white race.
o Wanted to abolish the practice of segregation, but in a tolerant way.
o Was concerned with moral issue of racial inferiority, which put SCJ that were in
favor of keeping Plessy’s rule on the defense.
o Warren stated that “segregation was not longer justifiable in this day and age”
- SCJ Jackson and Clark suggested that they might be willing to support Chief
Justice(CJ)’s new position.
o Clark said that he will agree to abolish segregation if it is done carefully.
o Jackson said that if the court would find a “judicial basis for a congenial political
conclusion”, then “ as a political decision”, he will overrule Plessy’s rule.
- Reed alone supported Plessy’s rule.
- Warren’s Tactic 3: have lunches with judges that were not 100% sure on which side they
are and to convince them to side with the majority.
- Tactic 4: focus the discussion on remedy, not the decision. Discussion over decision
would polarize the justices, while discussion over remedy would bring them together in a
unanimous decision.
- SCJ Black- wanted the court to do as little as possible in enforcement of the rule.
- SCJ Reed- wanted the court to have only general enforcement principles.
- Tactic 5: please the justices that were not sure
o To please Frankfurter: proposed delegation of decree power
o To please Southerners: proposed flexibility

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 - SCJ Jackson wanted to write a concurring opinion, but had a heart stroke and did not
write it since he was in hospital.
- Rumors persist that Frankfurter wrote a concurring opinion, although there is no proof
and he wanted a unanimous decision without dissents or concurring opinions.
- The decision was kept in secrecy and SCJ asked Reed to think of what is best for the
country as a whole, so Reed switched to the majority side# unanimous decision.
- There were minor changes to the draft that Warren wrote. SCJ made some minor
technical text phrasing changes, nothing major.
o Drafts of the opinion was delivered only to the justices, not the clerks due to
secrecy.
- There was agreement that the opinion should be short & written in understandable
English.
- There was agreement that there would be two opinions to the segregation cases: one was
directed at the segregation within the states, and the other one targeted segregation in DC
district- Bolling vs. Sharpe.
o Why? Segregation in the states- 14th Amendment; Segregation in public schools
in DC district- 5th Amendment.
- Monday, May 17th, 1954 at about 12:50 the decision was announced:
o Main question of the case: Does segregation of children in public schools solely
on the basis of race, even though the physical facilities and other “tangible
factors” may be equal deprive the children of the minory group of equal
e3ducational opportunities?
! Court’s Answer/Opinion: “We believe that it does”
• We conclude unanimously, that in the field of public education, the
doctrine of “separate but equal” has no place. Separate educational
facilities are inherently unequal.
- The opinion did not decree any relief.
- During reargument: Counsel for the South states that South would not conform to send
our while children to black schools.
o Warren gets angry at it- SC the law of the land.
- Final word of the Court- desegregate schools in the South “with all deliberate speed”

Cooper v. Aaron (1958) pgs 164-170

• Case involved the actions of the govt and legislature of Arkansas to prevent students to enter white school
on b/c they say they are not bound by Brown (which said that segregation violates the 14th Amendment)
• The school Board DID prepare to follow ruling # 9 black children selected to enter Central HS, BUT the
Gov of Arkansas would not let them enter; he dispatched Arkansas National Guard not letting blacks in
$ This suggested that states could completely nullify the Fed law and disobey the District Court
(continued sending troops for the next 3 weeks)
$ Forced the Fed govt to send regular army troops (then Fed Natnl Guard) for whole year to
actually get the kids inside the school
• School Board in Feb filed petition to postpone their program of desegregation b/c of the extreme hostility
which had been sparked by the actions of the Gov and so it made schooling hard with black kids there.
$ Justices of SC find it appalling that state’s actions are cause of these education problems – all b/c
the state thinks it can avoid the decision of Brown

- 26 -
 $ Thus, ruling that a postponed is not ok # the School Board are still agents of the state, and law
and order must not be sacrificed by depriving the Negro of his rights
• Constitution is the law of the land, and no state legislator can go against the Constitution without violating
his undertaking to support it (thus states cannot nullify a federal court order which stems from
constitution)
• Justice Frankfurter’s agreement: Little Rock plan was good; aim was to help community slowly
accommodate to Brown through small # of kids entering # the states interfered with this
$ Asked to hold that this illegal interference, and the public disorder it caused, is grounds for
undoing the state board’s plan # this would be like endorsing lawlessness, loosing fabric of
society

Kluger: 45-50
# 13th Amend-- nationalized right to freedom, with Congress as enforcer to protect the “civil
rights and immunities“ of ppl (mainly blacks): # 1866 Con. Extended Freedmen’s Bureau Bill:
protection carried out by federal bureau and passed Civil Rights Act: protection by the fed
courts.
# both acts aimed at destroying the Black Codes and passed over Pres Johnson‘s veto.#
Rights given to the new free ppl: right to make and enforce contracts, right to buy, sell, and own
real and personal property, etc# to promote idea that liberty was inseparable from equality.
# 13th amend also said that any statute that wasn’t equal to all was encroaching on the liberty of
US society. # Opponents of the 13th said that it was giving the fed gov too much power.
# Thaddeus Stevens and rest of ppl wanting the Radical Reconstruction thought that it was
necessary to put the newly won rights of blacks beyond the power of congressional majorities#
wanted another amendment with more explicit language# 1866 proposed 14th amend.: ppl born
in US or naturalized get privileges and immunities, cant be deprived life, liberty, or property
without due process of law, and equal protection of the laws. # also had some punitive lines
vs. the South (like, debts incurred by south in civil war not going to be honored by american gov,
ppl who were part of confederate gov couldn’t hold office, etc).
# Pres Johnson didn’t approve of the amend, and all southern states but Tennessee rejected it.
But republicans got majority in congress so were able to pass it.
# New Congress passed the first reconstruction act, the 14th amend, and gave blacks the right to
vote. # what most angered the south was right to vote # it was also convenient for Eastern
business interest that the South wouldn’t be too well so that rural-agrarian contract b/w south &
west wouldnt dominate natn’l policies as it had done before the war.
# North reluctant to give vote to blacks elsewhere in US, so you could see it had been a punitive
measure against the South.
# 15th Amendment: gave ppl right to vote regardless of race, color, or previous condition of
servitude.# Angered the South# KKK came out but Congress passed bills vs. them and
allowed the army to fight them and oversee the polling process in the south.
# Civil Rights Act of 1875 said that ppl regardless of race, etc, were guaranteed full and equal
enjoyment of accommodations.
# in page 50, it just says that after land, the black ppl wanted education.
Page 54-61
# After that (above) , gov focused on econ. Matters and left civil rights to the Court-- felt like
they had done all that could be done for the blacks and the rest was up to them.
# then came the Slaughterhouse Cases in 1873 # time when almost ! nation still under

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military occupation, industry and railroads collection wealth and power, the electorate was
growing, so had lots of clashing econ, social, and political interests. # Samuel F. Miller was
dominant Court figure, a grass roots liberal and dedicated abolitionist. # so the Cases #
Lousiana granted 25 yr franchise to some butcher company b/c of “heath considerations”# got
sued by other companies saying other butchers had been deprived of their right to earn a living
(so privileges and immunities from 14th).# Miller, worried that Congress was getting too much
power and could be reckless with it, viewed 14th in a very restrictive light#said that the amend
says that there are two citizenships: of the state and of US (nowhere else had we heard of this
dual citizenship, has written the amend to protect some rights from state encroachment)# He
said that 14th didn’t transfer protection of civil rights from the state to the fed gov and so said that
the licensing of slaughter houses in LA had nothing to do with men’s rights under the 14th
amend. (never said what those rights were, though).
# Morrison R. Waite became Chief Justice later# believed in states’ rights and not " about
civil rights, really. He was a meanie.
# South: ppl not happy b/c blacks allowed to vote at same time the rich and powerful were
being denied this right. # after 15th amend and shift of Con. Attention to econ matters, South
began reelection its old racist men. # 1877 Con. Didn’t require oath of allegiance to Union for
southern officials and gave them full political rights# Dem. Party came alive again. # House of
Reps soon bcame more Dem.# and the rights that had been granted to the blacks under radical
reconstruction were no longer honored.# violence to not let em vote.
# US v. Reese: qualified black man not allowed to vote in Kentucky even when had money to
pay the poll tax# not allowed under 15th amend.# Court said it was okay# Waite said 15th
didn’t confer on blacks d right to vote, it just said states cant deny ppl right to vote b/c of their
color. # so basically, black ppl discriminated against had to show it was bc of their race/color to
get justice.
#US v. Cruikshank: whites broke up a black political rally in LA, and two of whites indicted
under fed acts enforcing 15th amend.# Court said that no, this was not permissible, b/c the
indictment vs. em didn’t charge the rioters of having acted bc of the black’s race or color. # 14th
amend, further, only prevented states from depriving citizens of stuff, not citizens (says nothing
of citizens vs. citizens).
# both cases totally ignored the amendments, b/c in both instances a state had failed to protect
the rights of its citizens, yet the Court did nothing about it.
# 1876 Pres Election # Compromise of 1876 # to win, Hayes ® needed to win South
Carolina, Florida, and LA.# they agreed that they would give him those states as long as he got
rid of the troops still in Southern States# Hayes then won and the black man began to be
disenfranchised from that moment on# had poll taxes, stuffing of Dem ballot boxes,
Gerrymandering, burdens to illiterate voters (some nasty acts in SC and VA).
Pages 64-82
# Most justices in 1883 were Republicans and seemed to be okay with Civil Rights, esp Justice
Bradley, who dissented in the Slaughterhouse Cases.
# Civil Rights Cases 1883 # legality of public accommodations of 1875 act# in South, ppl
decided whom they would serve. # in each case, a suit was brought on behalf of a black person,
and in each case, the statute/act carried no weight, said Bradley, and exceeded authority given to
Con. Under 14th. # 8 majority said this wasn’t discrimination by the state, but by individuals
(you gotta love these ppl, huh?).# said that excluded blacks had suffered private wrongs to their
“social rights,” not the invasion of their political or civil rights by the state/under state authority.

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# said that there’s a time when the black ppl have to stop being the law’s favorites. # Harlan is
the only one who dissented.# said that if fed. Gov cant protect, and the states are granted these
rights, then the ppl wont receive adequate protection.
# There fell hard econ. Times in 1873 that hurt the South and helped the Northeast take
advantage of it.# would go into the south and buy lands and make ppl work under horrible
conditions.# the north was attracted to south by cheap energy, tractable labor, and lotsa natual
resources.# burden of bad econ. Fell on small farmers, black & white.# they turned on the
Redeemers (the ones who were hired by north to oversee things)# because they were both so
screwed up, they started joining, the poor small farmers, both black and white -- joined to back
the populists and to demand gov stop helping business.
# The whites under populist then wanted the black vote, and when saw this, the racists whites
wanted black vote too# so they started fighting. # but eventually mean whites managed to
oppress the blacks and the poor whites got scared so they turned on the blacks too.
# Mississippi led the way and had all kinds of bad things to disenfranchise blacks: poll taxes,
ect, then SC was bad too, and LA instituted the granddaddy clause (if your grandad or dad could
vote in jan 1867, you were guaranteed right to vote, but blacks suffrage granted later, so there).
# 1898 # Williams v. Mississippi. ! those codes (above) do not, on their face, discriminate
b/w white and Negroes, and don’t amount to denial of equal protection under the law# didn’t
show act was evil, but only that evil was possible under it.
# The Civil War Amends basically died when the fed troops left the South. # lotsa (3000)
lynching occurred w/in 20yrs after the Civil Rights Cases.# 1892, segregation laws passed by at
least 9 states rquring railroads to have separate cars for blacks and ws.# here was state action
though!!! Eureka.
# 1895 # Atlanta was the most advanced city in South and had the Atlanta Cotton States and
International Exposition # invited Booker T. Washington to talk because they wanted to look
good # he “spoke the words of accommodation that amounted to surrender”# apologized for
the overreaching of his race in trying to start at the top, then told his race to be realistic, told the
whites to be nice to blacks because blacks would be good to em, and said that blacks were ready
to die for whites.# called for amity b/w both groups.# bcame new black hero of South, for
both races.
# @ same time, leaders believed in survival of the fittest, forgotten about the wounds of the
war, and there was alliance of businessmen from both North and South.
# Fuller was Chief Justice, was a Dem.# not problack. # says gov shouldn’t support the ppl, it
oughta be the other way# used 14th to help corporations.
# 1895:# conservatism like hell in the US# SC said national income tax unconstitutional,
ignored violations of Sherman Antitrust Act. Etc.
# there were laws now, requiring railroad companies to have separate cars for white and blacks
(remember?)# in 1877 (Hall v. DeCuir) SuCourt had declared unconst a LA law that forbid
public carriers from segregating its passengers, b/c invaded Con’s right to regulate interstate
commerce. (even though law only regulated state railroads) # in 1888 when Mississ. Passes the
opposite law, SuCourt upheld it (it was intrastate, it claimed).
# Plessy v. Ferguson ! from LA# in LA it was said that having been kicked out of the white
train wasn’t unconst. B/c segregation didn’t violate 14th. # 1896 # case was: Plessy had been
denied his privileges, immunities, and equal protection of law under 14th amend, but SuCo
(Justice Brown wrote it) thought that it wasn’t clear which rights the 14th amend. Covered#
Brown said that 14th amend was meant to “enforce the absolute equality of the two races b4 the

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law, but in the nature of things it could not have been intended to abolish distinctions based upon
color, or to enforce social equality.” # but nowhere have we found justification for the words
said beginning with, “… it could not have been…”
# also said that segregation didn’t necessarily imply inferiority of either race to the
other# used case Robert vs. city of Boston as precedent to say that even separate schools were
okay b/c they were for the good of both races# but this case took place before the civil war, and
segregated schools had been prohibited in Boston six years after the case. # other cases used as
precedent also had minimal relation to Plessy (one, Dawson v. Lee was about whether tax
revenues from whites were only for white schools and money from blacks only for blacks, and
the court found that to be unconstitutional b/c would create inferiority.). # even said that the
SuCo had drawn distinctions b/w social and political rights # only case were the Civil Rights
Cases, and those only talked about how Fed Gov couldn’t intervene b/c it wasn’t the state, but
ppl, doing things# Also used as precedent cases that dealt with the Fed Gov ability to intervene
given interstate commerce issues. à but Plessy wasn’t about this à dealt with legitimacy of the
power each state had in classifying citizens by race and separating them by force while riding
trains w/in their states. à most cases he used, then , were irrelevant or dealt with totally different
parts of the Bill of Rights and Civil War Amends.
à Yick Wo v. Hopkins also used as precedent. à CA turned down a law that said laundry
businesses couldn’t be conducted in wooden buildings (only Chinese ppl did this)à turned down
because the law was done with an “evil eye and an unequal hand”à Brown said that Plessy was
different, not done maliciously but with the intent of maintaining public peace and good order
(no one had claimed this, though).à also implied that law wasn’t unconst. Because many other
states were also practicing segregationà law was ok bc it was in keeping with the “established
usages, customs, and traditions of the ppl”. à so basically, degradation of blacks was custom.
à declared that separate but equal were const and ended by stating that if blacks felt
inferior, it was because they chose to feel that way, not because the law meant for that
à Justice Harlan was the only dissenterà you arent really trying to give them equal
accommodation, you’re just trying to keep blacks out. Everyone knows this. Why don’t we then
separate roman catholics from protestants? Or native and naturalized citizens? Also said,
regarding the reasonableness of a statute as basis for judging its legality, that the const. Is color
blind, in respect to civil rights, all are equal b4 the law, and there is in the US no superior,
dominant, ruling class of citizens.à Plessy gonna be used for justifying lots of discriminatory
things.

Kluger p. 105-106, 123-127, 185-194, 201-218

Howard University is established as a school exclusively for African American student
and is perhaps the only school in the 1920’s and 30’s that accepts African Americans. As Dean,
Mordecai Johnson transforms Howard University from a collection of disorganized graduate
schools to a top rate university. He hires Charles Houston as Dean of the law school and Houston
aims to make the law school capable of training the next generations of African American
attorneys, like Thurgood Marshall, to continue the fight for civil rights.
The NAACP receives a $100,000 grant from the Garland foundation for legal action
advocating equality in racially separate schools in States having the most flagrantly
discriminated school budget allocation. Nathan Margold, nominated by Houston to determine a
strategy for the grant fund, decides that the money would be best spent, not to directly challenge
the constitutionally of segregation, but to challenge the legality of segregation as it was currently

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practiced; that is, the blatant inequality in education for blacks and whites. Houston, believing
that the attack should begin in an area having the most effect and least backlash, decides to begin
implementation of the strategy by attacking graduate school education, and thereafter graduate
and secondary schools.
One of the cases of this plan, Murray v. Maryland, involved the admittance of Gaines
Murray, an African American, to the University of Maryland Law School. At the time, the
University of Maryland did not accept African American students, except at its fifth rate Princess
Anne Academy. Accordingly, Murray, although meeting all the qualifications, was rejected and
advised to use the scholarship setup by Maryland for blacks to attend an out of state law school,
such as Howard. Houston brings suit in Maryland state court and wins, allowing Murray to
enroll.

Kluger p. 238-271
The era of super-government and the onset of the welfare state were accomplished facts by the
end of World War II. So much new power was rich with possibilities for abuse, and as the
Forties unfolded, the first fumes of totalitarianism were in the air. The preservation of civil
liberties, these freedoms assured under the bill of rights and the 14th amendment, sometimes
became downright inconvenient to a government that felt justified in minimizing opposition.
By 1943, Stone’s “preferred position” doctrine seemed to have commended itself to a majority of
the court, which now agreed with his earlier dissent in the compulsory flag-salute decision and,
when another case on the question arose, overturned the Pennsylvania law.
The line between governmental abuse of civil liberties and governmental toleration of social
injustice grew increasingly hard to define in the view of the Roosevelt court’s four judicial
activists: Black, Douglass, Murphy, and Rutledge.
Ranged against Roosevelt’s activists was the trio dedicated to judicial restraint. These were
Frankfurter, Jackson, and Reed. The holdover justices from the pre-Roosevelt court – Stone and
Roberts – veered to the left and right wings respectively, and the result during the first half of the
forties was a court often narrowly divided, especially in civil liberties cases. Later on Truman
chose Fred Vinson to be the thirteenth Chief Justice of the US Supreme Court. Jackson was
furious. Whatever the truth behind the rifts, Fred Vinson was inheriting a fratricidal court. For all
his charm, gentle humor, and long practiced skill at smoothing ruffled feathers, the job of
pacifying and unifying the Supreme Court was beyond Fred Vinson as he took the Chief’s chair
at the beginning of the October 1946 term. The justices whose conflicting views Vinson had
hoped to reconcile were anything but sheep. They were independent personalities with deep
convictions, and at least four of them – Black, Douglas, Frankfurter, and Jackson – had markedly
greater intellectual ability than their new Chief. Not surprisingly, then, the court grew more, not
less fractured.

The crying need among African Americans as the war ended was not jobs but housing. The
effort intensified after the war. Test cases were soon launched before the state and local courts by
NAACP branch lawyers in Detroit, St. Louis, and Chicago, among other cities, but the model of
aggressive litigation was provided by Charles Houston, who brought the case of James Hurd
against Frederic and Lena Hodge, white Washington homeowners who wished to keep colored
people from moving to the block. Houston used every maneuver he knew. Nothing helped.
Houston lost Hurd v. Hodge in the District Court in 1946. The following spring he would lose it

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before the court of appeals. Houston appealed Hurd v. Hodge over the summer. On the last
Monday of the term, the Supreme Court agreed to hear the case the following fall.
While the President’s Committee on Civil Rights was going about its deliberations, Thurgood
Marshall, Charles Houston, and the other black lawyers involved were drawing up their appeal
briefs for the Supreme Court arguments in the covenant cases that collectively would come to be
called Shelley v. Kraemer. In the covenant cases the Chief Justice wrote the opinion of the Court
in 1948. The six sitting Justices all agreed – in itself a rare enough event, but particularly
noteworthy in view of the Court’s prior record of avoidance on this question. “These are not
cases, as had been suggested, in which the states have merely abstained from action, leaving
private individuals free to impose such discriminations as they see fit,” said Vinson. “Rather,
these are cases in which the states have made available to such individuals the full coercive
power of government to deny to petitioners, on the grounds of race, or color, the enjoyment of
property rights in premises which petitioners are willing and able to acquire and which the
grantors are willing to sell.”

In 1944, Gunnar Myrdal did what no other white American had ever done – to document,
analyze, and excoriate the nation’s continuing mistreatment and evident hatred of its African
Americans. An American Dilemma was a milestone in sociology, cultural anthropology, and two
fisted investigative reporting once known as muckraking. In 1945, the South was spending twice
as much to educate each white child as it was per black child. It was investing four times as
much in white school plants, paying white teachers salaries 30 percent higher, and virtually
ignoring the critical logistics of transporting rural Negroes to their schoolhouses. About one-
fourth of the entire African American population was functionally illiterate in 1946. However
easy Gunnar Myrdal thought it was to prove in the courtroom that blacks were educationally
disadvantaged; it was another thing for Thurgood Marshall to convert statistics into a judicial
mandate. He had to begin in 1946 by recovering ground that had been lost during the war years.
In the case of Sweatt v Painter, the defendant was refused admission to University of Texas at
Austin Law School because of his being black. Both the district court and the court of appeals
ruled against Sweatt. It would take the better part of three years before Sweatt v Painter crawled
up the judicial ladder to the Supreme Court of the US.

Kluger p. 274-283
In Sweatt, all the statistical support necessary for such a holding was now being brought to the
Court’s attention. Marshall’s first job, he felt, was to win on any ground that he could, and
winning within the confines of the Plessy doctrine was the safest way. But Marshall had been in
the fight too long not to see that he could spend the rest of his life trying to prove that white
school boards in a thousand counties were failing to provide and equal-but-separate education for
their resident Negroes. Thus, in its Sweatt brief the NAACP Legal Defense Fund took its hardest
swipe yet at Plessy.
Only after the legal theory had been extensively presented did the law professors dwell on the
specifics of Sweatt’s case and assert that “in countless ways separate legal education cannot be
equal legal education.” Not the least of the reasons was that “By sending Sweatt to a raw, new
law school without alumni or prestige, Texas deprives him of economic opportunity which its
white students have.” Texas fought back with a tough minded brief that made maximum use of
its initial advantage: the law as pronounced by the court in the past was on its side. In the battle
of the amicus briefs, Texas appeared to enjoy the advantage of support by eleven sovereign states

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while Sweatt’s principal allies were 187 law professors, who in effect were telling the Supreme
Court to recant for past errors. For the first time arguments were made stating the Plessy was
wrong and that the court should overrule it.

Kluger p. 287-294
Nearly a year would pass between the Supreme Court’s decision in Sweatt and McLaurin and the
opening of the showdown round of the segregation fight in a federal courtroom in Charkeston,
South Carolina. Besides Texas and LSU, law schools were desegregated now at the University of
Virginia in a decision by a three-judge District Court and at the University of North Carolina in a
decision by the US Court of appeals for the fourth circuit. But the Red Sea was not about to part.
The handful of graduate-school victories affected only a fraction of the black elite, and new ones
were slow in coming as the state courts declined to fall in line automatically behind the Sweatt
and the McLaurin decisions, which on their face did nothing to tamper with the separate but
equal principle of Plessy.
Out in Missouri, the state Supreme Court took Plessy even further. It held that a black St. Louis
high-school student was entitled to be given the same course in aeromechanics offered at the
white high school – and if the course were not given at his school, he could go to the white one
for it. The equality principle was now beyond argument, even as the legitimacy of segregation
itself seemed to be. The issue extended beyond schools as well. The McLaurin decision seemed a
sharp blade for chopping away at every form of Jim Crow practice. McLaurin, if applied beyond
the classroom, seemed to say that in any area of public life, African Americans had to be offered
separate facilities every bit as good as the white ones or they had to be admitted without
restrictions to racially combined facilities. Either separate buses for blacks or fully integrated
biracial buses.
In his heart, Thurgood Marshall knew the fight against Plessy ought to be pressed to the limit.
Segregation was an unmitigated evil, and no black man anywhere in America was free of its scar
so long as the Supreme Court tolerated it. But was the Court now ready to meet the Legal
Defense Fund’s direct challenge of segregation per se as unconstitutional.

Kluger p. 300-305
It was a month after the night of the attack on his residence that the NAACP came into Judge
Waring’s courtroom to argue the first public-school segregation case. Thurgood Marshall knew
he had a friend on the bench and had shaped his pleadings with that friendliness in mind. The
judge knew all about life in Clarendon County. To end “doghouse education” in Clarendon
County, Thurgood Marshall had a choice to make. He could bring the case of Harry Briggs and
the other harassed blacks of Clarendon County before Waring in the US District Court on the
ground that R.W. Elliot, the sawmill owner who was chairman of the Board of Trustees of
School District No. 22, and his adamantly white-supremacist associates had failed to provide
adequate school facilities for the colored pupils within their jurisdiction. The evidence was
overwhelming that Clarendon’s blacks had been denied equal protection of the law as required
by the Plessy doctrine. Plessy, even honored to the letter, would no longer do. Segregation itself
was the target now.
Thus, if Marshall were to draw up the Briggs case pleadings to challenge the very practice pf
segregation in South Carolina and not merely the gross inequities in how it was practiced in
Clarendon County, he would probably have to come before a three-judge district court, of whom
the black mans friend, J. Waties Waring, would be but one member. It did not seem plausible to

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Marshall that the judge would have the judicial temerity to overrule Plessy given the stance the
Supreme Court had taken on the issue. The case was also not the best one to use as a test case.
Marshall would be coming before the justices not merely to ask that separate schools in
Clarendon County be declared unlawful. He would be asking not that a relatively few negroes be
admitted to the all white-schools of a predominantly white community, but that the white
children be mingled among the predominantly black enrollment in a county that was more than
70 percent African American. It would have been hard to find a more perilous test case.

Kluger p. 315-321
1951 would become a pivotal moment in Kenneth Clark’s career. A thirty-seven year old social
psychologist who was then an assistant professor at City College of New York, Clark would
become the best-known and most highly regarded black social scientist in the nation. Clark
carried around a box with some dolls. He and his wife, Mamie, who was also a psychologist, had
used the dolls for several years in developing a series of projective tests that disclosed how early
in life black children came to understand that success, security, beauty, and status all wear a
white skin in America. It was just such findings in clinical psychology that the Legal Defense
Fund needed as it prepared for the rescheduled trial of Briggs v. Elliot, directed now at
overturning segregation itself and not merely winning equal schools for the black children of
Clarendon County. Some of the evidence the Clark’s found showed that segregated black
children in Washington seemed a good deal more aware of their color than Negro children in the
racially mixed schools of New York. What the effects of that awareness were, the Clarks were
not ready to conclude. Through it all, their researches continued. To pinpoint the nature and
development of the damage that racism caused, the Clarks worked out a pair of test techniques.
One was the doll test, and the other test they used was a coloring test that produced equally
disturbing results. What was surprising of their findings, said Clark, was the degree to which the
children suffered from self-rejection, with its truncating effect on their personalities, and the
earliness of the corrosive awareness of color.
It was all part of the vicious circle that Myrdal and a growing number of other social scientists
saw trapping the African American. The poisoned fruit of prejudice worked its toxic effect on
such succeeding generation of Negroes: where and how could the chain of environmental
deprivation be broken? Segregation itself, so long as it bore the imprimatur of the Supreme
Court, was the place to begin.

Kluger p. 327-331
The NAACP had made a tremendous psychological investment in the case against Clarendon
County and segregation. Kenneth Clark was to head to Clarendon County and perform his tests
under adverse conditions. Part of the job was to orient strangers to the Clarendon racial climate.
The first stop was the office of the superintendent of schools for school district No. 22, H.B.
Betchman, whom local blacks viewed as the mean talking henchman of the white-supremacist
power structure in the area. On the way out the door, “he pointed out some loose masonry to me,
as if to show that the white school wasn’t in any better shape than the colored one.
At Scott’s Branch, the combination Negro elementary and high school just beyond the railroad
tracks, the colored children had been prepared for Clark’s visit. Of the sixteen black children
between six and nine years old whom Clark tested, ten said they preferred the white doll to the
Negro one. Eleven of them said the Negro doll was the one that looked “bad.” Nine of them said
the white doll was the “nice” one. All sixteen correctly identified the white one as white and the

- 34 -
colored one as colored, yet seven of the sixteen children picked the white doll when asked to
select the one most like themselves. All these responses matched almost precisely the ratios
obtained by Clark and his wife over the years administering the same type of tests.

Kluger p. 347-367
Yes, it was true, declared Figg, the educational provisions for colored pupils in the defendant
school district were not substantially equal to those offered white youngsters, but no malice was
involved in the long-evolving process during which the differences had grown. The root of the
problem was in the almost entirely agricultural economy of Clarendon County, which, like so
many other rural parts of South Carolina, had been unable to keep pace in recent years with the
larger and urban school districts in their provisions for the children of both races.
Figg was asking the African Americans of Clarendon County. Who had first filed suit for better
facilities three years and two months earlier, to wait still longer because now the state had finally
heard their grievances and was hereby acknowledging them. Thurgood Marshall was not about to
budge, though his surprise over Figg’s maneuver was plain. “I think it is an effort to prevent the
plaintiffs in this case from developing their case in the only fashion which will enable us to
present a full and complete case. To show the unconstitutional nature of the state’s segregation
statutes as applied in Clarendon, said Marshall, “We must be able to show the inequalities as
they actually exist.” Marshall had weighed the risks of Clark’s findings and decided that on
balance they demonstrated injury to segregated Negro youngsters. “I wanted this kind of
evidence on the record,” he had said.
David Krech went on the stand first thing the next morning. “My opinion is that legal
segregation of education is probably the single most important factor to wreak harmful effect on
the emotional, physical and financial status of the Negro child,” he asserted. By defining people
in terms of race, Krech explained, the law promoted racial prejudice.
The plaintiffs’ plea for an injunction abolishing segregation of the races in the schools of South
Carolina was denied in the end. But the defendants were directed “promptly” to furnish equal
educational facilities to the Negro pupils within their district and to report back to the court
“within six months” on the progress that had been made toward that end. Judge J. Waties Waring
filed a twenty-page dissent, his last important opinion as a sitting judge. Plessy v. Ferguson was
irrelevant to Briggs, he wrote, since the 1896 case had dealt with segregation on railroads.
Schools were an entirely different matter, as recent decisions of the Supreme Court, such as
Sweatt and McLaurin, had made clear. The only real issue before the court was whether there
was a rational basis for segregation, which was undeniably founded on prejudice.

Kluger, Simple Justice

p. 388-396
Elisha Scott was a lawyer who fought for civil rights for blacks in Kansas (integration of
a swimming pool in Newton, kindergarten in Coffeyville, schools and theaters in Topeka).
However, his activism had been confined to a local level until he met Esther Brown, a white
middle-class housewife. Esther Brown, after trying to stand up for the improvement of black
school, found herself confronted by angry white residents. “She went on a one-woman crusade”
(390), leading the boycott of the public school and the establishment of private schools for blacks
in the area, raising money for her lawsuit, and eventually won admission of the children to the
white school. Scott, in Topeka, handled her case. However, Scott himself was not successful in
enlisting the support of the black middle class for school desegregation in Topeka. Black

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teachers there, fearful of losing their jobs, along with black professionals were wary of being
plunged into an integrated society. Lucinda Todd, the NAACP branch secretary, finally found a
plaintiff for the desegregation case: Oliver Brown.
p. 469-480
Kluger tells the story of Barbara Rose Johns, a high school student who decided that it
was time blacks and whites were treated equally. She organized a march out to protest their not
getting a new high school and proposed a boycott until the white community responded. Oliver
Hill, Lester Banks, Martin Martin, and Spottswood Robinson had taken on numerous school
districts in the South to make them equalize schools. Hill and Robinson arrived in Cumberland
County at Moton High to assist Barbara and expedite the process. Because Virginia wanted to
“undercut” the desegregation suit, they quickly began building the new black school. Barbara
Johns was sent to Montgomery, Alabama to finish high school for her safety.
p. 507-513
Oliver Hill delivered an impassioned closing argument in a desegregation case in Prince
Edward County, Virginia. However, the court was unconvinced. Washington was selected as a
good battleground because it had always been “obliged by its status as the federal city to serve its
black schoolchildren more justly than the rest of the sovereign South” (512). However, post-War
budget problems led to cut backs in black schools first.
p.519-542
Black lawyer Jim Nabrit framed Bolling v. Sharpe in a way that didn’t focus on
merely the unequal facilities but segregation itself. Thurgood Marshall preferred a more cautious
approach, thinking that jumping from equalization to desegregation strategy was “premature”
(525). In strategy meetings, Marshall and the NAACP legal corps discussed Plessy v. Ferguson’s
“nagging ‘intellectual strength’” with Wechsler (531). Marshall and team had to figure out a way
to be able to argue that segregation was prima facie discriminatory.

WEEK 3

October 6th - Week 3, Lecture 2

- Take you back to Black’s statement in Swift in which he’d already said there were two roads
to dealing w/ segregation
- What black said at 1st conference: spoke forcefully vs. legalized segregation # civil war
amendments’ basic purpose was to prevent the creation of such castes…Black had to vote
that way to end segregation
- Two surprises at 1st Brown conference were Minton and Burton (two of Truman’s mediocre
appointments)
o Burton declared at 1st conf that racial segregation in public schools was unconstitutional
# w/ 14th amendment states do not have the choice, segregation violates this…not
reasonable to educate ppl separately for a joint live
o Minton: the hour is late the court has chipped and chiseled away at Plessy but
classification by race does not add up…there will be trouble…negro is oppressed and in
bondage…segregation if unconstitutional
o Black, Douglas, Minton, and Burton # 4 votes against segregation who never formed a
block on anything else

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 o Frankfurter spent most of his discussion time advocating reargument and picking on
little things # never in favor of overruling brown at the 1st conference
- All justices were deeply aware that eliminating segregation in public schools would strike at
the central nervous system of the southern way of life
o Never far from justices’ minds that overruling Plessy might ignite social revolution #
common warning from justices that didn’t want Plessy overruled
- Frankfurter managed to persuade reargument on two things: what was the meaning of the
14th amendment and what should the scope of the decree look like (what should the remedy
be, how should the court implement this)
o Sent the lawyers in a total tizzy trying to figure out what produced this set of questions
in the SC
- Warren’s opening statement set the tone: the basis of the principle of segregation (“separate
but equal”) rests on the premise that blacks were an inferior race
o Precipitous action was not a good idea, must do it w/o causing deep strife and
commotion in the south # should abolish in a tolerant way the practice of segregation in
public schools
o Unanimity in Brown was achieved by Warren’s understanding that what the potentially
dissenting justices wanted was a gradualist handling of the issue# there was bargaining,
dealing, they never talked about it that way but they understood what was happening
- If we went through the conference still in more detail you can see the moment at which there
was an agreement among the justices that they would go for a gradualist result
o Wrong to blame Brown II’s phrase of “all deliberate speed” on wrong performance from
Brown I

The text of Brown

- The way to understand this decision is to really understand the objective that Warren had in
writing this opinion
o 1st: to achieve as general a moral and legal consensus as possible
o 2nd: to offend the south as little as possible
- “In approaching the problem of whether there’s inequality in segregation we can’t turn the
clock back to 1868 when the amendment was adopted or to 1896 when Plessy was written”
o The only one that wanted to decide things on the original meaning was Black
o Can’t turn the clock back to Plessy bc in tiptoeing around this question, Warren doesn’t
want to directly overrule Plessy in the sense of saying that even in 1896 Plessy was
wrongly decided, instead he wants to say we must consider Plessy in light of the
development of public education in its present place
- Takes us back to the Brandeis brief (pg 117)
o Brown was enormously influenced by the assumptions of law contained in this brief
o Written in the case of Muller vs. Oregon following the court in NY that limited the hours
of bakers # case was about whether you could have maximum hour laws for women
! Attack on Lochner court’s jurisprudence # static and unchanging law was not the
right interpretation
- When warren wants to talk on the legal status of Plessy he doesn’t have to say follow “if it’s
wrong today it was always wrong” # Brandeis says things change with time, law is not
static

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- By refusing to turn the clock back to 1896 he’s avoiding the question of whether Plessy was
wrongly decided then and finessing the question of whether segregation was always wrong or
not

October 8th – Week 3, Lecture 3

- Warren doesn’t want to overrule Plessy but distinguishes in changing circumstances
o Pg. 132, footnote 11: the effect of prejudice & discrimination on personality
development
- Connect dots: Warren’s wish to say there are changing circumstances with the complex
psycho understanding that it produces inferiority
- Footnote produced an incredibly negative reaction in what would have already been a
negative reaction: NY Times said this was a sociological opinion, not a legal one and
cited footnote 11
- The famous doll studies of Kenneth Clark are discussed at great length by Kluger in
simple justice # according to him the doll studies were methodologically flawed to the
max

How did footnote 11 come about?

- Comes by different names: when there was a distinction btwn law in books and law in
action # sociological jurisprudence
- The whole movement beginning w/ attack on Lochner we think of as legal realism
- See the way in which legal realism affected the decision of Brown and esp footnote 11
o Justices deciding Brown were affected by legal realism in 3 diff ways
1. Powerful influence of sociological
o Brandeis brief: 2 pgs of legal, 95 of sociological data on women’s ability to work
(SC took Brandeis position and limited hrs of work for women)
! NAACP participation in preparation of briefs # pg. 115 statement in
Plessy was the “law in books” (it doesn’t bother whites, why should it
bother blacks), this idea became the basis of a whole socialsci lit that
sought to show the distinct btwn the abstract law in books and actuality of
living as a black person in America

- Warren believed that footnote 11 was designed to evoke his belief that Plessy was meant
to make blacks feel inferior
- When Black first declared in favor of overruling Plessy he concluded that the premise
was not sound # couldn’t escape the view that the reason for segregation was to make
blacks feel inferior
- Idea that Plessy could be refuted by facts and history that the constitutional meaning
changes as the world changes # remember this when we go back to Black’s original
view that the const didn’t change
2. Influence of sociological theories on law
- Sumner # formula for justifying social pacifity (state ways cannot repeal folkways) #
cannot change ppls hearts and minds by changing the law
o Only legal realist attack on this (their idea that you CAN you use law to change
society) led the way to Brown
- Changing circumstances require different views (legal realism)

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 o Jackson’s opinion in WV v. Barnette (pg. 53)
o Frankfurter: law must respond to changing views
o Justice Reed: factors looking toward a fair treatment for negros are more
important than the weight of history

- Conventional view that frankfurter was on the side of the 5 that were for overturning
Plessy at the 1st conference # not good
o 1st is frankfurter’s long standing advocacy of judicial restraint
o Refusal to accept Carolene Products footnote
o Insistence of across the board judicial restraint
o From a moral point of view he had no doubt what needed to be done but didn’t
know how to reconcile it with his views on judicial restraint
o Pg 205
o Horwitz # he really went through torture on this decision
- Frankfurter: Spent a huge amt of time talking about “the decree” and how it was going to
be enforced # made it clear he wanted local conditions to play the part in deciding
o Gradualist decree becomes clear at the end of Brown (pg 134, footnote #13 that
started on previous page) # Horwitz believes that if you look at these questions
you will see (as most lawyers saw) that the SC had already decided more or less
where it was going)

Kluger - p. 587-617, 629-645

Pgs. 587-617
- 1952: guilt by association sanctioned by justices in case where NY schoolteachers could
be fired for being involved w/ a group that advocated the overthrow of the gov’t
- 1946-52: polarization of justice clearly illustrated in free-speech cases (similar patter in
cases of due-process)
o Vinson, Reed and Minton almost never favored libertarian position
o Black and Douglas upheld free-speech in almost every case
o Jackson and Frankfurter were in the middle
- Vinson wasn’t the strongest leader – clear when he carried only two other justices in
defense of Truman’s steel-seizure in the Youngstown sheet and tube v sawyer case
- Other justices (except Reed) looked down on him as second-rate
- Big Four united against Vinson but also faced off in hostile pairs: Jackson-Frankfurter vs.
Black-Douglas
- Faced off against the entire south in confronting brown – could no longer just chip away
at Jim Crow w/o addressing the real question: Plessy

- SC the most secretive in it’s deliberations of all gov’t # good bc it shields justice from
pressure of public opinion
Vinson on School Segregation Cases (pg. 591-94)
- Vinson wasn’t known for being able to persuade his colleagues to resolve their conflicts
on cases where he himself was set on his position – in the 5 segregation cases discussed
one Saturday in 1952 he didn’t even have a set position

- 39 -
 o Vinson was reluctant to advance African American rights beyond a line he judged
to not to be intrusive on white sensibilities (signaled by dissent in Steele v.
Louisville and Nashville Railroad) # almost certainly not ready to support the
abolition of segregation
o Said several key things: segregation long accepted in DC, Harlan left school
segregation out of his Plessy dissent and then authored the unanimous opinion
allowing Georgia to classify its schoolchildren along racial lines, congress’
responsibility – court off the hook
o Saw the prob as essentially political and social in nature – no step should be taken
by Court w/o being really aware of the drastic consequences
Black on School Segregation Cases (pg. 594-598)
- Vote never in doubt: committed himself to black man’s fight for justice
o Record was mixed however: had administered the law in Alabama as a judge
equally to whites and blacks, but had also joined the Klan to boost his political
support at one point, etc.
- Free of a segregationist constituency he would vote his conscience
- Black’s opinion in Chambers v. Florida: the Court was there to stand as a haven for the
weak and helpless victims of prejudice, Justices’ highest duty was to protect the rights
and liberties of the individual citizen, not to weigh them meticulously against the claimed
needs and readily rationalized intrusions by gov’t (as frankfurter proposed)
- By 1947, black was demanding strict adherence to the bill of rights in all cases, state and
federal # never gained support of the majority of the court
- Black spoke at length and with great clarity about the need to strike down segregation –
he had lived in the South and new that the only purpose of segregation was to
discriminate against blacks and make them feel like inferior beings # this was against
the Civil War amendments
- Knew the difficulties, justices didn’t know how a ruling against Plessy could be enforced,
but Black was determined to overrule it on principle
- Ulmer, a historian, later INCORRECTLY translated Burton’s notes from the conference
to say that Black would consider changing his position and vote to maintain segregation
if the majority of the justices went that way # because of this, Black burned all his
conference notes on brown for fear that they might be used by future historians to draw
incorrect conclusions
Reed on School Segregation Cases (pg. 598-599)
- From his voting record you’d think he’d vote to overturn segregation, but at
conference he said he was opposed to abolishing it
- Looked at cases form a down-to-earth “how will this affect me” way
- He didn’t accept the proposition that segregation was necessarily an act of discrimination,
didn’t thing segregation cases had been brought properly under the equal protection part
of the 14th amendment # equal protection could be attained through enforcing separate
but equal
- Thought that in 10 years it would go away on its own
Frankfurter on School Segregation Cases (pg. 598-604)
- Worshiped the law, SC shouldn’t make hollow proclamations beyond its power to
enforce

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 - “Judgment best informed, and therefore most dependable, within narrow limits”
(concurring in Dennis)
- All judgments should made on “rational standards” free of any influence by the judges’
personal feelings
- To follow his humanitarian impulses on the school-segregation cases, he would have to
violate a number of his favorite and most assiduously pronounced doctrines
- Diff conclusion on the 14th than black: in all likelihood, the framers of the amendment
had not intended to outlaw segregation
- Like Vinson, struck by Justice Harlan’s failure to mention schools in his Plessy dissent
- Set about to get a unanimous opinion # put his clerk Bickel on the assignment of finding
out if anything in the original meaning of the 14th amendment prevented the court from
striking down segregation
o Wanted unanimity so that clashing opinion wouldn’t cause racial warfare in the
South
- Was willing to strike down segregation on a federal level and enforce immediately, states
presented a bigger issue
- Wound up proposing that all cases be set down for reargument and that the incoming
Eisenhower admin be invited to submit a brief and participate in the oral argument to set
forth its ideas on desegregation procedure
Douglas on School Segregation Cases (pg. 604-606)
- Glacial personality
- Open to the charge of conceiving of the court not as a reviewing body but as a
countervailing center of power to rectify the failures of the other branches of gov’t
- At the 1952 conference he favored reversing the lower-court opinions upholding
segregation
- Not enthusiastic about frankfurter’s suggestion that the cases ought to be reargued
Jackson on School Segregation Cases (pg. 606-611)
- Chief counsel of the US at the international military tribunal at Nuremberg
- Believed in stare decisis
- “The judge that can take refugee in a precedent does not need to justify his decision to the
reason. He may ‘reluctantly feel himself bound’ by a doctrine, supported by a respected
historical name, that he would not be able to justify to contemporary opinion or under
modern conditions”
- Often as inconsistent and unpredictable as he was brilliant
- Legally saw no way to overturn segregation, personally thought it was not wise or fair
(like Frankfurter)
- Saw no help in the extra-legal sociology and psychology black lawyers introduced into
the case
- Didn’t want the court to accuse the south of behaving unconstitutionally all those years,
wanted the court to admit it was making a new law for a new day
- An advisory opinion was favorable to Jackson, but not to frankfurter
- Jackson with his reluctance to see any real judicial basis for overturning segregation and
his flirtation w/ the sort of advisor opinion that the court had insisted since Marshall’s
day it couldn’t constitution issue to the other branches of gov’t, were almost certainly
why frankfurter thought Jackson would vote to affirm segregation and thus why he
wanted to hold off a vote

- 41 -
Burton on the Segregation Cases (pg. 611-613)
- The fairest man the court
- On school-segregation cases, his vote wasn’t really in doubt
- Ready to reverse at the 1952 conference (in a soc where the lives of blacks and whites
were not separate anymore as they were in the time of Plessy, separate but equal wouldn’t
guarantee equal treatment)
Clark on the Segregation Cases (pg. 614-615)
- Voted the way the chief did about 90% of the time – both were intimates of Truman,
shared his pragmatic, non-intellectual and highly politicized sense of the world around
them
- But, by end of 1952, increasing signs that Clark was standing on his own feet (most
important evidence: earlier vote in the yr. To strike down Truman’s seizure of the steel
mills)
- Not ready to take a clear stand on brown – probably dissenter
Minton on the Segregation Cases (pg. 615-617)
- Strict adherence to the law, not very adventurous or reflective member of the Supreme
Court
- Votes on the 7th circuit reflected little of the liberal social commitments that had
characterized his service in the senate – supreme court record before and after these cases
was spotted
o Dissented w/ Vinson and reed in brotherhood of railway trainmen v Howard,
dissented alone in the final Texas white-primary case terry v. Adams (the
“jaybird” dissent # suggests something of the limitations of his thinking)
- At the court conference in December he took a strong and unmistakable position –
classification of American citizens on the basis of race was unreasonable, segregation in
and of itself was unconstitutional
At the First Full Consideration of Brown
- Black, Douglas, Burton, and Minton stated their willingness to vote in favor of ending
segregation
- Read was ready to vote to affirm it
- Other apparently didn’t say how they’d vote, except for frankfurter’s indication that he
was ready to overturn it federally
- Vinson and Clark troubled by the uproar it would cause – preferred to wait and see
- Jackson would not vote on striking down unless a maj insisted on declaring that
segregation had been wrongly held to be constitutional all along
- Vinson was distressed over the court’s inability to find a unified position on such an
important case

Pgs. 629-645
- Decade of legis from 13th amend to civil rights act of 1875 = closed the gap btwn the
promise of the Declaration and the tactful, tacit racism of the Constitution
- Anti-slavery theorists began arguing that article IV of the constitution was nothing less
than a proclamation of nat’l citizenship to which implicitly attached natural rights and
civil liberties of all men first promised in Declaration – claimed it included blacks as well
as whites

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- All agreed that passage of 13th amendment gave the African American his liberty, but had
it made him a citizen?
o Proponents of the measure had read it to include citizenship and all rights granted
by citizenship
o Dems and conservative republicans challenged so sweeping a reading of the
amendment – no such thing as nat’l citizenship and bc civil rights remained w/I
the sovereign discretion of the separate states, congress couldn’t legislate to
protect them
- Imposition of the black codes in the south throws question into sharper relief # sent
blacks almost into bondage # congress struck back by invoking the enforcement section
of the 12th amendment and passing the civil rights act of 1866
o All persons born in the US were citizens no matter what
o If bill had passed in original form, future segregation laws would have been
snuffed out by the congressional prohibition – senate conservatives argued
unsuccessfully against the “no discrimination” clause, but it met its end in the
House, Senate concurred, both overruled president’s veto
- Many congressmen thought this issue of “no discrimination” would be placed beyond
constitutional dispute by 14th amendment
- That the framers of the 14th amendment intended it to go well beyond the specifically
enumerated rights of the Civil Rights Act of 1866 was strongly suggested by its sweeping
language and the grand, hard-to-pin-down terms that had not been part of the rights bill
o Senator Howe cited a horribly discriminatory law about Florida school
segregation to support this amendment # later cited in brown as considerable
evidence that several congressmen believed the bill as originally framed would
have eliminated racially segregated schools
- 50 yrs after ratification of 14th amendment “equal protection” in Southern schools meant
that scarcely 1/3 as much was spent on the education of each black child as on each white
one
- Bc the south was so hostile to public education in the 1st place, whether the schools
would be segregated was of less concern to the framers of the 14th, they were just trying
to get schools in there in the 1st place
o At the time the amendment became law practice of school segregation varied
widely: 13 states had either no segregation laws or specifically forbade the
practice, 8 states provided for separate schools but left it to local communities to
adopt it if they wished, 5 states outside old confederate either directly or by
implication excluded colored children from their school entirely, only 5 states
could reasonably have been said to have abandoned segregated school in the
immediate wake of the 14th amendment (three subsequently restored the practice)
- Neither congress nor the state legislatures understood that equal protection would require
the end of segregation in public schools

- As NAACP lawyers uncovered all this ambiguous evidence, spirits rose and ebbed at the
legal defense fund’s headquarters
o Comments by house leader of bill that civil rights bill wasn’t meant to outlaw
segregation in schools, the removal of “no discrimination” clause, and how the
state legislatures had interpreted the bill troubled the NAACP

- 43 -
 - NAACP scrambled frantically to come up w/ a convincing argument while the states and
fed gov’t postponed argument of the case to do their own research – their case would be
made or broken in a matter of months
- NAACP had a conference to discuss all the evidence and tackle the damming evidence –
became mired by the “facts” in finding the best way to overcome the historical evidence
that was damning them
- NAACP lawyers really believed that once the legal barriers fell, the whole black-white
situation would change
- Problems with the brief they were writing for the SC: historical facts were against them
in saying that framers of 14th amendment had intended school segregation to be abolished
- Finally found something they could use: speech by Thaddeus Stevens when Bingham
presented the 14th amendment said that it meant “where any state makes a distinction in
the same law between different classes of individuals, Congress shall have the power to
correct such discriminations and inequality”

Kluger, p. 648-658

Thurgood Marshall and the NAACP prepared a masterful 235 page legal brief for the 4 state
cases, including Brown – the brief claimed that the historical evidence showed that the 14th
amendment was intended to prohibit all state-based racial discrimination – but even barring this,
segregation laws could clearly be seen to fail any rational basis test
NAACP: Separate-but-equal implies a doctrine of racial superiority – Plessy was decided as it
was because of the customs and traditions of the people, but the Civil War Amendments were
intended to destroy the customs and traditions of the Slave South

The states defending segregation applauded the invitation for reargument in Brown – while it
was recognized that the Supreme Court (SC) often strayed from framer’s intentions, the states
believed there was a crystal-clear case that the framers of the 14th amendment had not meant to
include integrated education in the amendment
Research by the States showed that none of the framers had intended to bar segregated education,
and furthermore, the 14th amendment Congress actually allowed segregated schools in
Washington D.C. – the State’s lawyers were confident they had the case won
Virginia claimed that the 14th amendment was written so as to legislate within the same bounds
as the Civil Rights Act, which did not include education – the NAACP disagreed, showing that
the amendment was far more expansive than the bill, given its historical applications
The South Carolina brief showed that no states had interpreted the amendment as barring
segregated schools – in the 19th century, attending public school was not seen as a constitutional
right, and hence claiming that the 14th amendment banned school segregation was putting a 20th
century spin on things
Virginia distinguished McLaurin from Brown by saying that in Mclaurin, the SC found that there
had been inequality, not just separation
Yet the states could never produce convincing evidence that there was a rational basis for
segregation – Virginia pointed to statements from two white psychologists as evidence
Delaware argued that mixed schools were harmful, but couldn’t prove they were

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Attorney General Brownell was supposed to create the government stance on Brown – The SC
had invited the department to the reargument, and so they had to file a brief
Eisenhower preferred the abolition of segregation, but supported a gradual approach in the public
schools, and would not have wanted the SC to issue the order
Brownell asked for an extension – the Department of Justice then composed a 600 page brief that
came close to saying school segregation ought to be outlawed – the brief also said that historical
evidence as to the framer’s intent was unclear, and just because the framers may not have meant
to outlaw school segregation did not mean they intended this as a permanent solution – after all,
blacks had just been freed as slaves and might not have been ready yet for co-education

Alexander Bickel, Frankfurter’s clerk, was in 1952 assigned to write up the framer’s intent for
the 14th amendment – Frankfurter circulated the resulting report among the justices just before
the Brown reargument – Bickel concluded that the Court was free to construe the Constitution
irrespective of the legislative history, which was unclear

pp. 662-677

Warren grew up poor, always had a job – earned a doctorate in jurisprudence, later became a
District Attorney, was viewed as incorruptible – later became attorney general of California –
successfully cracked down on illegal behavior, but was extremely fair – got caught up in
patriotism around world war II, and testified as to danger of Japanese-Americans, supporting
their internment – later became governor, continued to believe that Japanese should stay
interned, only later changing his mind
Warren led in a non-partisan and enlightened manner

As Chief Justice, Warren picked things up as he went along, having never served as a judge – the
largest Negro newspaper had applauded his civil rights views when he was a presidential
candidate, presaging his record on the Court
At the Brown reargument, the NAACP spoke first - the SC asked questions about intent of the
framers, and to what extent statements made by framers ought to be believed
Thurgood Marshall spoke next – he was questioned about whether Court had power to outlaw
school segregation – he cited McLaurin, but Frankfurter said that case was about inequality,
which doesn’t necessarily outlaw a separate but equal doctrine
Then, an attorney for the States spoke, arguing that framers had never meant to touch school
segregation, and that desegregation would be difficult and likely come without benefits to either
race
Marshall, on rebuttal, argued that segregation was grounded in the belief of black inferiority

Kluger 682-702
Warren made it clear he would no longer tolerate delay on the school segregation decision
He also clearly associated upholding Plessy with upholding racial inferiority
Presented his position in a roundabout way, but made it clear how he wanted the decision to
come down very early on
Off the bat, 5 were against segregation, but for different reasons, and the others needed much
more convincing

- 45 -
Frankfurter was perhaps the most torn on this decision, but the evidence shows he was an early
desegregation supporter
Jackson refused to see any judicial basis for the decision either, but he also laid out a
groundwork of potential support – he was ultimately convinced not to write a concurring opinon
Reed was the hardest to sway, because he didn’t have any real problem with segregation
Warren did have to wait for his Senate confirmation before he started pressing the other Justices
to join his cause
Warren took on the cause of writing the opinion, in order to be able to adjust it to bring in all
nine
Reed may never have actually been convinced in the merits of the argument, but he was
ultimately convinced that it was good for the country

Rosenberg, The Hollow Hope

Rosenberg rejects the real significance of Brown arguing instead that it held only
symbolic significance. He makes a broader argument that courts are unlikely to produce
significant social change. He points to the fact that few schools actually desegregated until after
the passage of the Civil Rights Act; “for ten years, 1954-64, virtually nothing happened” (173).

Kalman, The Strange Career of Legal Liberalism

Kalman argues that Brown represented more in that it showed what courts and law could
actually do. Other points:
• The Warren Court established itself as a “liberal bastion” (175) with the Brown decision
• Brown represented “the turning point in terms of people’s conception of what the law
could do” (175).
• Quoting Owen Fiss: “Of course the Court did not act in a political or social vacuum”
(175).
• Americans still see the Court as “the great engine of social change” (176).
• The Warren Court “forced an older generation of law professors to try to prove the
decisions of [Warren’s] Court were based on objective foundations of justice” (176).

Wechsler, “Toward Neutral Principles of Constitutional Law”

Wechsler points out that the courts cannot escape politics but should try to aspire to
neutral principles—to abstract what is going on in the world as much as possible from decisions.
(legal formalism). Other points include:
• Wechsler thinks that the judgment in Brown did not rest upon the facts. “It must have
rested on the view that racial segregation is, in principle, a denial of equality to the
minority against whom it is directed” (181).
• Wechsler suggests that the question was not actually one of discrimination but of
freedom of association: “a denial that impinges in the same way on any groups or races
that may be involved’ (182).

Horwitz, “The Jurisprudence of Brown and the Dilemmas of Liberalism”

- 46 -
M. Horwitz doesn’t think the anti-Lochner, judicial restraint approach ever really worked, but in
any case, it was overturned/undone w/ Brown. By the time Brown happened, almost two
generations of judges had been schooled in the doctrine of judicial restraint.
Things to do to better understand Brown in context:
1. “abandon the erroneous assumption that our constitutional tradition every required”
that a majority have unchecked power, even for a short time
2. stop trying to distinguish between political and nonpolitical
3. stop thinking that “our constitutional text usually provides clear or self-executing
commands which permit us to suppose that the process . . . is neutral and
nonpolitical”
Instead, need to judge stuff based on our “substantive views of justice” not an abstract model
Some factors in the debate about racial discrimination
- individualism – problems tend to be defined in terms of people not groups
- legalism – pigeonholes racial stuff into criminal or private lawsuits, not appropriate
- extremely formalistic decisions
- how committed are we (should we be?) to social and economic equality?
But, you can’t say that there are no “natural groups” in America. There are – Native Americans,
blacks, maybe women. . . . The way they’re treated indicates that not everybody is serious about
this equality thing. Also, there’s a tendency to divorce individual opportunities from group
identities. No good.
Distinction b/w public and private discrimination.
Our legal system has no means for redressing deprivation on a group level. Courts also limit
their censure of discrimination via intent requirement. Intents is hard to prove.
Link b/w discrimination and social and economic inequality.
Brown started out being just about racial discrimination but also became about court’s policy on
“whether the government can passively sit by and acquiesce in a socially, economically, and
legally unequal society.” Dealt w/ symptoms of inequality, though, not causes, because people
weren’t (and aren’t?) truly committed to societal equality.

Horwitz, The Transformation of American Law 1870-1970 p.201-210

Brief Summary
In post WWII America, there was a group of thinkers, championed by a judge, Learned Hand,
who ridiculed the Brown decision, denounced value-based Supreme Court legislating, and tried
to promote a process-based democratic system that did not weigh social values.

Detailed Summary
• Post-WWII America focused on the question: can facts be distinguished from values? Can
there be a separation between law and morality?
! Consensus thinkers: there are certain shared customs and conventions that must be
ordained as social facts. The way things are is the way they are meant to be thus certain
values are facts.
! Equilibrium theorists: there is a multiplicity of interests and values in society and
therefore there cannot be a social consensus on moral values.
• Judicial restraint

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 ! Carolene Products Footnote 4: tried to legitimate judicial activism in the area of civil
liberties while reiterating the Progressive commitment to judicial restraint in review of
economic regulation.
! Central question: how do you reconcile the Progressive commitments to judicial restraint
and judicial legislating in Brown v. Board of Education?
• Neutral Principles in Legal Process
! Prior to WWII, classical democratic theory was that there are certain values that could be
attributed to democracy (e.g., equality, protection for minorities).
! Post WWII, American legal thought focused on finding a “morality of process”
independent of results. Academic thought of the time period emphasizes value-free
social science subordinated over values.
" Joseph Schumpeter argued that democracy entailed no substantive commitments and
simply procedures for political competition (that “reins of government should be
handed to those who command more support than any of the competing individuals or
teams).
" Robert Dahl argued that a true democracy would have allowed Brown v. Board be
argued outside of constitutional restraints because it violated the freedom of the
majority.
• Learned Hand was a judge that criticized the Brown decision. He challenged the idea of
judicial review and suggested the Supreme Court acted like a “third legislative chamber.” He
did not believe in the weighing of values and rather sought a neutral process-based, non-
results based legal system.

WEEK 4

Powers, “The Life of J. Edgar Hoover”

Hoover = head of CIA
Had a real problem w/ the Civil Rights mov’t, mostly b/c he had built so much of his life around
white domination – actually made some of his black employees special CIA agents (the only
black agents at the time) to keep them from being drafted during the war.
Thought that civil rights organizations were prime targets for communist infiltration.
He had seen that civil rights law in the south was really struggling, and that Southern juries never
convicted civil rights offenders.
Furthermore, he treated any criticism of the FBI as a disloyalty issue – didn’t handle criticism
well.
Refused to involve the CIA in cases w/ clear Civil Rights implications, ex. Emmett Till murder
in 1955.
Implied that every civil rights incident advanced the communists’ cause, however believed in an
equal distribution of blame b/w blacks and whites
Brownell proposed a Civil Rights commission which died in the Senate
Civil Rights Act of 1957 – Eisenhower and LBJ (then majority leader) worked hard to get it
through. Hoover ended up supporting it, but never thought it was worth the Communist risk.

NAACP v. AL – 1958

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FACTS: The state wanted to publish a list of all NAACP members. NAACP refused, got fined,
and appealed.
JUSTICE HARLAN delivered the opinion:
AL court tried to say that the Supreme Court couldn’t take the case b/c of the wrong kind
of appeal. Whatever, they took it anyway.
Court rejects the idea that NAACP has to provide a list just because. NAACP says no to
project members rights, and they’re right in so doing. If individuals can conceal their
membership, then the organization is allowed to do it for them too.
By trying to make them disclose a membership list, the state is violating the Due Process
Clause of the 14th.
“This court has recognized the vital relationship between freedom to associate and
privacy in one’s associations.”
Also, it’s pretty obviously that disclosing a membership list will just endanger the
members – can’t do that knowing the effects it will necessarily have. Even if
mistreatment of individuals will happen on an individual, rather than state level, it’s still
going to happen as a result of a state order, so we’re not doing it.
Plus, the court doesn’t believe that state’s reasons for wanting the list (to figure out some
intrastate trading stuff) are valid enough to legitimate the risks.
NAACP members have a right to privacy from the Due Process of the 14th, “and we
conclude that Alabama has fallen short of showing a controlling justification for the
deterrent effect on the free enjoyment of the right to associate which disclosure of
membership lists is likely to have.”
REVERSED.

NAACP v. Button – 1963

FACTS: Virginia tried to make the state NAACP stop soliciting cases it wanted to try instead of
taking what came along.
JUSTICE BRENNAN delivered the opinion:
NAACP had been doing this for years, and Virginia didn’t seem to care ‘til they got kind
of good at it – passed a law in 1956 that tried to make soliciting cases illegal. NAACP
doesn’t have resources to try every case, though.
Furthermore, “we hold that the activities of the NAACP. . . are mode of expression and
association protected by the First and Fourteenth Amendments.”
NAACP needs to be able to try cases as, “under the conditions of modern government,
litigation may well e the sole practicable avenue open to a minority to petition for redress
of grievances.” Litigation = “most effective form of political association.”
“First Amendment freedoms need breathing space.”
Plus, we know the blacks have made Virginia mad; thus, a statute limiting their ability to
do what needs doing would be oppressive.
The VA court’s ruling was way too vague.
REVERSED.
JUSTICES HARLAN, CLARK, and STEWART dissented:
Striking down the Virginia statutes is unconstitutional – keep out of state stuff.

Lewis, “The Sullivan Case and the First Amendment”

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NYTimes – full page editorial advertisement for a committee to defend MLK, Jr. (charged w/
felony of tax evasion after supporting a student lunch counter sit-in)
Advertising dept. approved the add, “Heed Their Rising Voices”
Ray Jenkins wrote an article about the ad in the Alabama Journal which pointed out 2 factual
errors. Grover Hall got up in arms about it (strange guy – segregationist but pacifist).
Commissioner Sullivan of Montgomery (who would sort of let down the Civil Rights Mov’t later
by not making good on a promise to defend the freedom fighters) sent an angry letter to the
Times and 4 black ministers in Alabama. It turned out that their names had been used w/o their
consent in the ad.
Sullivan sued the Times saying the ad (which used no names) libeled him – Times retracted
offensive paragraphs and apologized, but the suit stayed and got larger. . .

NYTimes v. Sullivan – 1964

FACTS: The New York Times ran a full-page ad written and paid for by Civil Rights activists
trying to raise money to defend Martin Luther King, Jr. The ad department read and
approved the ad, although it turned out to have some (relatively minor) factual errors.
People about whom the facts were wrong sued the newspaper for libel and got awarded a
lot of money. Defendants appealed.
JUSTICE BRENNAN delivered the opinion:
If libelous statements would otherwise be constitutionally sound, their being in paid aid
doesn’t change anything, b/c you want to be able to have a free press. “To avoid placing
such a handicap upon the freedoms of expression. . .” Madison said that some degree of
abuse is inherent in use – especially with the press. Did they do it on purpose to slander
Sullivan? “Actual malice” requires proof – no convincing proof here.
REVERSED and remanded.
BLACK and DOUGLAS concurred:
Harassing and punishing a free press is unacceptable.

Powe Pg. 165-171

-Thurgood Marshall’s NAACP Legal Defense Fund provided lawyers and plaintiffs to sue for
desegregation
-NAACP a major factor in introducing desegregation in school boards
-NAACP was domestic threat to the South, so South demanded that NAACP made its
membership lists public; once public, the members of NAACP would become unemployed etc.
and their threat to the South would diminish
-This tactic was not successful
-Alabama managed to put the NAACP out of business there from 1956-1964 by claiming that the
NAACP was violating state law by doing business without registering – the judge on the
Alabama Supreme Court would not allow the NAACP to register b/c he wanted to protect white
supremacy When NAACP filed for a writ of certiorari against this, the Alabama SC kept
turning it down, and the US SC is not allowed to review state cases when state-law ground
supports the decision, but US SC recognized blatant lawlessness of Alabama SC so in NAACP v.
Alabama it reversed the decision citing lack of “Due Process”
-After reversal, Alabama SC reaffirmed its decision, which the US SC again reversed

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-Arkansas also tried to force NAACP to make its membership lists public – Attorney General
Bruce Bennett made the “Bennett Ordinance” that required all organizations in a city to provide
a list of members Bates v. Little Rock 1960 overturned convictions based on this rule.
-1956L South Carolina passed a law banning NAACP members from gov’t employment, but
later repealed this and replaced it with a law requiring all teachers to declare the organizations to
which they belong. Arkansas followed and adopted both of these laws In Shelton v. Tucker this
disclosure requirement was struck down (by a 5-4 decision). Harlan, Frankfurter, Clarke and
Whitaker (the dissenters) thought it was too hard to draw a line between this decision as it relates
to communists and as it relates to NAACP
-in 1956 the Florida legislature began an investigation about communists in the NAACP, and
demanded the NAACP membership lists. The US SC upheld this rule, but when Whittaker
retired is was reargued and then reversed.
-Virginia passed 3 laws against lawyers soliciting clients. This was upheld when the US SC
heard it (by 5-4) but again when Whittaker retired, it was restored for reargument in 1962

Powe Pg. 303-310

-Warren and Brennan agreed on cases 92% of the time
-NY Times v. Sullivan 1964 showed Brennan as the author of the legal doctrine adopted by the
liberals on the SC
-NY Times published a full-page advertisement appealing for funds to assist Martin Luther King,
Jr. w/ legal fees – the ad reminded everyone that African-Americans were asserting a right to
“live in human dignity as guaranteed by the US constitution. The ad went on to discuss how
Alabama police were using violence to meet some peaceful protests and were attempting to
destroy King. The ad was signed by 64 civil-rights figures and 20 African-American ministers in
the South.
-Alabama had waged war on the NAACP, and with the ad they included the NY Times in the
war – the Governor of Alabama (John Paterson) instructed the state attorney general to look into
suing the NY Times
-They decided to sue under tort law, and used Police Commissioner L.B. Sullivan as the plaintiff,
saying that lies had been spread against him by the ad. Along with this law suit, the Times was
hit by 42 other libel cases that its correspondent Salisbury had written about racial conditions in
Alabama.
-the key issue at the trial for NY v. Sullivan was whether the ad was actually about Sullivan
- The Alabama SC affirmed the charges and awarded Sullivan $500,000
-US SC said that the Time’s ad must be measured by the demands of free speech, which require
an “unfettered interchange of ideas.” Brennan said that the Constitution imposed a requirement
on state libel laws that preclude state officials from recovering damages for false statements
unless the statements were made with actual malice.
-The Sc decided that the ad in NY Times v. Sullivan did not fit these criteria, and thus it reversed
the Alabama SC’s decision
-The Court recognized the importance of free debate and free press in America.

Powe pg. 317-321

-State courts read the decision in Sullivan very narrowly
-The issue was raised about whether cases about libel decided before Sullivan should be reversed
-Black and Douglas maintained that that all libel was unconstitutional restriction on free speech

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-Garrison v. Louisiana: decided 8 months after Sullivan. Garrison was a publicity-seeking DA
who charged that the judges in Louisiana were lazy, inefficient and took excessive vacations. He
also suggested that there were racketeer influences on the judges. Because the case against
Garrison dealt with criticism of gov’t officials, it seemed to fit under the decision made in
Sullivan. Brennan said that garrison’s conviction could only hold f his statements were proved
false and were uttered with actual malice. The SC decided that Garrison involved “calculated
falsehoods” and so could be sued for libel. Black, Douglas and Goldberg disagreed b/c they
thought that the 1st Amendment protects anyone from punishment for libeling an official for
official conduct
-Sullivan was extended to all officials, including the supervisor of a ski resort in Rosenblatt v.
Baer. In this case, Brennan decided that “criticism of gov’t is at the very center of the
constitutionally protected area of free discussion” and that all people who appear to have
responsibility over governmental affairs are considered “public officials.”
-Warren wrote that there was a very blurred line between governmental and private sectors, and
that anyone who plays an influential role in ordering society can be considered a public official,
and thus can’t sue for libel unless the claims were false and made with actual malice.
-Future cases such as Time, Inc. v. Hill established that the SC thought that press was a vital
concept to democracy even when is discussed non-governmental affairs. It thought that the 1st
Amendment protected the press from legal scrutiny.
-This decision allowed the press to go too far, to corruption – unchecked assault was inflicted by
the press on its citizens
-The majority that thought the press should be protected were afraid to check its power due to the
“Chilling Effects Doctrine.”

Martin Luther King, Jr.: Letter from Birmingham Jail, April, 1963.
-based in civil disobedience, Christian moral/religious belief, and the free/democratic nature of
the ideals of American society justifies the very actions that resulted in his imprisonment and
brings his rationale and purpose to national conscience in order to combat inequality and the
widespread disregard for freedom.

-at the time of his imprisonment, King was president of the Southern Christian Leadership
Conference. he was in Birmingham as a result of requests from organizational ties to support a
non-violent, direct-action demonstration.

-explains that his travel to Alabama was a result of his moral obligation to carry the gospel of
freedom to wherever injustice existed. (relates his journey to that of the Apostle Paul)
-“Injustice anywhere is a threat to justice everywhere.”
-“What affects one directly, affects all indirectly.” (concerning injustice against blacks)

-King’s rationale, principles, and sense of morality were informed and shaped by his religious
background and beliefs. this is a recurring thematic motif throughout his letter.

-claims that Birmingham’s white power structure left the Negro community with no alternative
but to demonstrate. he outlines the thought process below which was carried out to establish the
lack of alternatives and to justify the demonstrations.

- 52 -
-four steps in nonviolent campaigns:
-determination of whether injustices exist based on facts. (ex: gross untreatment of
Negroes in courts, large number of unsolved bombings of homes/churches)
-negotiation
-self-purification (held workshops on nonviolence before demonstrations)
-direct action (sit-ins, marches, etc.)

-verbal negotiations and agreements with leaders of the city’s economic community preceded
direct action. (like promises to remove humiliating racial signs in stores) King’s organizations
resorted to direct action only after these proved unsuccessful.

-while King stresses the urgency of confronting injustice, he exercised patience in implementing
direct action. he strategically planned demonstrations during a major consumer shopping period
in the year (the Easter season), deliberately timing his program to pressure city merchants into
change.

-purpose of nonviolent direct action: to create such crisis and constructive, nonviolent tension
that a community unwilling to seriously negotiate is forced to confront the issues at hand; to
dramatize the issue so that it cannot be ignored any longer. this nonviolent tension helps society
to grow out of prejudice and racism into understanding and brotherhood.

-King had been accused of pursuing action in an untimely fashion, but he responds by citing the
fact that the Negro community had never made civil rights gains without determined legal and
nonviolent pressure.
-“…freedom is never voluntarily given by the oppressor; it must be demanded by the
oppressed.”
-“…justice too long delayed is justice denied.”

-principle of civil disobedience.

-two types of laws:
1. one has a legal and moral responsibility to obey just laws. just laws square with moral
law/the law of God. uplift human personality. a majority compels a minority to obey this
type of law and is also willing to obey the law; in other words, sameness made legal.
2. one has a moral responsibility to disobey unjust laws. unjust laws are out of harmony
with moral law; not rooted in eternal and natural law. degrade human personality. legal
codes that a majority group compels a minority group to obey but does not make binding
on itself; in other words, difference made legal.
-“an unjust law is no law at all.”
-“…an individual who breaks a law that conscience tells him is unjust, and who willingly accepts
penalty in order to arouse the conscience of the community over its injustice, is in reality
expressing the highest respect for the law.”

-human progress is not inevitable, but the result of the hard work of good men. without this hard
work, time helps to perpetuate social stagnation.

- 53 -
-King notes that in the southern religious community, leaders emphasized legality over morality
as the underlying basis of the wrongness of segregation. reluctance to take firm moral stance on
social issues with which the gospel had little concern. whereas, in the earlier days of Christianity,
the church was a means by which social mores were transformed, today the church is often an
archdefender of the status quo.

-as regards the actions of the Birmingham police department, it is wrong to use moral means
(nonviolent handling of demonstrators) to preserve immoral ends (segregation).

Morton J. Horwitz: Natural Law and Natural Rights, 1996.

-debate over natural law/rights in American history has arisen in widely varying contexts.
contemporary interest in matter is based in the struggle over the scope and meaning of the rights
legacy of the warren ct. and the fear that some rights (especially the Roe v. Wade right to an
abortion) were/are in jeopardy.

-the warren ct. legacy is often compared in relation to the meaning of the lochner era.
-lochner era supreme ct. illegitimately appealed to higher law principles to extend the
constitution to cover substantive as well as procedural due process. progressive attempts to
deligitimate the lochner ct. are often based in its revival of natural law concepts.

THE FOLLOWING SUMMARIZES HORWITZ’S ARGUMENT, BUT IS SOMEWHAT

LENGTHY. THE FINAL POINT, DENOTED BY “***” IS A QUICKER, THOUGH LESS
DETAILED CONCLUSION/SUMMARY OF THIS PAPER.

-in American constitutional history, the question has arisen as to whether it was legitimate to
appeal over and above explicit constitutional provisions to natural law and natural rights
principles. this was generally rejected.
-antebellum antislavery judges before the civil war did not feel that natural law and
natural rights could be used to determine the validity of positive law (constitutional, man-
made law). though they felt that slavery was wrong, a violation of natural rights, they
accepted their duty as merely limited to declaring positive law.
-natural law principles were subordinate to constitutional law. However, the most basic,
fundamental content of the constitution and of our rational legal system was in natural
law, generally.

-much of the confusion over the role of higher law in American history is a result of the lack of
clarity about how early judges and lawyers thought about the question. When Declaration of
Independence was drafted, there was confusion over at least 4 different conceptions of natural
law. Jefferson managed to weave these different strands of thinking into the Declaration,
reformulating them into a vision of universal moral laws.

-for most of American legal history since 1789, the issue of higher law has been marginal. few
have believed that it was appropriate for higher law directly to trump positive law. the
constitution is understood as a form of “superpositive” law enacted by the people.

- 54 -
-in the late 19th century, common law was modeled as what had existed in a prior state of nature,
before man-made legal systems were in place. judges could find the law by discovering what was
natural. The natural starting point for legal analysis was private contracts, which represented
voluntary agreements people would arrive at in a state of nature.

-1905-1940: progressives and legal realists rejected this. they claimed that property is a creation
of law, that judges make (not find) law, and that “state of nature” assumptions aren’t legitimate
starting points for legal analysis.

-abolitionist thought during civil war era: division existed over whether antislavery principles
could be derived from the constitution. Frederick Douglass believed that the constitution could
be invoked in behalf of emancipation. But the Dred Scott case demonstrated that natural rights
principles could be just as easily invoked to justify slavery as part of the right to property.

-the question of the relation between law and morals (natural law/rights vs. legal positivism) or
between facts and values (natural law/rights vs. ethical positivism). This is the general version of
the controversy over natural law popularized by the progressive criticism of the lochner ct.
Americans developed a fundamentally different picture of law and lawmaking than they had
initially inherited from England.
-England -- system of parliamentary sovereignty, no written constitution, no judicial
review, relied heavily on precedents.
-American cts. usually more willing to ignore precedents if it meant adhering to a general
principle. more policy-oriented than English cts.
th
-19 century European liberals were legal positivists who believed that the separation btwn law
and morality meant parliamentary supremacy over church/guild/manor and scientific supremacy
over religion.
-in early America, the distinction btwn law and morals stood for the separation btwn secular and
religious sources of law.

***-uses and meanings of natural law/rts have varied considerably in modern western culture
(horwitz draws on comparisons btwn systems ). it is not useful to address the question without
historical context…how natural law/rts have entered into legal discourse has varied depending on
context of the problems that the discourse was used to address. different versions of natural law
can arise to serve widely different functions (ex: to oppose or justify slavery). Natural law
conceptions have varied depending on whether they arose in the context of a written constitution
w/ judicial review, whether they were invoked to defend or restrict parliamentary or popular
sovereignty, and whether they represented religion or science in struggles over legitimation.***

WEEK 5

Mon. October 18—lecture

Re: Bell v. Maryland (1964) – see pg. 267
Question: could privately owned public accommodations discriminate based on race?
Constitutional question of whether the Constitution bans private discrimination without a
congressional act (i.e. does the Supreme Court really have that much power?)

- 55 -
Heard by S.C. just as Congress had begun debating the Civil Rights Bill
Was civil disobedience justified?
3 positions in the Supreme Court
! Justice Goldberg, Douglas, and Warren: unlawful to discriminate even without a civil
rights act by legislature
! Rest of the court: Without legal legislation, private discrimination was ok
! Brennan: avoided the question of whether the legality of private discrimination and used
extremely narrow or technical grounds; here he used the subsequent passage of the
Maryland public accommodations law as the basis for overturning the convictions
Black split from the liberal majority and ended his alliance with the other liberal judges

Reflecting on the liberal majority ultimately leading to the Warren Court

Earl Warren:
• Was there a deal between Warren and Eisenhower? Warren held swing votes at the
1953 Republican National Convention (as governor of CA) against Taft, and
Eisenhower promised to nominate Warren to the first open seat on the SC if Warren
would support him
• Vinson’s death left the Chief Justice position open to Warren
• Only member of the liberal majority who was Republican (could also be called a
Republican progressive or a liberal progressive)
• Keen sense of justice, idealized commitment to the American creed

Hugo Black:
• The 1st appointee by FDR (that later formed the New Deal majority) in 1937
• Served 35 years
• Disliked by fellow senators; nomination of Black sent to committee
• Rumours of Alabama KKK surfaced
• 63-16 confirmation vote for Black
• Haste in taking offer, clandestine nature of confirmation, then hastily arranged trip to
Europe
• On September 13, an investigative reporter revealed Black as an active member of
Klan
• Delivered a radio address on October 01 conceding the undeniable but not more; 59%
said he should resign before the address#56% said he should stay after the address
• If you wanted to be a senator in the south in the 1920s, you needed to join the KKK

William Douglas:
• Also appointed by FDR at age 41 (2nd youngest justice) in 1939
• Served 36 years
• Had a significant career in government, where he was a leading figure in a movement
for legal reform known as legal realism
• Had been appointed as dean of Yale Law just before being appointed to the SC
• Love of mountain climbing, nature, solitude#brooding personality
• Strongly identified with outsiders
• Father died when Douglas was 5#family in poverty

- 56 -
 • Only justice to be married 4 times to increasingly younger women

William J. Brennan:
• Appointed in 1956 by Eisenhower
• Father moved up from shoveling coal in a local brewery to become a prominent
labour leader and municipal official
• Served on New Jersey Supreme Court
• At the time, ideological divide affecting SC had not affected appointments (i.e. a
Republican would appoint a democrat)
• A Roman Catholic, but obligation to the Constitution took precedence over obligation
to Catholicism (indeed he was in the majority in Roe v. Wade)
• Eisenhower had promised powerful Church figure Francis Cardinal Spellman to
appoint Catholic to vacancy (last Catholic had been Murphy who died 7 years earlier)
• Eisenhower aide for confirmed that Brennan attended Sunday mass regularly

Arthur Goldberg
• Appointed by Kennedy to replace Frankfurter in 1962, tipping the majority from
conservation to liberal
• Made the 5th liberal vote just before Bell v. Maryland
• Appointed to the so called “Jewish seat” on the Court
• NAACP v. Button: first had 5-4 majority against NAACP, only after re-argument and
Goldberg had replaced Frankfurter did the majority swing the other way

In this lecture, Horwitz reemphasizes the way in which the background of the liberal justices
played a large role in their liberalism, since most of them had experienced the feeling of
being outsiders

Wed. Oct. 20—lecture

Bell v. Maryland
~Left scars in liberal majority that never really healed (DRAMA…)

Cox v. Louisiana
~23 black students arrested for protesting stores with segregated lunch counters
~Cox, a minister, led a protest and was arrested
~Overturned sentence for picketing near a courthouse
~Goldberg originally voted to uphold conviction but changed his mind because the sheriff
seemed to allow the peaceful protest at first
~Goldberg: “Rights of free speech and assembly don’t allow protests in Times Square at rush
hour”
~Black lost the majority, again

~Black and Brennan had a little tiff

~The Watts riots added to the belief that protests were increasing social unrest. The Supreme
Court was becoming anti-black/anti-civil rights movement
~With the sit-in cases, Black separated himself from the liberal majority

- 57 -
Adderley v. Florida (1966)
Black joined with the four conservatives
~Affirmed convictions of 32 FAMU students who protested outside the jailhouse
~the first case after Brown where a majority of the Supreme Court voted against a civil
rights case

Walker v. Birmingham (1967)

~The second anti-civil rights ruling
~Upheld contempt of court conviction for disobeying civil injunction against protests/marches
~Martin Luther King led a non-violent march in 1963 (case argued four years later)
~Police chief Eugene “Bull” Connor was a known segregationist

King’s “Letter from the Birmingham Jail” included his theory of civil disobedience: if an
individual breaks a law he sees as unjust, he is exhibiting the highest respect for the law
The Court heard the case on the grounds that Alabama judge’s order was unconstitutional. King
should have appealed, not disobeyed.
~Can you disobey an order that is unconstitutional even if it would have been overturned, if
appealed? The majority says NO. It cannot be assumed that the Alabama courts would not have
overturned the injunction upon appeal.
Warren dissents: argues that an injunction to prevent marches was a means to squelch labor
unions and civil rights/desegregation efforts

Warren: Civil Rights marchers=dislike of statute by violators

No violation of law if a law is unconstitutional. Nobody thinks disobeying a law/statute is
disrespecting the Legislature—if it is found that it is constitutional, you pay the consequences
later.
~Country at large was getting annoyed with civil rights protests. There was growing despair that
the US would never get away from slavery
~The Supreme Court’s attitude toward social protest changed. Public opinion turned after the
Civil Rights Act (1964) and the Voting Rights Act (1965) to the war in Vietnam. The public
became more intolerant to social protest.

Hard to believe that Walker would have been decided the same way five or six years earlier

Bell v Maryland (1964), PG267

Brennan delivered the opinion of the Court
Concurring: Douglas, Goldberg
Dissenting: Black

Negro sit-in demonstrators in Baltimore were asked, b/c of their race, to leave a restaurant. They
refused and were convicted of violating MD’s criminal trespass law. After the convictions were
affirmed and case proceeded to the Supreme Ct., MD enacted laws prohibiting racial segregation
in public accommodations.

-effectively made racial discrimination illegal in all public accommodations.

- 58 -
-the ct decided to remand the case to the MD state ct, b/c in light of new legislation, the ct might
nullify the convictions. the Supreme Ct. avoids the constitutional question of whether public
accommodations rts/laws may stem from the 14th amendment’s equal protections or due process
clauses.

Cox v Louisiana (1965), PG 283

Goldberg delivered the opinion of the Court
Dissenting: Black

The leader of a peaceful/orderly civil rts demonstration was arrested, charged with 4 offenses,
and convicted of 3 after a police officer construed his concluding remarks as inflammatory. The
demonstration, in Baton Rouge, was a student protest of segregation as well as the
arrest/imprisonment of 23 fellow students who were protesting on the day before. What the
sheriff claimed was inflammatory was Cox’s encouragement of fellow students to sit-in at lunch
counters.

-ct ruled that the LA conviction infringed upon rts of free speech and free assembly.

-the claims that Cox’s speech was inflammatory were unjustified.

-the LA state statute that the ct. used to convict Cox was unconstitutionally vague, because it
could be used to punish people even for merely peacefully expressing unpopular views. however,
the point of the constitution’s free speech provision is to invite dispute.

-conviction denied Cox freedom of speech and assembly secured by 1st amendment and applied
to the states under the 14th amendment.

Adderley v. Florida (1966) Pg 289

Black delivered opinion of the court
Douglas, Brennan and Fortas dissenting

-200 students gathered on a non-public private jail driveway and protested their school-mates
arrest. The sheriff asked them to leave, and when they didn’t, 107 of the students were arrested
for “trespassing with a malicious and mischievous intent.” The petitioners in this case content
that their right to free speech, assembly, due process and equal protection of the law (14th
amendment) was violated.

-SC rules that sheriff had the power to direct the group off of the jail grounds. Since there was no
evidence that the sheriff objected to the protests itself or used excess power, he was justified in
arresting those students who continued to trespass after his warning. The jail is the private
property of the state so the petitioners did not have a constitutional right to stay on the property.
Decision affirmed.

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-1st time SC failed to uphold rights to peaceful protests. Some people think that this is b/c a
protest near a jail was too dangerous – that the prisoners may have become involved and that
violence could have broken out.

-Dissenters think this is not a regular trespassing case, and that the petitioners had the right to
express their protests as long as they are peaceful.

John Blum: “Neither Peace nor Tranquility” (1991) Pg. 294

-John F. Kennedy issued an order to stop segregation in federally-supported housing in 1962, but
he made it prospective (not retroactive) and it only applied to housing financed in certain ways,
so it made little difference.
-In 1963, Kennedy told congress that he wanted legislation to help southern black register to
vote, but delayed sending specific proposals to the Hill to do this.-I order for Martin Luther King
to sustain his influence in the civil rights movement, so he led a non-violent protest in
Birmingham, Alabama to try and force Kennedy to stop temporizing about civil rights
-The protest involved a variety of sit-ins. Many blacks were arrested, and the city obtained an
injunction against any more racial protests. King thought the injunction was immoral, so he
protested it by marching to City Hall, and was arrested for violating it.
-King tried to convince people of the righteousness of his purpose by writing a letter from
Birmingham Jail – he felt that he had a moral responsibility to disobey unjust laws.
-After 1 week, King was released from prison on bail and reopened negotiations with the Senior
Citizens Committee (a group of white business men established a year earlier to keep racial
peace in the city), but the negotiations failed when a black mail carrier was killed while on a
“freedom walk.”
-King organized a March of more than 1 thousand black people protesting the jailing of hundred
of blacks in Birmingham May 2 of 1963, and the police order firemen to turn hoses full blast on
the protestors.
-Kennedy sent officials to mediate between the protestors and the white establishment.
-Finally an agreement was reached on May 10 that allowed for desegregation of lunch counter,
rest rooms and drinking fountains, and that black could be hired for jobs in the industrial
community on a non-discriminatory basis.
-After the agreement, the KKK bombed King’s brother’s house, and hundreds of blacks attacked
the police and firemen in fury, forgetting King’s instructions about non-violence.
-King returned to Birmingham and urged the blacks to move back toward nonviolence again, but
everyone was worried about the possibility of black riots across the south.
-The president sent federal troops o make sure that no rioting began again.
-This victory of the black’s increased their confidence, and black organizations began moving
from the gradualist approach to freedom to a “freedom now” campaign.

Walker v. Birmingham (1967) Pg. 298

Stewart delivers opinion of court
Warren, Brennan, Douglas and Fortas dissent

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-An Alabama circuit court judge issued an injunction saying that petitioners couldn’t participate
in or encourage mass street parades without a permit. The petitioners received this information,
held a press conference publicizing their intention to disobey it, and then held mass street
parades on April 12 and April 124 without even applying for a permit. The petitioners argued at
their hearing that the injunction was too broad, and that it restrained free speech.

-US SC decided that petitioners could not bypass orderly judicial review of the temporary
injunction before disobeying it.

-Since the petitioners did not file any motion to vacate the temporary injunction until after the 2
parades, they could not disobey it without consequences.

-The SC refers to an earlier case, Howat v. Kansas where it decided that disobedience of an
injunction, even if it was really unfair, was not permittable – the injunction had to be brought for
court review first.

-The state and local gov’t had a strong interest to protect its streets and other public places, so the
injunction in question was not constitutionally impermissible. While the injunction was too
broad and too vague, the way to fix that would have been to apply to the Alabama courts to have
the injunction removed. If the petitioners had applied for a permit and been refused, they may
have had cause to tae further action.

-Dissenters appreciated the fact that the majority recognized that the injunction was
unconstitutional, but felt that their excuse that the petitioners did go through the courts to act
against it were weak. They thought that the petitioners were just challenging the constitution of
a statute by violating it, as many had done before, and that this was a justifiable and legally
protected action if the statute was indeed found to be unconstitutional.

Katzenbach v. McClung
• Decided: December 14, 1964
• Justice Clark writes opinion
• All justices concur, Douglas, Goldberg, Black write concurring opinions

Facts
Ollie’s Barbeque was a family-owned Alabama restaurant that restricted blacks to take-
out service only. It refused to serve blacks in a sit-down setting, even though its staff was more
than two-thirds African American. In 1964, Congress passed the Civil Rights Act, declaring that
a restaurant could not restrict patronage by race if “it serves or offers to service interstate
travelers or a substantial portion of the food which it serves…has moved in commerce.” Ollie’s
BBQ was located near a state highway and railroads, and purchased nearly $70,000 in food from
out of state. Ollie’s BBQ went to Court questioning the constitutionality of the Civil Rights
Act’s “restaurant clause.”

Findings
The District Court found that there was no conclusive way to connect the “food
purchased by interstate commerce and sold in a restaurant and the conclusion of Congress that

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discrimination in the restaurant would affect that commerce.” However, the Supreme Court
reversed this decision, explaining that racial restrictions create “an artificial restriction on the
market and interfered with the flow of merchandise.” While Ollie’s argued that $70,000 was an
insignificant sum as compared to aggregate interstate trade, the Court believed that allowed such
restrictions would enable many “insignificant” sums to add up to a meaningful amount.
Ollie’s also questioned Congress’s power to legislate private restaurants. The Court
explained that Congress was justified in including restaurants in the Civil Rights Act, as “it had a
rational basis for finding that racial discrimination in restaurants has a direct and adverse effect
on the free flow of interstate commerce.”
In his concurring opinion, Justice Douglas includes this case under the umbrella of the
th
14 Amendment, finding it difficult to equate the rights of blacks with the movement of
foodstuffs across state borders.

Katzenbach v. Morgan
• Decided June 13, 1966
• Justice Brennan writes decision
• Justices Harlan and Stewart dissent

Facts

Registered New York City voters brought this case to question the constitutionality of
section 4e of the Voting Rights Act of 1965, which “prohibits enforcement of the statutory
requirement for literacy in English as applied to numerous New York City residents from Puerto
Rico who, because of that requirement, had previously been denied the right to vote.” The Rule
declared that anyone who had completed at least six grades in a Puerto Rican school was eligible
to vote, regardless of English proficiency. The Attorney General of New York declared that this
was an excessive exercise of Congressional Power, since only the Court could decide whether a
state law (English literacy tests) was prohibited by the Constitution.

Findings
Brennan wrote that Congress did not exceed their power, since they have the right to
“enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make
the amendments fully effective. A construction of 5 that would require a judicial determination
that the enforcement of the state law precluded by Congress violated the Amendment, as a
condition of sustaining the congressional enactment, would depreciate both congressional
resourcefulness and congressional responsibility for implementing the Amendment.” Congress’s
powers would be drastically limited if they do not have the right to create laws to protect the
amendments. Furthermore, Brennan says that only Congress has the right to judge whether
eliminating the literacy tests is a worthwhile action.

An American Dilemma: The Negro Problem and Modern Democracy

Gunnar Myrdal

Myrdal was a Swedish sociologist/economist who studied the racial problems in the
United States in 1938. In this section of the book he discusses the “fear of amalgamation.”
Myrdall believes that the fear of amalgamation, the fear of Southern whites that miscegenation

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by rape will lead to a tainting of their daughter’s “pure white blood,” is a unique characteristic of
the American theory of “no social equality.” He claims that Southern whites believe in the “the
absolute and unchangeable superiority of the white race,” and the belief that whites are dominant
in all spheres to blacks. Thus, the ban on intermarriage stems from the idea that black blood can
only taint the racial superiority of the Southern white establishment. Primarily targeted in this
belief are white women, who are deemed to be unable to protect themselves from the brutish
advances of the perceived hypersexual black males.
Myrdal cites numerous conversations with Southern whites where the question “Would
you like to have your daughter marry a Negro?” seems to be the crux of the argument for
segregation. He believes that a tense national opinion on sex makes this the most important
aspect of the “American dilemma” of segregation. The ban of intermarriage is ranked as the
most important aspect of the racial laws to southern whites, whereas segregation in schools and
public places comes lower.

Naim v. Naim (1955)

Case appeared before Virginia Circuit Court and Virginia Court of Appeals

Facts
This case concerns the marriage of a white woman to a Chinese man, who were married
in North Carolina, but immediately returned to live in Virginia. At the time, Virginia had an
anti-miscegenation law which claimed that it is “unlawful for any white person in this State to
marry any save a white person.” The wife sought an annulment of the marriage, and went to the
Virginia courts under the premise that her marriage was unlawful from the beginning and should
be erased.

Findings
The Virginia courts viewed this case as questioning the legitimacy of state miscegenation
laws. They cite a number of cases across the country that challenge these laws, but all end up
having them upheld. The Court names Brown v. BOE, explaining that it only bans segregation in
public schools, and does not apply to marriage. Ultimately, the court agrees with Ruby Naim,
and declares that “no such claim for the intermarriage of the race could be supported” by the
Fourteenth Amendment’s Equal Protection Clause. Miscegenation laws in Virginia were upheld.

Loving v. Virginia
• Decided June 12, 1967
• Chief Justice Warren writes opinion
• Unanimous decision

Facts
Richard and Mildred Loving were married in 1958 in Washington D.C. because their
home state of Virginia still upheld the antimiscegenation law which stated that interracial
marriages were illegal. They were married, then lived together in Caroline County, Virginia. In
1959 they were convicted of violating the state's antimiscegenation law. They were each
sentenced one year in jail, but promised the sentence would be suspended if they agreed to leave
the state and not return for 25 years. Forced to move, they returned to Washington D.C. where, in

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1963, they initiated a suit challenging the constitutionality of the antimiscegenation law. In 1966,
the Virginia Supreme Court of Appeals upheld the law.

Findings
This case challenged the constitutionality of miscegenation laws. Warren finds that
because miscegenation laws punish blacks and whites equally, it is inappropriate to strike them
down simply under the 14th Equal Protection Clause. Instead, he cites Korematsu, in saying that
the “EPC demands that racial classifications…be subject to the most rigid scrutiny.” Thus, the
Court finds that “the fact that fact that Virginia prohibits only interracial marriages involving
white persons demonstrates that the racial classifications must stand on their own justification, as
measures designed to maintain White Supremacy. We have consistently denied the
constitutionality of measures which restrict the rights of citizens on account of race. There can be
no doubt that restricting the freedom to marry solely because of racial classifications violates the
central meaning of the Equal Protection Clause.” Warren finds that all miscegenation laws are
unconstitutional.

Green v. County School Board of New Kent County

Decided May 27, 1968
Justice Brennan writes opinion

Facts
There were two schools in New Kent County, Virginia. After Brown, the Board of
Education continued segregation policies as a means of massive resistance. After the Court
issued an injunction against the County’s school board, the board instituted a “freedom of
choice” plan. In the plan, students can annually choose between the two schools, and are
assigned to the school they attended last year if they do not choose. Based on this plan, no white
students decided to attend the black school, and 85% of the black students remained in the black
school.

Findings
The Court struck down the “freedom-of-choice” plan, explaining that it “cannot be
accepted as a sufficient step to effectuate a transition to a unitary system.” This is based upon
Brown II which called for a “prompt and reasonable” start to desegregation practices. Since the
school board waiting 10 years after Brown II to initiate the plan, the Court found it to be a
questionable attempt to quickly solve the problem. The Court did not say the program itself was
unconstitutional. It did, however, say that this plan alone after three years, did not show any
promise towards ending the segregation problem. That being said, Brown II mandates the school
board to design a more effective strategy.

Powe 171-178
Moving to Direct Action
By 1960, the NAACP’s change through litigation strategy was being rendered irrelevant. Instead
sit-ins were popping up across the nation, in the style of MLK. There were two consequences to
the sit-ins: legal responses and risks of violence. If sit-in people were arrested for violating
segregation laws, the Court would then overturn the conviction. This became the new strategy.
Boynton v. Virginia stated that interstate transportation had to be free of any type of segregation.

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Thus, the Freedom Rides started in 1961, where integrated groups bought bus tickets and headed
to the deep south, intent on using facitilites. The KKK attacked freedom riders across the South,
particularly in SC and AL. The Court took no actions related to the Freedom Rides, but the
Kennedy Administration toughened Boynton commerce compliance.
The Right to Vote
The favored southern device for keeping blacks away from the polls was the literacy test. These
tests were usually unfairly given, and while technically race neutral, often prevented even
educated blacks from voting. The literacy tests were upheld in 1959 in Lassiter v. Northampton
Board of Elections since they were race neutral. The Civil Rights Commission was enacted by
the Civil Rights Act of 1957 to see whether individuals were discriminatorily denied the right to
vote. However, the commission used questionable subpoena power to gain information, drawing
overrules from the Supreme Court. Black proclaimed that “it will not do to sacrifice other civil
rights in order to protect them.” Ultimately, the Court ceased playing a major role in this arena,
and the NAACP tried to sustain itself amid a climate of peaceful nonviolence.

Powe 217-238
To the Civil Rights Act
Numerous instances of massive resistance in Mississippi prompted Kennedy to send federal
troops to intervene. However, MLK declared that Kennedy was unwilling to support a voting
rights bill. This was true, as the Kennedys felt no real emotional attachment to the cause, and did
not view it as one of the most important aspects of the administration. Soon after the violent
outburst in Mississippi, the Court heard NAACP v. Button and Gibson v. Florida. Button was
about Virginia’s attempt to curtail the way the NAACP and the Legal Defense Fund handled
litigation. Gibson merged the black agenda with the fear of communism, where FL believed that
seeing the NAACP member list was a legitimate national security claim. Both cases were ruled
for the NAACP.
Violent outbursts to the nonviolent work of MLK and others in the South finally changed
Kennedy’s opinion on the Civil Rights Bill. He introduced his bill in 1963. It was passed in
1964, and many believe that the “Letter from Birmingham Jail” and associated events were
largely responsible for the act. Kennedy had already been assassinated, and President Johnson
used Kennedy’s memory to persuade the passing of the bill. In the end, it passed the House by
an impressive bipartisan margin of 290-130. Senators, led by Richard Russell launched an 82-
day filibuster of the bill. Eventually, Johnson persuaded some key political players, and the bill
passed the Senate 73-27. Most of the dissenters were Southern democrats.
Southerners immediately started to question the constitutionality of the Civil Rights Act.
Heart of Atlanta Motel v. US and Katzenbach v. McClung were both attempts to demonstrate that
Congress had exceeded its power when passing the Act. Both were ruled in favor of the
government, with the Court sometimes relying on dubious connections and legal strategies (i.e.
the extension of the Interstate Commerce Clause in Katzenbach) to prove that the Act was fairly
decided.

Powe, p. 272 - 302

AFTER THE CIVIL RIGHTS ACT:
Mass Demonstrations: Edwards v. South Carolina and Cox v. Louisiana had similar
circumstances, but Edwards was ruled to protect speech, while Cox(2 years later) considered it

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mob rule. Goldberg explicitly upheld the courthouse picketing statute with Edwards.
Emphasized that anarchy is not an exercise of liberty. Brown v. Louisiana followed, showed end
to era of demonstrations as exercises of speech even though it reversed a conviction.

Ghettos, Campuses, and the South: Riots broke out around America in the mid-60s in ghettos
and college campuses (Berkeley was a main one). "Black Power" speakers gained popularity,
embodied African American rage. This preaching of race hate led to the Republicans blaming
the "soft social theory" of the Democrats, and the Republicans gained a number of House and
Senate seats.

The Court's New Attitude: Adderly v. Florida upholds conviction of protestors for tresspassing.
Continued this train of thought in Walker v. Birmingham. Ruling became a lecture to King,
reminding of the importance of law. 6 years after the Good Friday March, Shuttlesworth v.
Birmingham overturns Walker

Protecting Civil Rights Workers: Brennan stretches for overturning SCEF raids in charges of
"racial agitation" in Dombrowski v. Pfister. Argues chilling effect of overbroad Louisiana
statutes. Dombrowski becomes means for freeing civil rights organizations from local
harassment.

Racial Discrimination: 1883's Pace v. Alabama sustained prohibition against interracial sex
because it applies to all races. The court easily decided for civil rights in McLaughlin and
Loving but others were not so easy. NAACP suffered a 1965 defeat in Swain v. Alabama,
allowed prosecutor to use peremptory challenges to get rid of blacks in a jury.

Marshall's Appointment: Johnson made a spot for Marshall on the Court, resolidifies the liberal
bloc.

School Segregation: South embraced freedom of choice, which effectively meant nothing
changed. The Court understood this, and pushed for integration as much as possible. Finally
Green v. New Kent County brought their ideas public. United States v. Montgomery County
Board of Ed embraced racial quotas for faculty assignments to schools.

Overall, though the Supreme Court did a lot for Civil Rights and the NAACP, their rulings were
not perfect. Though they made these mistakes, the Warren Court era stands up well against other
periods.

WEEK 6

Lecture 29 October 2004

Red Monday – 3 cases decided the last day of the 1957 session

Yeats v. US – 1957
Decision by Harlan
refused to uphold the convictions of the “2nd-string communists”

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Some historical context:
Little Rock case is about to start
Massive resistance underway in the South
Court hadn’t decided a major case since Brown, in a very weak political position
All 3 Red Monday cases decided not on constitutional grounds, but on lesser,
technical terms
Court disturbed by McCarthy-ite excesses
Warren and Harlan started coming to the conclusion that the anti-communist
movement was threatening civil liberties

2 points in the defendant’s claims:

1. Smith Act punishes organizers – there’s only one organizer of the Communist Party,
so the organizing principle no longer counts because of the statute of limitations
2. Looked at evidence of defendants advocating the overthrow of the government.
Only/most evidence has to do with advocating ideas in the abstract – not actions, not
indictable
1st Amendment bans punishment for advocacy of ideas in the abstract. Advocacy of action not
protect (see: Dennis)

people thought that this case should have ended the life of the Smith Act, but they thought wrong
McCarthyism really ended when JFK promised not to prosecute communists. By then, though,
his “secret speech” had been discovered, which revealed the atrocities of Stalin’s regime and
caused people to abandon the Communist Pary.
Red Monday was less than a month after McCarthy’s death

Watkins v. US – 1957
Can HUAC let people take the 5th? Should it apply to their associates or just themselves?

Historical Context:
Committees: a person would testify to show his repentance for past activities. Real test
of repentance was if you were prepared to name names of associates.
Most people pleaded the 5th because they didn’t want to jeopardize their friends.
Actually, the 5th only protects self incrimination, not incrimination of others
Longstanding tradition that if you wanted to take the 5th, you had to start from the
beginning, couldn’t take it halfway through your testimony
McCarthy wanted to call the New Deal treasonous
HUAC put people through a humiliation rite: issued more than 135 contempt
citations in 8 years than had ever been issued before. . .

Warren wrote the court’s opinion on technical grounds (not 1st grounds) as to whether Congress
had authorized the committee to investigate this stuff – was legislation authorized?
And what is “unAmerican” anyway?
M. Horwitz called this ruling “giving the finger to Congress”
Balance test – not about clear and present danger, but a weighing of competing interests.
Frankfurter said free speech of individuals vs. the security of the US
Systemic failure of rights in the society

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Sweezy v. New Hampshire - 1957
NH went off the hook w/ the anti-Communist stuff. The attorney general became a one-man
HUAC.
Court reversed the conviction of Sweezy, a college professor.
Opinion writing by Warren.
Frankfurter advocated a balancing test: harm from government intrusion into university
vs. government compelling a witness to answer.

Bottom line: for the first time since McCarthy gave his 1950 speech, McCarthy-ite government
actions reversed. Then, a bill almost passed which would have limited the power of the Supreme
Court. Yikes. The result was that Frankfurter and Harlan began to draw back.

Schrecker, Many Are The Crimes: McCarthyism In America

Many people became in some way involved with American Communism from 1900-1950.
McCarthyism came about because of this, it seemed important to know if someone was a
communist while now it doesnt seem to matter. It matters to look at what the party did - it was
both a progressive political reform movement and a Soviet-led conspiracy. It came in many
forms and changed over time. The American CP had trouble gaining the following of Western
European Socialists. Despite its size, it became influential because it was a party of activists,
very burdensome on its members. They followed the party line that emerged from Moscow.
Changes in the 30s - capitalism was in disarray, socialism gains an audience. FDR
shifted politics to the left, CP approved. Mid-late 30s, party adopts "all-American" image, grows
in size. Gained role as unofficial left wing of the New Deal.
Stalin signs pact with Hitler and delivers a blow to American CP as it loses coalition with
American liberals. When US went to war, CP fights with it, urges saving of Soviet Union.
After the war, CP has some misguided policies and loses political support. Finally
Khrushchev describes Stalin's crimes and the bulk of the membership is gone.
Other reasons that CP was vulnerable to McCarthyism: secretive, authoritarian,
committed to defending the SU. Had trouble communicating with outsiders, kept many secretive
policies from its days when they might have been deported. Also, had an underground offshoot
at the service of the Kremlin. When Cold War started, much of the party went underground,
probably an overreaction. People tried not to admit they were communists to keep their jobs.
This secrecy didn't work though, since people found out anyway and it gave exposure as a
weapon to their enemies.
Communists had been influential though. They organized the labor struggles of the early
30s - various industries, unions, etc. They got involved in some things that didn't have to do with
labor, which may have been a mistake for them.
Communists supported racial equality - appealed to minority workers. They were
involved in struggle against racial discrimination.
They tried to get involved in the political system, but this was very unsuccessful and ate
up resources. Supported Henry Wallace for president, but he wanted to distance himself.
Suffered a crushing defeat.
CP had front groups, pushed various agendas and related to the CP. Some front groups
were part members and part non-members. National Lawyers Guild was one of these, didn't like
the current legal establishment of the American Bar Association. All of these groups came under

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fire during the Cold War and mostly disappeared.

Murphy – The Constitution in a Time of Crisis

In 1950 McCarthy made a speech in West Virginia that he held in his hand the names of 205
Communists employed in the State Department. On Congressional Record he reduced the
number to 57. in 1950 N Korean forces marched south across the 38th parallel to challenge the S
Korean government. There was public discontent about unresolved conflict, the draft, uneven
wage and price controls and mounting inflation. McCarthy exploited this by broadening
disloyalty charges. In this atmosphere it was virtually impossible to consider constitutional
questions with objectivity – overzealous security concerns in civil liberties area of law.
By late 1940’s HUAC fell victim to its own success in hitting headlines. In 1946 Senate
established Senate Investigating Committee. In 1950 McCarren, chairman of Judiciary
Committee in Senate established subcommittee on internal security of which he was chair.
Witnesses not given right to counsel and no opportunity was given to examine charges made
on dubious grounds = induced many to take the 5th on grounds that any statement made would be
used to incriminate them. Jury biased against them so felt there was not point to speak out. Many
like McCarren and his successor, Jenner, said this was sign of guilt = “fifth amendment
communists”
Vinson Court was highly aware of the loyalty security pressures of the time – prosecution of
Communists under the Smith Act. Communist leaders were not charged with a conspiracy to
overthrow the government but with conspiracy to form a party to teach and advocate the
overthrow of the government. Vinson admitted that defendant had not made attempt to advocate
bet 1945-48 and that party was too weak to succeed anyway nevertheless contended that the
clear and present danger test cannot mean that before the government may act, it must wait until
the putsch is about to be executed, the plans have been laid and signal waiting. Black dissented,
saying that the decision waters down the 1st amendment so that it amounts to little more than an
admonition to Congress. He and Douglas found themselves alone and forced to express the hope
that in calmer times when present pressures passions an feats subside, this or some later Court
will restore the 1st amendment liberties to the high preferred place where they belong in free
society.

Belknap –

-By1951 Justice Black like others grew more concerned about civil liberties. Supreme Court
came to realize that unrestrained attacks on the Community Party or (CPUSA) overstepped
fundamental freedoms and threatened American democracy far more than communism did.
-By 1957, Court was no longer the same body that decided Dennis. With the Brown vs. Bd. Of
Ed. Decision in 1954, started new goal to bring American institutions in line with American
ideals – a step that would drastically alter constitutional law. The leader of this revolution was
Earl Warren, an Eisenhower nominee. In early days as Chief Justice, Warren stood about in the
middle of the Court on Cold War issues but during the 1955 term, he moved to the left, joining
forces with Black and Douglas – he was concerned about the excesses of MCCarthyism.
Explained that the “US could succeed only by demonstrating through positive action that its
institutions were superior to those of the USSR”

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-In Nov 1954, John Marshal Harlan, grandson of another Sup Ct justice by the same name was
nominated by Eisenhower. As a true conservative, found the reactionary hysteria around the
recent anti-Communist crusade disturbing. Although some tried to justify these excesses as
useful to preserve freedom, Harlan considered their character “decidedly un-American.”
Concerned that “we shall fall prey to the idea that in order to preserve our free society some of
the liberties of the individual must be curtailed, at least temporarily…no doubt…communism
would like nothing better than to see us follow such shallow and unwise counsel…And we must
be careful that measures designed for legitimate ends are not made instruments of oppression.”
-Brennan, the third Eisenhower nominee shared the Roman faith and Irish ancestry with Joe
McCarthy – but nothing else. McCarthy was actually the only senator that cast the only vote
against Brennan’s confirmation to the Supreme Court because McCarthy worried that his
opinions would hinder the nation’s efforts to combat communism.
-In Yates vs. United States, what was the most impressive thing about that case was the fact that
the Supreme Court had already ruled on almost all of the assignments of error presented by
appellants. The principles that the Dennis opinions had laid down were virtually conclusive in
this case. Although the Court saw no new issues in Yates, the Court still agreed to review it
because it offered a way for the justices concerned with the excesses of the anti-Communist
crusade to limit the Smith Act prosecutions without having to take the embarrassing step of
directly overruling Dennis. The Court didn’t want to directly overrule Dennis.
Two avenues of approach for a judicial assault on the Smith Act – (1) whether the court below
had erred in their construction of the term “organize” (2) Smith Act punished only advocacy
employing language reasonable and ordinarily calculated to incite those hearing it to action
constituted an erroneous construction of the statute that violated the First Amendment.

Dennis vs. United States -1951

Vinson Decision
Black, Douglas Dissenting

-Chief Justice Vinson wrote the majority opinion and Justice Black and Douglas dissent in a 7-2
decision
-Purpose is to answer two questions (1) whether section 2 or 3 of the Smith Act inherently
applied in this case violates the first amendment and other parts of the Bill of Rights. (2)
whether section 2 or 3 of the Act violates the First and Fifth Amendments because of
indefiniteness.
(By the way – here is the Smith Act = section 2 says it shall be unlawful for any person to
(1) knowingly or willfully advocate overthrowing or destroying the US government (3) to
organize or help to organize any group that advocate or teach or encourage the overthrow
of the US gov’t. Section 3 says that it shall be unlawful for any person to attempt to commit
any of the acts prohibited here.)

Vinson – Majority Opinion

-The indictment charged the petitioners with willfully and knowingly conspiring (1) to
organize as the Communist Party of the US a society of people who teach and advocate the
overthrow and destruction of the Government of the US by force and violence.
-The case which extended over nine months during which the Court of Appeals held that
the Communist Party is a highly disciplined organization adept at infiltration into strategic

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positions, use of aliases and double-meaning language- that the Party is rigidly controlled
and Communists unlike other political parties tolerate no dissension and the general goal of
the Party was to achieve a successful overthrow of the existing order by force and violence.
-No one could conceive that it was not within the power of Congress to prohibit acts
intended to overthrow the Government by force and violence. The question the Court is
facing is not whether Congress has such POWER, but whether the MEANS which is has
employed conflicts with the Constitution. One of the bases that the means, which Congress
has employed, are invalid is that it stifles ideas and is contrary to all concepts of a free
speech and free press. The very language of the Smith Act negates the interpretation, which
petitioners would have us impose on that Act. It is directed at advocacy and not discussion.
Thus, the trial judge properly charged the jury that they could not convict if they found
that petitioners did “no more than pursue peaceful studies and discussions or teaching and
advocacy in the realm of ideas.” But the application of this Act in this case has resulted in
convictions for the teaching and advocacy of the overthrow of the US Gov’t.
-Majority explains however that “Speech is not an absolute, above and beyond control by
the legislature when its judgment, subject to review here, is that certain kinds of speech are
so undesirable as to warren criminal sanction. IN this case, the Court is presented with the
application of the “clear and present danger” test and they must decide what that phrase
means. Overthrow of the Government by force and violence is certainly a substantial
enough interest for the Government to limit speech. If then this interest may be protected 0
the literal problem that is presented is what has been meant by the use of the phrase “clear
and present danger” of the utterances bringing about the evil within the powers of
Congress to punish. Obviously the words do not mean that before the Government can act
it must wait until the putsch is about to be executed, the plans have been laid, and the
signal is awaited. If gov’t is aware that a group aiming at its overthrow, action by the gov’t
is required the argument that there is no need for Government to concern itself, for gov’t is
strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with
ease. Certainly an attempt to overthrow is a sufficient evil for Congress to prevent.
-The Court explains that in each case, the courts must ask “whether the gravity of the ‘evil’
discounted by its improbability, justifies such invasion of free speech as is necessary to
avoid the danger.” The Court explains that they are in accord with the court below which
affirmed the trial court’s finding the requisite danger did exist. The mere fact that from 45-
48, the petitioners’ activities did not result in an attempt to overthrow the government by
force and violence is no answer to the fact that there was a group that was ready to make
the attempt. They were convinced that their convictions were justified.
-“It is the existence of the conspiracy which creates the danger, if the ingredients of the
reaction is present, we cannot bind the gov’t to wait until the catalyst is added.”

Frankfurter-Concurring
-“The demands of free speech in a democratic society as well as the interest in national security
are better served by candid and informed weighing of the competing interests, within the
confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian
problems to be solved.”
-But who is to make the adjustments – who are to balance? Full responsibility for the choice
cannot be given to the courts. Courts are not representative bodies and their judgments are most
dependable within narrow limits. The independence of the judiciary is jeopardized when courts

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become embroiled in the “passions of the day and assume primary responsibility in choosing
between competing political, economic, and social pressures.”
-In all fairness, the defendants “clear and present danger” argument cannot be met by
reinterpreting the Court’s frequent use of “clear” and “present” to mean an entertainable
“probability”
-The complex issues presented by regulation of speech in public places, by picketing and by
legislation prohibiting advocacy of crime have been resolved by scrutiny of many factors besides
the imminence and gravity of the evil threatened. It is a familiar experience in the law that new
situations do not fit neatly into legal conceptions that arose under different circumstances to
satisfy different needs. “Not every type of speech occupies the same position on the scale of
values.”
-On one hand there is an interest in security – The jury found that the Party advocates the theory
that there is a duty and necessity to overthrow the gov’t by force and violence – a policy to be
translated into action.
-On the other hand is the interest in free speech – the right to exert all governmental powers in
aid of maintaining our institutions and resisting their physical overthrow does not include
intolerance of opinions and speech that cannot do harm although opposed and perhaps alien to
dominant, traditional opinion.
-but it is not for the Court to decide how we would adjust the clash of interests which this case
presents –Congress has determined that the danger created by advocacy of overthrow justifies
the ensuing restriction on freedom of speech. Can we hold that the first amendment deprives
Congress of what it deemed necessary for the government’s protection? All the Court says is that
Congress was not forbidden by the Constitution to pass this enactment and that a prosecution
under it may be brought against a conspiracy such as the one before the Court now.

Jackson concurring
-The “clear and present danger” test was an innovation by Justice Holmes in Schenck. The test
applies and has meaning where a conviction is sought to be based on a speech or writing which
does not directly or explicitly advocate a crime but to which such tendency is sought to be
attributed by construction or by implication from external circumstances. The formula in such
cases favors freedoms that are vital to our society and even if sometimes applied too generously,
the consequences cannot be grave.
-Believes reason is lacking for applying that test to this case. If the court is to decide that
this Act and its application are constitutional only if we are convinced that the petitioner’s
conduct creates a “clear and present danger” of violent overthrow, we must evaluate
imponderables – including international and national phenomenons which baffle the best
informed foreign offices and experienced politicians. No doctrine can be sound whose
application requires us to make a prophecy of that sort in the guise of a legal decision.
-Says this is a case of conspiracy but the constitution does not make conspiracy a civil right,
it has an established place in our system of law. He doesn’t suggest that Congress could
punish conspiracy to advocate something, the doing of which it may not punish. But it is
not forbidden to put down force or violence – it is not forbidden to punish its teaching or
advocacy, and the end being punishable, there is no doubt of the power to punish
conspiracy for the purpose.

Black dissenting

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-“I cannot agree that the 1st Amendment permits us to sustain laws suppressing freedom of
speech and press on the basis of Congress or our own notions of mere “reasonableness.” Such a
doctrine waters down the First Amendment so that it amounts to little more than a warning to
Congress. “Public opinion being what it is now – few will protest the conviction of these
Communist petitioners – there is hope however that in calmer times when present pressures
passions and fears subside this or some later Court will restore the First Amendment liberties to
the high preferred place where they belong in a free society.”

Douglas dissenting
-The freedom to speak is not absolute; the teaching of methods of terror shouldn’t be
acceptable. That is easy and it has popular appeal for the activities of the Communists in
plotting and scheming against the free world are common knowledge. But the fact is that
no such evidence was introduced at the trial. There is a statue, which makes a seditious
conspiracy unlawful, but petitioners were not charged with a “conspiracy to overthrow the
government” but the conspiracy to form a party and groups of people who teach and
advocate the overthrow of the government with force and violence. While the
indoctrination to destroy the government would be indictable the teaching is a different
issue. All the petitioners did was organize people to teach and themselves teach the
Marxist-Leninist doctrine contained in four books – “but if the books are not outlawed, if
they can lawfully remain on library shelves, by what reasoning does their use in a
classroom become a crime?” That is to make freedom of speech turn not on what is said but
on the intent with which it is said. “Once we start down that road we enter territory
dangerous to the liberties of every citizen.”
-The record contains no evidence whatsoever showing that the acts charged – the teaching
of the Soviet theory of revolution with the hope that it will be realized, have created any
clear and present danger to the Nation. Communism has been so thoroughly exposed in
this country that it has been crippled as a political force. “Free speech should not be
sacrificed on anything less than plain and objective proof of danger that the evil advocated
is imminent.”

Yates et al v. United States 1956

Facts:
Fourteen leaders of the Communist Party in the state of California were tried and
convicted under the Smith Act. which prohibited willfully and knowingly conspiring to teach and
advocate the overthrow of the government by force. The constitutional issue was whether the
Smith Act violated the First Amendment?
Decision (Harlan):
In a 6-to-1 decision, the Court reversed the convictions and remanded the cases to a
District Court for retrial. The Court interpreted the Smith Act in the following manner: First, the
term "organize" was construed to mean the creation of a new organization, making the Act
inapplicable to subsequent organizational acts. Second, the Court drew a distinction between the
"advocacy and teaching of forcible overthrow as an abstract principle" and the "advocacy and
teaching of concrete action for the forcible overthrow of the Government." The Court recognized
that instances of speech that amounted to "advocacy of action" were "few and far between."
The dissenting opinion was not included in the sourcebook.

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Watkins v. United States 1957
Facts:
In 1954, John Watkins, a labor organizer, was called upon to testify in hearings
conducted by the House Committee on Un-American Activities. Watkins agreed to describe his
alleged connections with the Communist Party and to identify current members of the Party.
Watkins refused to give information concerning individuals who had left the Communist Party,
arguing that such questions were beyond the authority of the Committee. Did the activities of
the Un-American Activities Committee constitute an unconstitutional exercise of congressional
power?
Decision (Warren):
In a 6-to-1 decision, the Court held that the activities of the House Committee were
beyond the scope of congressional power. The Court held that both the authorizing resolution of
the Committee and the specific statements made by the Committee to Watkins failed to limit the
Committee's power. The Court found that because Watkins had not been given sufficient
information describing the relevance of the questions to the subjects under inquiry, he had not
been accorded a fair opportunity to determine whether he was within his rights in refusing to
answer. The Due Process Clause of the Fifth Amendment thus invalidated Watkins' conviction.

Sweezy v. State of New Hampshire

Facts:
Paul M. Sweezy was subpoenaed in January of 1954 by New Hampshire Attorney
General Louis C. Wyman, who was charged with the tall order of fighting communism within
the state. Sweezy was charged with “subversive activities,” primarily because of a lecture he
gave on Marxism at the University of New Hampshire. Sweezy refused to answer questions
about his political orientation and that of his colleagues and was convicted of contempt for the
court.
Decision (Warren):
In the 1957 decision, Warren overturned Sweezy’s conviction, sighting the political
freedom of the individual as “a fundamental principle of a democratic society.” Furthermore,
Warren noted that the court could not “conceive of any circumstance wherein a state interest
would justify infringement of rights in these fields.” All justices concurred, with the exception of
Justice Whittaker, who abstained, and Frankfurter and Harlan offered a separate concurring
opinion.

Powe Chapter 4: Domestic Security p.75-103

Before Brown I and after Brown II cases involving domestic security and fear of Communist
infiltration dominated the Court docket.
The domestic-security program in the US was, in fact, several programs functioning primarily at
the federal level and using both criminal and civil sanctions. The civil domestic security program
had three features:
1) Loyalty investigations by the federal gvt. with the purpose of weeding out security risks
(i.e. those described in my sourcepack section above)

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 2) Legislative investigations by congressional committees whose purpose was to publicly
brand individuals as communists or former communists (who then often lost their
employment and friends)
3) Loyalty oaths required of public employees, especially teachers
~Fear was an important factor! Trials of Alger Hiss and the Rosenbergs showed the nation that a
communist would sell out the US, and so the underlying premise of this program was that
communists were far more prone than any other Americans to have loyalties to Moscow and it
was not possible to sort the benign communists from the malignant ones.
~Since 1932 Dems had labeled Repubs as uncaring and heartless, and the Repubs saw their
chance to increase their popularity by portraying democrats as closer to Communists. Therefore,
any challenge to the constitutionality of the domestic-security program was a challenge to the
future of the Republican party.
~McCarren Act- looked to force every communist organization and then every communist to
register with the Subversive Activities Control Board, whereupon that person would be banned
from gvt., defense, or labor union employment. (essentially made it illegal to be a Communist
Party member).
~In 1951 the Court sustained the greater part of the federal domestic-security program, all but the
McCarran Act, legislative investigations, formers members, and fellow travelers, who lived in a
legal netherworld. HUAC held hearings whose purpose was to expose witnesses as former
communists. Denial lead to a perjury charge, pleading the fifth was classified as a backdoor
admission of guilt. The fact that members of the Communist party gave their loyalty to Moscow
and not Washington distinguished them from Dems, Repubs, or even Socialists, and justified the
domestic-security program.
~1954- Barsky v. Regents, first domestic-security case Warren court heard, involved NY
punishing a recalcitrant HUAC witness. Barsky headed a communist organization, refused
demands of HUAC, unsuccessfully challenged its constitutionality, spent 6 months in jail and
then faced 6 month’s suspension from his medical practice. The Court affirmed Barsky’s
suspension from the medical field over dissents by Black, Douglas, and Frankfurter. Dissenters
argued that, in clear violation of the 1st amendment, Barsky was being denied his right to earn a
living bc of his political associations.
~1954- Galven v. Press, argued that McCarren Act should be changed to only affect those who
knew of and supported the unlawful aims of the Comm. Party, and that the Act was
unconstitutional in its present form. Black and Douglass dissented
~1955- Peters v. Hobby dealt with Dr. John Peters, professor of medicine at Yale who was really
not a Communist nor associated with the party. After having proven his innocence on an ishload
of evidence in a hearing, the Loyalty Review Board reviewed the case and found there was a
reasonable doubt as to his innocence. In warren court, Peters won, but on a technicality, real
issues never dealt with. So at this point in time, the loyalty-security program had been pretty
much left alone.
~Then Brennan replaced Minton. Brennan was (disappointingly to Eisenhower) not a
conservative Democrat but a liberal. When he joined, he added a fourth vote to the threesome
formed by Douglass, Black, and eventually Warren. Change not immediate or complete but
significant. Changed the court’s balance in domestic-security cases, and the tilt was even more
pronounced after Reed retired in February.
~In Ullmann v. US, Pennsylvania v. Nelson, Slochower v. Board of Education, Communist Party
v. Subversive Activities Control Board, and Cole v. Young, the Court issued opinions that went

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against the gvt and its national security practices, even though they focused on technicalities and
not issues.
~Douglass’s dissent focused on the realities of forced disclosure for an individual even in the
absence of a threat of prosecution. Legal realist school. Constitution places the right of silence
beyond the reach of government.
~There was a new attack on the Court, and it had three strands:
i. Justices went the extra mile to protect communists.
ii. Justices undermined the states
iii. Justices weren’t good lawyers and that explained their difficulties in properly
interpreting the Constitution
~Bar Admissions Cases- In 1957, in Schware v. State Bar and Konigsberg v. State Bar, the court
questioned the bar’s complete control over qualifications and held that a former communist
could possess the requisite good moral character to become a lawyer. Frankfurter dissented with
Harlan and Clark.
~Red Monday- On June 17, 1957, the Court handed down an ishload of extraordinary decisions
severely restricting the Smith Act, suggesting that communist-hunting legislative investigations
were unconstitutional, and invalidating the loyalty dismissal of John Stewart Service. One
decision was unanimous, 2 had solo dissents, which means they were for the most part
uncontroversial among the court. The cases were Yates v. US, Watkins v. US, and Sweezy v.
New Hampshire. In Yates, the first time the court would evaluate the necessary proof in a Smith
Act case, the issue of the line between constitutionally protected speech and punishable speech
was addressed.
~The Court faced renewed attacks after all of these decisions, even from President Eisenhower.

The Supreme Court Reconsiders; By Michael R Belknap

This article recounts the Warren Court’s doctrinal shift on McCarthyism and the Smith
Act from the Dennis decision in 1951 to Yates in 1957. Belknap opens his article with a brief
biographical summary of the court, focusing on the five justices who composed the strong
majority against the Smith Act during the Warren Era. He presents Justices Black and Douglas as
consistently and vehemently against the Smith Act for its infringement upon the First
Amendment. Warren is portrayed as moderate until 1955, when he decided to join forces with
Black and Douglas. Harlan believed that McCarthyism was firmly un-American, as did Justice
Brennan.
In 1955, with a sufficient anti-McCarthyism majority in place, the public began
pressuring the Supreme Court to overturn the ruling in Davis. The Supreme Court began granting
appeals when accusations of perjury surfaced with regards to the previous anti-Communist trials.
Several appellants were granted new trials due to errors in their original cases. However, the
largest case, Yates v. United States, did not have as many blatant errors. Thus, the appellants had
to be more creative in their appeals so as to provide sufficient technical avenues through which
the court may challenge Dennis. The appellants argued that the judge in the case incorrectly
defined the word “organize” and failed to distinguish between words that promote action and
words that promote thought. The Supreme Court agreed with the appellants, and Justice Harlan’s
decision, though it did not overturn Dennis, safeguarded the First Amendment against the Smith
Act. As Clark conceded in his dissent, the decision in Yates v. United States effectively rendered
the Smith Act obsolete.

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 Though the decision in Yates v. United States effectively restored the sanctity of the First
Amendment, much of the damage of McCarthyism could not be undone. The McCarthy Era
destroyed the CPUSA, stifling political dissent in the process. In addition, the period of anti-
Communism stimulated the growth of the FBI and the ISA, two agencies that proceeded to target
other radical groups once communism was no longer seen as a threat.

Thirty Years of Treason; Edited by Eric Bentley

This article will probably no prove very useful in studying for the final. It merely consists
of excerpts from hearings before the House Committee on Un-American Activities. This section,
entitled “The Infiltration of Harvard,” focuses on Communist activities in the Harvard academic
community. The first witness, Daniel J. Boorstin, was a student at Harvard and was involved in a
Communist group run by several Harvard faculty. In an oddly disloyal move, he names two of
his former roommates as fellow communists. He further explains that he is no longer a member
of the party, having “grown up” and realized that the doctrines of the Communist party do not
make much sense. He speaks rather strongly toward the end of his testimony about his conviction
that members of the Communist Party should not be allowed to teach in American schools
because they are not “free intellectually,” perhaps implying that most communists are in fact
brainwashed. It’s a fun and quick read, but likely won’t help in preparation for the final exam.

Sourcepack p. 425-453 bentley from pete seeger to the end

This section of the sourcepack is essentially outlining in explicit detail the manner in which
American citizens were brought before the Committee on Un-American Activities (HUAC),
interviewed regarding their political affiliation with the Communist party, and evaluated on their
“Americanism” in a wholly undemocratic practice implemented during the years following
world war II in which the United States was paranoid about the spread of Communism.
McCarthyism and a hyped-up perception of the dangers of Communist infiltration clearly
prompted the country to lose sight of its democratic principles.
The section begins in August 18, 1955 with the interview of Pete Seeger, who had served in the
Armed Forces and was now a self-declared “banjo picker” in New York. He was grilled mainly
about his performances at places which were suspected to be sections of the Communist party,
and other music sections of the cultural division of the Communist Party and performing
Communist songs. Basically they were trying to ascertain if “the special contribution that he was
expected to make to the Communist Party was to use his talents by entertaining at Communist
Party functions.” Note the use of the 5th amendment in this section, Seeger was repeatedly asked
if he was relying on the 5th Amendment as a validation of his right to refuse to answer the
questions of the Committee, and he answered no, he simply “feels it is improper for the
Committee to ask such questions.” The truth is that by answering any one of the Committee’s
questions, he had already foregone his right to plead the 5th. But he continued to not answer the
questions posed by the Committee when their answers would incriminate him as a Communist.
They badgered and borderline harassed him into tripping over his words and admitting that he
had sung for everyone and then suggested that everyone included Communists. It got to the point
where Seeger just kept repeating “My answer is the same as before” (which was that he wasn’t
going to answer) as the Committee threw evidence at him hinting at his connection to the
Communist Party. (He was sentenced to a year in jail but appealed his case successfully.) Also,

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Millard Lampell’s article “I Think I Ought To Mention I Was Blacklisted” was in this section of
the course pack, in which he described his experience being blacklisted as a Communist during
McCarthyism from 1950-1960 in his industry due to his association with Seeger’s folk-singing
group, and the accompanying loss of salary and social alienation.
Arthur Miller’s experience with the Committee was also described in this section. (If you
remember, Miller is a contemporary American author and has written classics such as “Death of
a Salesman” “Crucible”.) On June 21, 1956 he was interviewed extensively by the Committee
regarding his Communist affiliation. Unlike Seeger, he was frank about his contributions to front
groups, Communist causes, etc. but he continued to deny having ever been under Communist
Party discipline. Through the interview he came to the conclusion out loud that it “would be a
disaster and a calamity” if the Communist party were to take over the country, but he claimed
that he had to thoroughly explore the Communist theory in order to come to this conclusion, and
the Committee responded by saying, “You have learned a great deal and made a greater
contribution to what we think you now stand for than you realize, because, by the errors that you
committed, you are serving a very loud note of warning to a lot of other people who might fall
into what you did.”

Secrecy and Power By Richard Powers

• This excerpt sets the scene in which the McCarthy era cases were decided with a focus on
J. Edgar Hoover, Director of the FBI
• Hoover viewed communism as a very dangerous threat, and having established himself as
the nation’s premier domestic security agent he thought it his duty to combat it
• Hoover was very concerned with protecting himself against public criticism for inaction
(like happened to some after Pearl Harbor), but he was also an extreme moralist
• Though sometimes perceived as a bit off the deep end, Hoover’s fears were at least
somewhat based in a rational viewing of world events (keep in mind that communists
themselves were preaching the inevitability of the spread of communism—Hoover was a
serious person
• Hoover enjoyed a good working relationship with FDR, but grew to hate Truman (who
he believed did not take the threat seriously), and was very loyal to Ike (even eventually
at the expense of his long time friend, Joe McCarthy)
• Hoover’s most important prosecution during the Truman years was the leadership of the
communist party under the Smith Act in 1948-49—this set judicial precedent for use of
Smith Act and was a powerful weapon for Hoover and other “Red-Hunters”
• Other notable cases that Hoover was involved in were the Alger Hiss trial and the
Rosenberg trial, both of which were convicted under somewhat shady circumstances
• Hoover turned against McCarthy when McCarthy accused members of the army of being
communists—this was essentially a show of loyalty to Ike

Conduct Unbecoming by Randy Shilts

• This excerpt discusses the McCarthy era purges of homosexuals from federal
employment
• This type of activity was routinely justified to the public in the name of national
security—the idea was the communists and others could more easily blackmail gays b/c
they had something to hide—evidence indicated that this was pretty much bullshit

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 • Neither Ike nor Hoover really believed this, but both found it politically expedient—Ike
knowingly employed lesbians in his personal staff and Hoover was gay himself
• Author argues that main reason Hoover was so intent on shutting gay rights organizations
down was to protect the secret of his sexual orientation and his relationship with
Associate Director of FBI Clyde Tolson

WEEK 7

Lecture 1 November 2004

McCarthy identified with de-legitimating the New Deal
Arthur Miller wrote The Crucible during the McCarthy trials – really about the
contemporary witch hunt, and HUAC went after him. They told him that if he let them
take his wife (Marilyn Monroe) to a photo shoot with HUAC members, they would let
him off the hook. He refused, was convicted, and his conviction was overturned by the
court of appeals.
--- begin M. Horwitz tangential ramble ---
J. Edgar Hoover & Clyde Tulleson = Heads of FBI and almost certainly lovers (accepted
as historical truth). The FBI was an intensely gay-bashing organization. . .hmm. .
Roy Cohn – one of McCarthy’s hatchet men. Also gay. Seems odd that during the ‘50s,
so many of the gay bashers were gay themselves.
--- end tangent ---

Konigsberg v. State Bar of CA – 1957

Warren, Black, Douglas, Brennan = liberals
On Red Monday, Clark, Harlan, and Frankfurter joined them.
In this case, Black got 5 votes and struck down Konigsberg’s refusal of admission to the
CA bar. Konigsberg was refused b/c he wouldn’t talk about his past politics.
Very narrow decision – Black’s opinion said there was no indication that the refusal to testify
was relevant, and it was “impermissible to draw negative character inferences from that fact”
Case remanded to CA authorities.
Harlan dissented (also in NAACP v. Button) – resistant to Court meddling in state’s
lawyer matters.

Konigsberg v. State Bar of CA (II) – 1961

Case comes back.
Harlan and Frankfurter came down from 1957 – stepped back and refused to go further.
Formed a bloc with Clark and White refusing to strike down any laws dealing w/
anticommunist hysteria.
Black said, same case we had in ’57, but Harlan is writing the opinion for the other side
The Court reversed every major point from Konigsberg I. Gutted it.

Scales v. US – 1961
It was thought after Yeats that there would be no more Smith Act convictions, but that
was wrong. . .
Harlan writes about federal Congressional investigation without really discussing

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 Watkins – strange. Harlan and Frankfurter take the view that they were going too far in
1957 and need to draw back.
Black dissents.

Barenblatt v. US – 1959
Black’s dissent has his opposition to balancing tests.
From Sweezy, seems like you can frame a balancing test any way you want. Same thing
in Konigsberg II and Barenblatt.
Frankfurter and Harlan engage in balance tests. . . balancing the 1st out of existence?
Black tries to defend his absolutist opinion of 1st:
“balancing away 1st Amendment freedoms”
clearn & present danger doesn’t apply here. . .
ideas accepted in the “market place”
Dennis wasn’t a balancing test, it was a dilution of clear & and present danger
3 positions:
1. Absolutist – Black’s idea
2. Holmes & Brandeis free speech test elaborated in Schenck. Imminent and substantial
danger.
3. Vincent’s recasting of clear and present danger via Dennis
Barenblatt – contest over how to formulate the 1st

Speiser v. Randall – 1958

Very technical opinion
Building block for Brennan’s interpretation of the 1st.
Brennan wrote the opinion – his 2nd important one
CA gave veterans a tax break if the signed a loyalty oath
Brennan tales a lesser, “supposing you had the power” approach.
CA can’t separate legitimate from illegitimate speech
Abstract vs. practical advocacy
Due process requires that state bears the burden of proof
“the man who knows that he must bring forth truth and convince another. . .”
Chilling effects doctrine – line that encourages a wide berth is limiting legitimate speech
There’s a switch from 1961 to 1963 when Goldberg replaces Frankfurter
ex. NAACP v. Button – 1963
Gibson v. FL – 1963

November 3rd Week 7

Effects of Bush on the current supreme court.
1 all but two current supreme court justices may be replaced in his term
2 he supports Scalia and Thomas who are anti row vs. wade
3 Reverse of the advancement of 14th amendment right
4 Voting rights act of 1965 may be named unconstitutional due to the narrow view of
section 5 of the 14th amendment
5 constraints on this extreme constitutional revolution
o senate and confirmation power, forcing bush to compromise appointments, but the
republican majority is near filibuster proof

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WE will focus on in this lecture:
a. First amendment doctrine development on a constitutional law perspective
- Focus on internal constitutional doctrine of NAACP vs. Button one of Brennin’s most
important
5 NYtimes vs. Sullivan- cases that seemed to be just about the press and the 1st amendment
are actually really about race- Now in a more narrow context of an important step to
develop freedom of speech and libel doctrine
6 Brennan is responsible for the robust 1st amendment doctrine of the Warren court

b. Rights of association
- NAACP vs. Patterson
- Gibson vs. Florida
- How does constitutional law work?

1. NAACP vs. Patterson 1958

Harlan recognizes more expansive right to association beyond what is recognized in the
constitution- right to petition, assembly made generic right of association
7 How robust it this new right to association?
o Look at the review of communist cases as well as civil rights cases.

A. When does the first amendment shield of freedom of association protect alleged communist
organizations?

Gibson vs. Florida- point- extends right of association closer to communism than it had ever
come
on pg 506- background- standard naccp vs. Alabama with a twist
Miami-Naacp is being forced to disclose lists of members to see if it has been taken over
by communists
8 This is different then in Alabama because here it is the case that the government is
actually trying to protect the organization from being taken over by communists
9 Two ways of looking at this-1.Are they still just trying to break the Naacp and
communism is just a way to get the lists? or 2.Is this a completely different case from
Alabama, a legit-constitutional justification for looking at membership list.
10 1961 5v 4 vote- court upholds Florida and allows the court to hold in contempt someone
who refuses to turn over the membership lists if inquiry is about communism.- therefore
court doesn’t see problem as one of busting naacp, only as one of communist infiltration

Justice goldberg’s 1963 opinion striking down this punishment-

Justification
1. New framework- rights of association are protected in 1st and 14th amendment
Citing naacp vs. Alabama- privacy of association
But- state has power to intervene to protect its vital interests (Watkins and
barenblatt) BUT- this legislative power is not without limit
2. he doesn’t even talk about the communist party- so he doesn’t have to deal with that
issue at all

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 3. deeply equivocal as to how far the right of association is extended
4. GOLDBERG- before Goldberg the court would not have voted this way and didn’t-
he impacted the court by getting the ball rolling on rights of association, but not
enough power to get the court to accept full protection of communist party

Sourcebook pg 509- goldberg- “constitutionally protected organization”- means not the

communist party- “chilling effect” on free expression – first time appears on majority opinion

BRENNAN- develops chilling effects doctrine even though Goldberg introduces the term in
Gibson

NAACP vs. button on pg 226-

Virginia is trying to use its control over the legal profession to impose punishment on
naacp for “ solicitation” of plaintiffs on desegregation cases
1. supreme court says barring of solicitation is not a legal activity
2. “ the void for vagueness doctrine” – leading to it- brennin- does 1st have a preferred
position in the constitutional scheme- or is there a balancing test with it? ( black rigid
absolutism against balancing test vs. frank with subjective balancing but there is no
saying what gets puts on the scale)

Brennan introduces 4 new concepts on the 1st amendment issues

1. “ chilling effects” + “ void for vagueness”
a. chilling- effects- steer far clear of the impermissible speech- don’t get even
close to what may be considered wrong- all of your constitutionally protected
rights up to unlawful zone are being chilled- be careful of what you say even
when constitutionally protected because the law is too vague….punishes both
constitutionally protected and not protected- if line is ambiguous people wont
get too close
b. void for vagueness-
This is where he ends

November 5th
We are the last generation who will know that the color red refers to the left.
“chilling effects”- part of Brennan’s way of not challenging the theoretical power of
congress. Brennan concedes ends of congress ( nvestigate and regulate quality of legal
profession) But does question the means and criteria of regulations. Brennan doesn’t get into the
abstract question of congressional power, just the unconstitutional way it is exercising this
power.
11 vagueness and over breadth- don’t want a statue susceptible of sweeping and improper
application- first amendment freedoms need breathing space to survive

Warren on over breadth pg 536- Robell- back ground- court no longer feels threatened- a
member of the communist party cant be deprived of the right to work at a defense plant. Guy
works at plant knowing that there is an order to report that you are a member of the

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 communist party-
Pg 536 column 2- precision of regulation is the most important (button) – Robell is wrong
because law indiscriminately captures passive and inactive member of organizations or even
if he is personally in disagreement with many of the groups major policies.
12 active vs. inactive membership
13 even if this person could be proven to be malicious and active- the law is far too broad
and includes those anonymous people who’s constitutional rights are being chilled.
Brennan’s reformulation of the frame work of judgment to those anonymous in the public
led to the raising of claims in the public interest for those who were being chilled not just
their own speech and association.

Brennan- before he was appointed to supreme court called McCarthyism a witch hunt and really
reversed the feelings of the court.

II- Symbolic speech and the first amendment

a. vs. justice blacks first amendment philosophy
Black’s absolutist first amendment- wants nyt standard to be a protector of 1st amendment free
speech rights- real life affects of this are seen in the difference of editions of bill Clintons
memoirs that had to tone Clinton down when they wrote in the book in England because of the
stricter libel laws.

Black- concurs in nyt- on the grounds that there is no balancing test.

Barenblatt case- black is dissent- balancing test has the category error( only balances right of gov
to protect itself against defendant’s right to refrain from revealing communist relation- mistakes
real categories to be weighed) doesn’t take into account the public’s right to speak our minds
which is in the greatest interest of society as a whole.

Black after Dennis becomes obsessed with killing the balancing test- the balance is a code word
for upholding any governmental plan.
B. Problems with Black’s Absolutist 1st amendment analysis-
.O’brien case on 541 and Tinker vs. Desmoines
1.Obrien- in a public display burned his draft card- is it protected by 1st cause it is symbolic
speech? Warren in opinion- Upholds law and says that speech is not constitutionally protected
because when you have both elements of speech and action mixed together the constitution says
you can regulate the action even if it interferes with the speech. Therefore govt can always
regulate symbolic speech as it is the very definition of symbolic speech that one is acting.
a.These 1968 decisions are based on the political atmosphere of time and Warren delivers
uncharacteristic rulings- this decision is explained by the recognition of the court that 1. the
nation is become more conservative 2. that Nixon is running against court 3.reverential
patriotism

2.Tinker- are students in public schools protected from being required to take off their black
protest armbands? Black shifts from the libertarian side of the 1st amendment to a back door
escape

In both of these cases Black says- Easy decision- this is action not speech and the constitution

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doesn’t protect action, just speech. Black sees a bright line that separates acts form speech- this
is his escape form the absolutist view.

-Brandenburg vs. ohio 557- an important symbolic moment- on almost the last day of the
warren court- can the kkk of Ohio be prosecuted ( applies old communist protections) court
strikes down ruling and says Holmes brandies position says that these acts and symbolic speech
and are protected. Saying Holmes and brandies dissent is now the real majority.

14 last days of the warren court- Nixon is trying to find dirt to force off liberal justices-
found that justice Fortass was a director of a board of an organization that was run by the
kkk and the justice was given a lot of money by the kkk guy, so Fortass leaves, but
Brandenburg is the last moment of the warren court because the real warren court
ends when Fortass leaves- They end with a of support the clear and present
danger statute as the measure of constitutionality.

Next: examining loyalty cases with a distinction between citizens and resident aliens.

Konigsberg v. State Bar of CA (1957)—Konigsberg I

• Black writing for majority; Frankfurter, Harlan and Clark dissenting
• Konigsberg was denied admission to the CA Bar even though he had passed the bar exam
b/c he refused to answer questions directed at whether or not he was or had been a
member of the communist party
• Majority holds that the bar assoc. is not justified in denying him admission simply b/c he
refused to answer the questions and that he had adequately proved he was of good moral
character
• Frankfurter dissented on jurisdictional grounds (federalism) and Harlan and Clark dissent
based on both federalism and b/c they interpret Konigsberg’s refusal as an obstruction to
a lawful investigation

Speiser v. Randall (1958)

• Brennan wrote for majority; Clark dissents
• Veteran refused to sign a loyalty oath on CA tax form and was denied tax exemptions
solely for that reason
• Majority holds that this is unconstitutional b/c it violates due process by unfairly placing
the burden of proof on the citizen to prove loyalty
• Clark dissents b/c he does not believe that this violates due process b/c a tax form is not a
criminal proceeding

Learned Hand: The Man and the Judge by Gerald Gunther

• Discusses the Jenner-Butler Bill (1958), which would have dramatically curbed the SC’s
appellate jurisdiction in reaction to recent SC rulings
• Supported by northern conservatives and southern segregationists, this bill marked the
high water mark of congressional hostility toward the Warren Ct
• Narrowly defeated in Senate 49-41, but message was heard anyway

Konigsberg v, State Bar of CA (1961)—Konigsberg II

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 • Harlan wrote for majority; Black, Warren and Douglas dissent
• Konigsberg once again denied admission to CA Bar after refusing to answer same
questions as before, this time b/c he was interfering with a proper investigation into his
background
• Majority (perhaps in wake of Jenner Bill) upholds the denial of admission
• Black, Warren and Douglass dissent b/c there is no rule in place in CA law or bar assoc.
procedure that someone can be denied for simply not answering questions
• The dissent also criticizes the evisceration of the “clear and present danger” test that
occurred in Dennis v. US

Barenblatt v. US (1959)
• Harlan writes for majority; Black, Warren, Douglas and Brennan dissent
• An instructor at Vassar is convicted for contempt of Congress for refusing to answer
questions about communist involvement
• Majority argues uses balancing test established in Dennis and argues that just b/c
education is involved does not mean there are special protections to speech
• Dissent is characteristic of Black’s strict view of First Amendment protection and House
Un-American Activities Committee is criticized for serving a purely judicial function

Uphaus v. Wyman (1959)

• Clark writes for majority; Brennan, Warren, Black and Douglas dissent
• Conviction of a New Hampshire individual for contempt (for refusing to disclose several
documents—including a list of ppl who attended a summer camp) is challenged on due
process and First Amendment grounds
• Majority upholds conviction and sentence based on balancing test—also worth noting
that this gave states and not just nat’l congress right to investigate subversive persons and
activities
• Dissent focuses on the idea that exposure for the sake of exposure is not justified and
causes subsequent abuses to First Amendment protections

Constitutional Law by Gerald Gunther

• This excerpt discusses the case of Scales v. US (1961) where Harlan writes for majority
and Black, Brennan, Warren and Douglas dissent
• Essentially this decision upheld the membership clause of the Smith Act and the
conviction of Scales for involvement in a communist organization
• Dissent once again objects to balancing test
• Case is compared to Noto v. US (1961) where a similar conviction was reversed due to
lack of evidence of “advocacy of action” (unlike Scales)

Gibson v. FL Legislative Investigation Committee (1963)

• Goldberg wrote for majority; Harlan, Clark, Stewart and White dissent
• President of Miami NAACP refused to provide membership lists to a committee
investigating communist activities and was convicted of contempt
• Majority reversed this conviction based on “chilling effects” doctrine and argued that this
case was different from previous cases b/c the president of NAACP himself was not

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 accused of being a communist, but others in his organization and b/c committee had not
established any connection b/w NAACP and communism
• Dissents focused largely on infringement of state rights
Illustrates solidification of liberal majority with replacement of Frankfurter by Goldberg

“Florida Reviews an Era of Fear,” NYTimes, 7/4/93

Florida’s “Johns Committee” waged assault on suspected communists, civil-rights leaders and
homosexuals from 1956-1965. Included intrusive investigations of hundreds of Floridians’ sex
lives, a network of informants, and use of intimidation tactics. Focused on college campuses and
civil rights movement; created an atmosphere of fear that results in resignations and dropouts.

WEEK 8

November 8 Lecture
Diversity and pluralism, Loyalty and disloyalty- What are the definitions of these and what is
special/different about the Warren Court’s views on these American themes?

The Warren Court seems to be able to tolerate a relatively high level of disorder and
disobedience.
From 1958-1967 the Warren Court struck down statutory provisions that permitted or required
loss of citizenship.
This pattern began with the 1907 Expatriation Act involving an oath to a foreign state and
marriage to a foreign man.
Behavior during the period 1940-1952 adds to this trend-
On topics such as voting in foreign elections, deserting, obtaining foreign citizenship, and
violation of the Smith Act, the Warren Court continued in this direction.
Trope v. Dulley was a 5-4 decision
It involved Loss of citizenship as punishment for desertion being classified as cruel and unusual
punishment under the 8th Amendment
On the same day, the next case was decided:
Paris v. Brownell, which was also a 5-4 decision
In this decision it was decided gvt. can strip citizenship for voting in foreign election
Warren’s dissent expressed his view that citizenship is a right that Congress has no power to take
away, only means expatriation = voluntary relinquishment, this view was eventually upheld

After 1963, there was no expatriation:

Leaving the country in a time of war to avoid the draft = no expatriation
Effroyem v Rusk (sp?)– no expatriation for voting in foreign election- must give up citizenship
voluntarily
Acts of dual loyalty are not equal to voluntary relinquishment
So:
New possibility of multiple loyalties, citizenship was not such a big deal until the 14th
amendment but once it was, dual loyalty was against people’s philosophy
Warren Court had a new reign of complex loyalty

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Melting pot changed after Brown v. Board
Emergence of identity politics # emerges from view of blacks as cultural group different from
White America
So how to be inclusive and have a strong and meaningful definition of American citizenship?
American citizenship is consensual, you take an oath to Constitutional idea of citizenship as
voluntary, and this puts an emphasis on the intellectual parts of being an American citizen #
chosen citizenship, whereas in other nations it’s blood that determines citizenship i.e. the Greeks
in the American Revolution = idea only with homogenous citizenry
Republican idea- people are connected for the purpose of subordinating to their community and
the needs of the group as a whole. Parties over rights and liberalism, individualism over
pluralism. (These battle it out through history)
Republican idea- they were very much for homogenous populations
It seemed unimaginable to have diverse population called a nation
In the course of the 19th century, rights began to gain a duty
Go to 20th century for diverse free government
Jackson’s opinion- In West Virginia v. Barnett, he acknowledges diversity, Federalist 10 tolerant
view, the cost of snuffing out is too great, he celebrates diversity as a distinctive American trait,
seen to be a good thing
Slowly moved more towards the view that diversity and dual loyalty are not only acceptable, but
part of rich culture
Spheres of loyalty many intermediate loyalties that don’t contradict allegiance to state
Idea of Jackson becomes “operational reality” for most justices

~To what extent are unity and diversity incompatible?

Maximum diversity is not compatible with the nation
How do you create cohesive nation while having diversity at the same time?
Often dealt with in narrow xenophobic winner
The basis on which unity was nurtured was intolerance and xenophobia
Difference between inscriptive and consensual elements in citizenship
American ideal- consensual and chosen
Inscriptive- blood, other factors ties assure more homogeneity

2nd set of cases strike down most restriction on alien employment

Grayen v. Richardson = high water mark
1971- SC was sued, strict scrutiny extended to aliens, as a class we’re a prime example of a
discreet and insular minority.
Restrictions in admissions to bar and notories struck down
Exceptions for positions intimately related to democratic self government, much larger space for
aliens, in Grayen v. Richardson you can get public housing assistance even if you’re an alien
These cases made citizenship less special in the eye of the law, but the SC under Rehnquist
would reverse this trend
Here are two varying fault lines that represent differences in community in their fairness to
outsiders:
Policy and ideals of the community
Duties to community were different between cities and non cities, senses which were only going
to grow with time were anxiety about forgiveness, and anxiety about cultural differences.

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~Cruel and unusual punishment
Certain clauses can be dead letters if not cited, the 8th amendment talked about in a handful of
prior cases, but the basic idea was that torture and other things are cruel and unusual, but it never
occurred to anyone that it was broader than torture
Then in 1958 Warren says expatriation is cruel and unusual punishment because he could make
the case that this was a horrible result for someone to experience.

Robinson v. CA in 1963- involved the punishment of drug addicts to their addiction, and this was
also classified as cruel and unusual punishment because addiction is a status, not always a chosen
one. Cruel and unusual involves disproportionately affecting someone in a way incongruous with
their offense. SO mega sentences for small crimes was then considered cruel and unusual.
This applied to capital punishment for rape in the southern states. Virtually all capital
punishment was imposed when black men raped white women, and it was classified
disproportional to sentence to death for rape

In 1972 Furman v. GA ruled that capital punishment violates the 8th amendment, the groundwork
for this decision was laid by the Warren Court when
Goldberg wrote a memo raising the idea that it is cruel and unusual even before the end of the
Warren Court.

The 8th Amendment was brought to life by the Warren Court, reflecting the popular notion that
they were judicial activists
Given the way a very complex state and judiciary works, disproportionately not being appealed
led to outrageous aberrations, if no jail have to accept injustice

November 10th Lecture: Right to Privacy

This issue is brought forth to the court in the form of a doctor’s right to give contraceptive pills
to a married patient in the case Griswold v. Connecticut

Olmstead v. US is contrasted with Schloe v. US (sp?)

Olmstead- 1928 is wiretapping illegal search and seizure?
Taft held that wiretapping was not within the 4th amendment because the amendment does not
explicitly forbid what was done. Technically, there was no search, and no seizure, literalist!
In the next paragraph, he explains that telephone intervening wires not part of home or office
because they are on live public highways. He doesn’t apply these wires to the amendment
because they were not contemplated by the framers. Brandeis’ dissent states that they should not
be confined to the form that evil has taken so far
Constitution approach of immortality requires the constitution to describe not what has been but
what may be, “time works changes”

Kilo- have investigated with thermal imaging device, high intensity lamps for the detection of
pot, the question is, is this categorized as search and seizure?
Scalia- it would be foolish to contend that technology doesn’t affect the interpretation of the
constitution

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Surprise- originalism has to mean some version of you take a snapshot of 1971, meaning for all
time you must “tie judges to the mast of history to make them conform to this reading of the
constitution” which is really a rather absurd thought
It is possible to say he was bound by principle, not intent, in making this decision
What happens when you move to this generality is that you leave it to the care of future
generations as to how u apply general principles of the constitution.
If you take technological changes into account, why would you abide strictly by the word of an
outdated constitution?
Of changes in most institutions, values, changes in conception of the idea of equality itself, why
should you be stuck with any framing from 1791?
If you’re going to give vital meaning isn’t this basically allowing a broad interpretation by the
back door?
“The only way originalism can avoid absurdity” is to move to a more general level of
understanding of 1791’s text in terms of principles, once you do this you have left change in
once you move to that level of abstraction, you’re opening yourself up to discretionary reading of
the Constitution.
History of the Contraceptive Pill-
Griswold 1965 not controversial then from the perspective of policy, all 9 believe that the
Connecticut statute prohibiting it is something of an anachronism, as does public opinion
1945 Gallup poll- would you approve or disapprove of having pill info for married people?
62% approve
22% disapprove
1959 Do you think info should be available to anyone who wants it or not?
Should 73%
Should not 14%
Don’t know 13%
(By the way these are a real measures of cultural assimilation of Catholics since
Majority of Catholics favored birth control)
There is virtually no poll consistency for anti-birth control in 1965

Comstock Act to prevent birth control info in the mail

Suppressed information, and Margaret Sanger begins the battle for feminism and birth control, it
becomes generalized when Eleanor Roosevelt joins
1933 and 1936, Const. interpreted not to cover distribution of contraceptives to married women
(meaning that IS allowd), so the issue shifts to the states
Almost all states barring birth control had these laws put on the books by ministers in the 14th
century, this was not a big issue for Protestants but a defining issue for Catholic circles.
Birth control statutes become a symbol for defending their position even though enforced mainly
on a whim
~Layers of right to privacy
Father of privacy, Brandeis in 1890 wrote article with partner called The Right To Privacy, this
was the beginning of the entire idea. It was just a common law (tort) right to privacy, i.e. use of
image without permission
Subjects = trivial, but was just the beginning, “the right to privacy is the right to be left alone”
(Read 160 years of privacy) Murphy and Rutledge talk about the 4th Amendment as a broad right
to privacy, WW II helped to move issue

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Can also tell in terms of technological history
In an 1840 newspaper the general sentiment expressed was we should be left alone
Interpreting computer-informational privacy
Brandeis’s definition of privacy can’t possibly capture well all of its layers and complexities
Legal idea of privacy didn’t begin with Griswold
Griswold- everyone agreed that the law was loose and needed to be altered
The case had been sent back on a technicality. The issue had been avoided long enough in the
court system. Harlan’s dissent saying it should be taken up and is unconstitutional. What’s at
stake in terms of the legal argument-
1. constitution doesn’t explicitly mention privacy. For some justices, like the text-abiding
Black, this is enough to discount the whole argument for a right to privacy
2. all under the shadow of Lochner, so Douglas does double and triple backflips to avoid
Lochnering and substantive due process, which is the enemy
He is essentially trying to do substantive due process without actually doing it. Under due
process he avoids Harlan’s straightforward narrow application of substantive due process
Instead Douglass follows the incorporation argument, which says that the Bill of Rights
incorporates into the 14th Amendment the right to privacy. SO where do you get it from?
~Free association, NAACP v. Barnett as an example
Specific guarantees in the Bill of Rights have “penumbras formed by emanations” – “giving the
finger to any more conventional legal analysis” –MH
Represented the ultimate Warren Court “you can say anything”
It’s true that you can find by combining ideas, you can find a typology, you can find the
underlying principles of different provisions
Douglass was applying Brandeis’ ideas, this was not as arbitrary as it sounded:
3rd amendment = privacy
th th
4 , 5 , zone of privacy
Finally 9th amendment = extra rights had not been implemented before
11/12/04
Those that advocate the “snapshot” method of viewing the constitution, the originalist argument,
are not that interested in limiting the presidency, only the supreme court—this is part of the
largely folly of the originalist stance—so many things have been changed and reinterpreted that
it seems odd to only try and limit the court

With the originalist argument, who’s intentions do you look to? The framers, the
ratifying committee, who? Often these interests had conflicting interests, and once you
admit conflicting interests at the start, you lose the originalist argument that intention was
just there and unchanging—obviously it was not

Then you have the problem of generality—at what level of specificity do you interpret
the framers intention? I.e. does the 4th amendment protect against wire tapping of
phones—no there were no telephones then—but the 4th amendment does protect rights of
privacy—as such, judges need to have some leeway and discretion to decide such things

Historians have to do this same thing—judges need to take a lesson from them—it seems that it
often depends on the situation—however historians have the luxury of not having to give
an absolute answer, whereas judges do—thus judges must suppress all this ambiguity to

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 come up with an absolute answer—so though all judges aspire to be originalists, all true
efforts to do so require discretionary thought

Baggett v. Bullitt (1964)

Writing for the court, Justice White struck down 1931 and 1955 Washington state statutes
requiring oaths on the grounds that they are “unduly vague, uncertain and broad.” University of
Washington professors had objected to them. The 1931 oath required teachers to swear to
promote respect for the flag and U.S. and Washington institutions, reverence for law and
allegiance to the U.S. government. The 1955 oath required sate employees to swear that they are
not subversive and that they don’t commit, abet or advocate subversive acts. Justices Clark and
Harlan dissented, disagreeing that the 1955 act was overbroad. They lamented that the Court was
overturning an opposite opinion on a similar loyalty oath in Gerende v. Board of Supervisors of
Elections (1951), as well as its landmark holding in Dennis v. U.S. (1951). Clark and Harlan also
asserted that the Court should give Washington an opportunity to interpret the 1931 law before
striking it down.

“Loyalty Oaths: The Creedal Affirmations of Constitutional Faith,” Sanford Levinson,

Constitutional Faith, 1988.

Loyalty oaths twice written into Constitution—for president and senators/representatives.

Discusses uniqueness of being American/American citizenship as being a choice to adhere to a
political philosophy—a loyalty oath of sorts—rather than by birth, as in so many other countries.
Then recounts the long history of loyalty oaths in American government and tradition,
highlighting issues like political loyalty oaths, the problem of multiple loyalties and how oaths
address that, and (briefly) touches on the Court’s hostility to oaths, mentioning WVa. State
Board of Education v. Barnette.

“Loyalty Oaths,” George P. Fletcher

Fletcher argues that loyalty oaths for citizenship or public office should not be confused with or
used as justification for more pervasive loyalty oaths, citing the one he has to sign as a Columbia
professor and the one a Boston state hospital worker had to sign. He argues that they are
demeaning, ineffectual, and largely meaningless (for instance, what does it mean to “support” the
constitution? He says of course he will continue to criticize it for things like the 3/5 clause. He
also notes that the document itself contains a mechanism for amendment, support for the
document can be consistent with calls for its repeal.)

Aptheker v. Secretary of State (1964)

The issue is whether a clause (section six) of the Subversive Activities Control Act of 1950,
preventing members of registered Communist organization from holding or using passports, is
constitutional. Justice Goldberg, writing for the Court, finds that prohibiting Communists from
holding a passport violates Fifth Amendment Due Process. First, the passport prohibition
amounts to a prohibition on travel, which is part of Fifth Amendment Due Process, according to
Kent v. Dulles (1958). The remedy is both too drastic and overbroad (prevents members of such

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organizations from even innocent travel). And it violates First Amendment freedom of
association guarantees. Justice Black concurs, arguing that the whole act is unconstitutional,
because it constitutes a Constitutionally-prohibited Bill of Attainder, it similarly violates the
right to fair trial and procedural protections under the fourth, fifth and sixth amendments, and
because it tramples on their first amendment freedoms of expression. Justice Douglas concurs,
noting that “the right to move freely State to State is a privilege and immunity of national
citizenship.” Justice Clark, joined by Harlan and in part by White, dissented, arguing that the
Court had considered the overly broad question of the statute’s constitutionality, rather than the
question of whether it was constitutional as applied to the defendants.

U.S. v. Robel (1967)

Justice Warren, writing for the court, found that it was unconstitutional to fire a Communist
Party member working at a defense facility. It symbolized the extent of the Court’s rejection of
McCarthyism. Warren rejected the district court’s attempt to save the statute (the McCarran Act)
from overbreadth charges by reading into it an intent requirement. Warren asserted that this was
for the legislature, not the Court, to decide. He insisted the act was overbroad because it did not
distinguish between types of party members. Brennan concurred but rejected the overbreadth
argument, instead finding that the unconstitutionality occurred when congress delegated to the
secretary of defense the right to name which facilities were covered. White (with Harlan)
dissented, arguing it was not the place of the Court to exercise “independent judgment of the
requirements of national security.”

U.S. v. O’Brien (1968)

Warren, in a 7-1 opinion, said that a 1965 amendment to the Selective Service Act explicitly
forbidding draft card burning was constitutional. He rejected the argument that it was symbolic
speech protected by the First Amendment: “we cannot accept the view that an apparently
limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.” He laid out a four-part test for constitutionality: if the
regulation is in the government’s power, if it furthers an important or substantial government
interest, if it is unrelated to freedom of speech, and if the restriction on 1st amendment rights was
no greater than necessary, then it is ok. Powe argues Warren did not take the test seriously,
dismissing concerns that his third criteria did not hold by asserting (inaccurate, according to
Powe) that the Court did not examine motivation and thus an otherwise constitutional statute
doesn’t become unconstitutional because of bad illicit legislative purpose. Harlan concurred but
added that the opinion should not totally dismiss 1st amendment claims when a speaker had no
other way of reaching a “significant audience” (although again Powe notes this doesn’t make
sense because O’Brien had no other way of reaching the millions of TV viewers). Douglas
dissented but on grounds that conscription was impermissible absent a declaration of war. The
Court declined to even consider O’Brien’s 8th amendment claim.

Tinker v. Des Moines (1969)

A few schoolchildren had worn black armbands to school to protest the Vietnam War and had
been suspended for wearing the armbands. Fortas, for the court, found that the behavior was

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“closely akin to ‘pure speech’” and was not disruptive to the classroom environment, but was
intended to suppress criticism of the war. “It can hardly be said that either students or teachers
shed their constitutional rights to freedom of speech at the schoolhouse gate,” Fortas wrote. He
also found that children do not check their first amendment rights at the schoolhouse door.
Stewart concurred but opined that children probably have lesser first amendment rights than
adults. White also concurred. Black dissented, arguing that the court had arrogated for itself the
right to decide what regulations are reasonable, that it without constitutional basis subjected
students in public schools to the opinions of the loudest among them, and that the Court should
leave to the schools to determine where free speech ended when the action was in part disruptive.
Harlan dissented, saying the burden was on petitioners to prove that the school had impure
motives in promulgating the regulation.

Loyalty, Fletcher

This chapter discusses the tensions between freedom of religion and freedom of speech,
especially as applies to Barnette. If freedom of religion is the guiding principle protected, then
it’s about them acting as a community, but if it’s about freedom of speech, it more broadly
protects individuals acting on their own. In the years after its decision, it was seen as a religion
case. But discusses how Barnette was reinterpreted by Tinker. Notes how Gobitis was quoted as
precedent in 1990 by Scalia, and how that may mean it hasn’t lost all of its constitutional force.

Brandenburg v. Ohio (1969)

This case dealt with the Smith Act, a post-WWI statute prohibiting advocacy of illegal action.
Brandenburg, a local KKK leader, made derogatory remarks at a Klan rally. He was convicted to
“criminal syndicalism” for advocating unlawful action. The opinion was a per curiam opinion
announcing a new test for illegal advocacy, the Smith Act crime for which many Communists,
including ones previously before the Court, had been tried. The new test required that the action
advocate imminent lawbreaking and was actually likely to result in such action. It was a
landmark decision, under whose test no Communist from Dennis in 1953 to Scales in 1961
would have been jailed, according to Powe. Black and Douglas also concurred to reiterate the
Court’s ugly past on this issue and remind it of the dangers that still lurked under the new test.
Fortas wrote the opinion but had resigned but the time it was delivered. Brandenburg relies on
position that speech is critically important and only minimal intrusions can be tolerated.

Michael Walzer, “What It Means To Be An American”

Discusses pluralism. How America isn’t fatherland or motherland or home to its citizens, really
is “from many, one” or many and one at the same time. Posits that we have cultural “manyness”
but political “oneness.” Discusses conflict between many and one. Talks a lot about hyphenated
Americans: Irish-American, German-American, Jewish-American. That American isn’t a
heritage or ethnicity—it isn’t recognized by the U.S. Census. Argues that America is a dispersed
collection of ethnicities and meant to be that way.

Powe, pages 310-317, 322-335

- Domestic Security:

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- Baggett v. Bullitt ~> 1964, Court struck down 2 loyalty oaths at the behest of Univ. Wash.
professors
- oaths were too vague
- Elfbrandt v. Russell ~> 1966, abandoned vagueness approach for ruling what a state could not
do.
- Keyishian v. Board of Regents ~> refused to sign “Feinberg Certificate”, affidavit that an
employee wasn’t a member of the Communist Party
- Feinberg Law ~> criminalized utterance of treasonable or seditious words. Disqualified from
public employment anyone who advocated overthrow of the government.
-Kent v. Dulles ~> Goldberg… abandoning freedom of association is too high a price to place on
the right to travel
- United States v. Brown ~> Warren’s opinion very vague… the rational for the affidavit was the
union officials who were communists were therefore more likely to engage in political strikes.
- Lamont v. Postmaster General ~> chilling effect… Post Office can’t deliver communist
propaganda to addressee unless the addressee made known to the Post Office the desire to
receive information. But… few citizens are going to go to the gov. and affirm a desire to receive
communist propaganda!!!

Vietnam:
- antiwar protests produced major constitutional issues.
- Black and Douglas oppose war, Douglas becoming more vocal about the war
- Court refuses to hear any case that questions the legality of the war
- Bond v. Floyd ~> first antiwar speech case
- unanimous Court sides w/Bond… he doesn’t have to take the mandatory legislative oath
to support the federal and state constitutions
- shows First Amendment law had changed in half a century
- O’Brien ~> burning of a draft card
- shows that time for tolerance of youth had passed
- Court no longer accepts the view that all conduce can be labeled “speech”
- Street v. New York~> symbolic-speech case… antiwar protest, flag burning
- showed there were limits to the liberalism of some of the Court liberals
- Brandenburg v. Ohio ~> Klan march.
- Court embraces the First Amendment free speech
- speech is so important, so vital to a representative democracy, only the most minimal
intrusions, if any, can be tolerated.

WEEK 9

Lecture 11/17
4 constitutional positions taken in Griswold v. Connecticut

1. Goldberg:
- first 8 Amendments don’t end the story of the Bill of Rights
- 9th Amendment has a purpose
- some fundamental rights, not written in the first 8 Amendments must be protected by the Court.

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- applies to the federal level and the states
- appealing above and beyond to some higher fundamental rights
2. Black:
- affronted by Griswold
- sit-ins ~> his flight from liberal majority
- after Griswold, Black’s disillusion period
3. Harlan (pg 613 coursepack)
- define narrow category of marital rights
- says what’s not part of due process, due process clause limited
- 1959: didn’t appear that sexual mores were headed for a vast rapid change
- 1986: Harlan’s view of homosexuality is the dominant view by 5-4, Bowers v. Hardwick
- pg 611: balance between what liberty demands and what organized society demands.
4. Douglas:
- took over Brandeis’ ideas
- strong right to privacy idea

Conservatives: Clark, Harlan, White, Frankfurter

- socially mainstream group
Liberals: Goldberg, Fortas, Brennan, Marshall, Warren, Douglas, Black
- championed outsiders, were outsiders as well
- socially marginal origins
- 6 of the 7 grew up in extremely poor families (except for Brennan)
- 2 Jews
- 1 Black
- outsiders to mainstream white, middle-class, Protestant culture or were very poor
- sense of inferiority in educational backgrounds

Warren Court the first to empathize with the underdog.

1967-1969: real solid 5 person majority in the Court

1969: end of Warren Court.

Olmstead v. United States (1928)

- FACTS:
Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed
wiretaps in the basement of Olmstead's building (where he maintained an office) and in the
streets near his home. Olmstead was convicted with evidence obtained from the wiretaps. This
case was decided along with Green v. United States, in which Green and several other
defendants were similarly convicted, based on illegally obtained wire-tapped conversations, for
conspiracy to violate the National Prohibition Act by importing, possessing, and selling illegal
liquors. This case was also decided with McInnis v. United States.

- QUESTION:
-Did the use of evidence disclosed in wiretapped private telephone conversations, violate the
recorded party's Fourth and Fifth Amendments?
- CONCLUSION:

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- No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded parties
were violated. The use of wiretapped conversations as incriminating evidence did not violate
their Fifth Amendment protection against self incrimination because they was not forcibly or
illegally made to conduct those conversations. Instead, the conversations were voluntarily made
between the parties and their associates. Moreover, the parties' Fourth Amendment rights were
not infringed because mere wiretapping does not constitute a search and seizure under the
meaning of the Fourth Amendment. These terms refer to an actual physical examination of one's
person, papers, tangible material effects, or home - not their conversations. Finally, the Court
added that while wiretapping may be unethical no court may exclude evidence solely for moral
reasons. When criticized for his opinion, Justice Taft mocked his foes as he wrote to a friend: "If
they think we are going to be frightened in our effort to stand by the law and give the public a
chance to punish criminals, they are mistaken, even though we are condemned for lack of high
ideals." This case was reversed by Katz v. U.S. (1967).

Kyllo v. United States (2001)

- FACTS:
- A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used
a thermal-imaging device to scan his triplex. The imaging was to be used to determine if the
amount of heat emanating from the home was consistent with the high-intensity lamps typically
used for indoor marijuana growth. Subsequently, the imaging revealed that relatively hot areas
existed, compared to the rest of the home. Based on informants, utility bills, and the thermal
imaging, a federal magistrate judge issued a warrant to search Kyllo's home. The search unveiled
growing marijuana. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved
to suppress the evidence seized from his home and then entered a conditional guilty plea.
Ultimately affirming, the Court of Appeals held that Kyllo had shown no subjective expectation
of privacy because he had made no attempt to conceal the heat escaping from his home, and even
if he had, there was no objectively reasonable expectation of privacy because the imager "did not
expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior
wall."
- QUESTION:
- Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a
private home constitute an unconstitutional search in violation of the Fourth Amendment?

- CONCLUSION:
- Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as here,
the Government uses a device that is not in general public use, to explore details of the home that
would previously have been unknowable without physical intrusion, the surveillance is a 'search'
and is presumptively unreasonable without a warrant." In dissent, Justice John Paul Stevens
argued that the "observations were made with a fairly primitive thermal imager that gathered
data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected
interest in privacy," and were, thus, "information in the public domain."

Kennedy, Birth Control and the Law

- Comstock law (1914) ~> banned the mailing, interstate transportation, and importation of
contraceptive materials and information.
- states directly retarded the establishment of clinic and thwarted the organization of local
leagues to propagandize for birth control.

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- Margaret Sanger at the forefront for women’s rights and birth control.
- 1929: National Committee on Federal Legislation for Birth Control established in
Chicago… Sanger was the chairman.
- Sanger believed that birth control could help relieve the depression… reduce population.
- early 1930’s ~> American Birth Control League
- Judge Hand gives full recognition to the weight of medical authority and that abortions must be
allowed in proper cases… Sanger hails Hand’s decision as the greatest legal victory in the Birth
Control Movement. (pg 599)… One Package decision….
- had mixed influence on the legal status of birth control
- federal level.. removed all obstacles limiting the private doctor’s access to contraceptive
information and supplies.
- debate whether to incorporate contraceptive service into federal public health programs.
- had limited legal effect, but did have a profound influence on the course of the organized birth
control movement.
- brought a new birth control organization into being

GRISWOLD v. CONNECTICUT (1965)

(“A Connecticut statute makes it a crime for any person to use any drug or article to prevent
conception. Appellants claimed that the accessory statute as applied violated the Fourteenth
Amendment.” All Justices agreed the law itself was silly and should not exist, but many feared
Lochnering…Right to Privacy case)

Decision: reversed

Court Breakdown
Concur Dissent
Douglas X
Warren X
Goldberg X
Brennan X
Harlan X
Clark X
White X
Black X
Stewart X

Court Opinion (by Justice Douglas)

Depends primarily on First Amendment penumbras to justify reversal

Ex. “In NAACP v. Alabama we protected the ‘freedom to associate and privacy in one’s
associations,’ noting that freedom of association was a peripheral First Amendment right…The
foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance…Various guarantees
create zones of privacy.”

Douglas justifies these “zones of privacy” by drawing from the Bill of Rights:

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-right of association from the 1st Am.
-innate privacy inherent in 3rd Am.
-“right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures” in the 4th Am.
-5th Am. Self-Incrimination Clause
-9th Am “The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”

Concurrence (by Justice Goldberg, whom Chief Justice Warren and Justice Brennan join)
Depends primarily on Ninth Amendment

Ex. “The Ninth Amendment simply shows the intent of the Constitution’s authors that other
fundamental personal rights should not be denied such protection or disparaged in any other way
simply because they are not specifically listed in the first eight constitutional amendments.”

Basically, Goldberg feels marital privacy is obviously a fundamental right that, while not listed
specifically, is one of the fundamental rights the 9th Am. Was meant to encompass. The 9th Am.
keeps the federal government from invading, and the through the 14th Am. (prohibiting “States as
well from abridging fundamental personal liberties) keeps the State from invading.

Aside: Goldberg charges judges with determining what is a fundamental right (under the 9th
Am.) and says they should “look to the ‘traditions and [collective] conscience of our people’ to
determine whether a principle is ‘so rooted [there]…as to be ranked as fundamental.’”

Concurrence (by Justice Harlan)

Depends primarily on Due Process Clause of 14th Amendment, but also invokes strict scrutiny
since it is dealing with a “most fundamental aspect of ‘liberty’”

“the proper constitutional inquiry in this case is whether this Connecticut statute infringes the
Due Process Clause of the Fourteenth Amendment because the enactment violates basic values
‘implicit in the concept of ordered liberty.’”

“[Since the law] marks an abridgement of important fundamental liberties, [it] will not do to urge
in justification [simply] that the statute is rationally related to the effectuation of a proper state
purpose. A closer scrutiny and stronger justification than that are required.”

Aside: Harlan does make reference that “The right to privacy is not absolute. Thus, I would not
suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry,
however privately practiced.” He says that marriage differs from restrictions on these in that the
State has already allowed the marital bond to exist (as it should) and so must allow all the
privacy that goes with it.

Dissent (by Justice Black, with whom Justice Stewart joins)

Basically Black agrees with all the horrible things said about the law, but just can’t bring himself
to declare it unconstitutional

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He dismisses a 1st Am. argument saying that just because there is speech attached to the act (“just
as in ordinary life some speech accompanies most kinds of conduct”) doesn’t mean you can bend
the 1st Am. this far

He dismisses the “right to privacy argument,” saying “The Court talks about a constitutional
‘right of privacy’ as though there is some constitutional provision…forbidding any law ever to
be passed which might abridge the "privacy" of individuals. But there is not. There are, of
course, guarantees in certain specific constitutional provisions which are designed in part to
protect privacy at certain times and places with respect to certain activities…But I think it
belittles that Amendment to talk about it as though it protects nothing but ‘privacy.’” He also
references the danger of replacing a specific constitutional protection (“unreasonable searches
and seizures”) with more general terms (“right to privacy”)

He dismisses the 9th Am. and 14th Am. arguments by saying the two are essentially the same
thing, “merely using different words to claim for this Court and the federal judiciary power to
invalidate any legislative act which the judges find irrational, unreasonable or offensive.”

Powe 372 (Griswold)-377

- after defeat in Poe v. Ullman, Planned Parenthood opens clinic in New Haven
- Constitution says nothing about contraception
- only way to argue is through substantive due process, but hadn’t been used since 1937
- Douglas tries to find right to privacy – profound statements about marriage
- Goldberg opinion – use 9th Amendment
- Black and Stewart dissent
- in accordance with popular opinion

KATZ v. UNITED STATES (1967)

(petitioners were caught “transmitting wagering information by telephone across state lines”
violating the law. Key evidence was an FBI wiretap that was placed on the outside of the
telephone booth. NOTE: “no physical entrance into the area occupied by” the petitioner was
made…Right to Privacy case, dealing with 4th, 5th Am….overturns Olmstead v. US (1928))

Decision: reversed

Court Breakdown
Concur Dissent
Douglas X
Warren X
Fortas X
Brennan X
Harlan X
Marshall (did not participate)
White X
Black X

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Stewart X

Court Opinion (by Justice Stewart)

The 4th Am. protects people not places…whether the telephone booth is a constitutionally
protected area is irrelevant
“What a person knowingly exposes to the public, even in his own home or office, is not a subject
of the Fourth Amendment protection…But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.”
“Thus, although a closely divided Court supposed in Olmstead that surveillance without any
trespass and without the seizure of any material object fell outside the ambit of the Constitution,
we have since departed from the narrow view on which that decision rested. Indeed, we have
expressly held that the Fourth Amendment governs not only the seizure of tangible items, but
extends as well to the recording of oral statements, overheard without any ‘technical trespass
under…local property law.’”

Dissent (by Justice Black)

“I do not believe that it is the proper role of this Court to rewrite the Amendment in order ‘to
bring it into harmony with the times’ and thus reach a result that many people believe to be
desirable.”
Basically, Black says that the 4th Am. specifies it protects only tangible items, and since words
are not tangible, they cannot be protected by the 4th Am. If the Framers had wanted to ban
eavesdropping, they would’ve added it.

Ken Gormley – One Hundred Years of Privacy

This article maps five different conceptions of “privacy” as conceived of and reflected in
Supreme Court decisions. Gormley, taking a historical view, approaches the explanation of each
conception by providing (1) a definition (2) a relationship between the conception and others,
and (3) the historical circumstances that resulted in the conception coming to bear on law.

Overall, Gormley argues that unlike many before him who have tried to narrowly define what the
definition of “privacy” is in order to more concretely use it in law, the notion of privacy is a
multifaceted and ever changing thing. Adopting what would be consistent with a “Living
Constitution” point of view, he argues that as societal circumstances change, and particularly
with the advancement of technology, members of society and parts of government adopt new
ways of interacting with persons’ individuality. The role of the Court, in defining privacy over
the years, has been to balance the interests and rights of government and society with an
individual’s “right to be let alone.” Rather than conceiving of privacy as any one particular
thing, then, the Court has engaged in defining different aspects of privacy in different
circumstances. Gormley contends that this process is long from over, and while these five
interpretations exist now, there are bound to be more as society and innovation surprise us with
new possibilities.

I highly recommend reading the Epilogue pp 658 to 663 in the sourcebook if you’re interested by
this stuff, but a succinct encapsulation of his points (pg 662 in the sourcebook):

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 The most distinctive characteristic of privacy – which can be gleaned from a hundred-
year examination of the cases- is its heavy sensitivity to historical triggers. As has been
discussed above, each type of privacy has been directly jolted into existence by
transformations in American life and technology, which have created a societal mood
powerful enough to incubate a new, legally protected right. This is significant because it
means that the future manifestations of privacy will be largely unexpected. Continued
attempts to hunt down a single, precise definition will inevitably fail.

General Outline
• Purpose of article - Introduction
! Legal face of privacy
! How has privacy actually developed?
! Consists of many definitions, not just one
! Meaning is heavily driven by history
• Different offshoots depending on the climate of American life
! Overall “right to be let alone”
! Question of “with respect to what?”

• The Privacy of Warren and Brandeis (Tort Privacy)

! 1890 Article in Harvard Law Review
! Legal precedents for definition
• Common law trespass notions
• Criminal law safeguards on blatant assaults on person
• Patchwork of English and Irish Court cases
! A tort-like notion of privacy had come of age in American through the natural evolution
of Common Law
! Characteristics of Privacy
• Superficial resemblance to an action for defamation. No proof of actual monetary
damages. Truth was not a defense
• Not based on a right of property or copyright. Designed to protect “inviolate
personality”. Could recover based on injury to feelings and honor which were
linked to personality.
• Common law notion that each individual has right to determine “to what extent
his thoughts, sentiments, and emotions shall be communicated to others.”
• Limitations: Did not apply to matters of public or general interest (i.e.
campaigns). Right is lost when information becomes part of public domain.
! Historical Justification
• Explosion of mass media in the United States – new forms of information use
o “yellow journalism” or “new journalism”
o Emphasize the curious dramatic and unusual
• Excesses of newspapers and photographers in using images of people and
information – gossip.
• Marion Manola v. Stevens & Myers
o Photographs of an individual used without consent.
o Ruled to violate rights and withheld from being printed.
• For Warren and Brandeis, Mechanical devices threaten private and domestic life.

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 • Privacy came into being to keep American democracy in step with its own
inventiveness.
! Privacy notion meant to reflect a deeper instinct in the Common Law
! Privacy meant to preserve an individuals “inviolate personality” in a society that placed a
premium on the individual.
! Laws enacted - No…
• Unlawful appropriation of an individuals name or likeness
• Unreasonable intrusion into the solitude or seclusion of another
• Public disclosure of truthful but embarrassing facts
• Publicity that places a plaintiff in a false light in the public eye
! Control of information about oneself is critical in determining how and when others will
perceive us, which is in turn essential to maintaining our individual personalities.

• Fourth Amendment Privacy

! Search and Seizure privacy
! English law – “A man’s house is his castle”
• Prohibition of quartering of soldiers in Constitution
• Warrants for searches and seizures
! Definition - Olmstead v. United States
• Wiretapping case, majority allowed wiretapping because it wasn’t a physical
trespass.
• Brandeis dissent
o Subtler and far more reaching means of invading privacy have become
available to the Government
o Change in society should yield a change in the interpretation of the law
o Original draft warns of Television as well, though taken out.
! Historical Catalyst
• Electronic surveillance devices
• Nardone v United States – wiretaps were illegal
• Congress heatedly debated their use, and per a Secret Executive Order, FBI still
used in “situations involving national defense.”
• Attempts by states to curb wiretapping were ineffective
• Lyndon Johnson stated wiretaps should be outlawed in his State of the Union
(1967)
! Acceptance of 4th Amendment Privacy
• Silverman v. United States (1961)
o Unanimous court disallowed use of a mike driven into the wall of a house
o Still, however, clung to a notion of “physical trespass”
• Katz v. United States (1967)
o Disallowed use of tap outside a phone booth.
o Reasonable expectations of privacy
o Sanctuary, secrecy, and solitude
! Similarities to Tort Conception
• Both conceived by Brandeis
• Right to be let alone – one from citizens the other from government
• Both reacted to technological change

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• First Amendment Privacy
! Free Speech
• Martin v. City of Struthers
o Forbade the prohibition of door to door leafleting
o Acknowledged that there was not only free speech, but the right of the
individual in the home to protect their solitude – tension
• Breard v City of Alexandria
o Upheld law that disallowed selling of popular magazines door to door
o Homeowners right to privacy limited the seller’s right to free speech.
• Packer Corporation v. Utah
o Upheld a statute prohibited advertisement of tobacco on billboards, etc.
o Privacy rights of the unwilling observer
o Right to be let alone powerful enough to defeat the first amendment
o Captive audience – the radio can be turned off, but not the billboard
o Ultimately rejected as an unacceptable political idea;
• Kovacs v Cooper
o Captive audience argument – cannot use truck and loudspeakers emitting
loud noises on the street.
o Disturb the home.
• Two distinct hemispheres
o Freedom to speak and express vies in public
o Freedom of the citizen to think and engage in private thoughts, free from
the clutter and bombardment of outside speech.
• Historical Backing
o Common law principles underlying and predating the Constitution and tort
law notions of solitude and individuality (p 643)
o Urbanization of America meant people living in “large human beehives”
o People working 24 hour shifts, could be sleeping anytime
o Urge Americans to withdraw from the crowd – personal space
! Free Press
• Whereas privacy in the speech area wins out, it does not in the press area
• New York Times v. Sullivan
o Standard in defamation cases
o Curtails state ability to permit libel suits unless actual malice is proven
• No serious balancing between free press and privacy rights.
! Repose, sanctuary, and solitude.
! Vis a vis governmental action, but also private conduct

• Fundamental Decision Privacy

! Griswald v. Connecticut
• Penumbral guarantees – right to marital privacy
• Penumbras came from Holmes dissent in Olmstead
• Mixture of the previous species of privacy (1st, 4th, 5th, 14th)
! Roe v. Wade
• Liberty as substantive due process in the 14th Amendment

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 • Parts of other types of privacy (1st, 4th, 5th, 14th)
! Historical Forces
• Technological advance created a sphere of personal choice
o Contraceptives
o Abortion procedures/surgery
! Was Roe a re-enactment of Lochner?
• Yes and No
• Both located substantive rights within the word liberty of the 14th Due Process
Clause
• Lochner was economic rights while Roe was noneconomic
o Ely (Yale Law) – distinction is irrelevant. Both Roe and Lochner sought
to give protection to rights that seem pressing though the Constitution has
no special solicitude for them.
o Tribe – Roe was a legitimate expression of society’s morality, which is
constantly changing.
! Definition
• Core, central, or pivotal liberties of the person
• Plug gaps in the social contract
o For previously inconceived issues, what is the role of the government with
respect to private citizens and the limitation or allowance of their
individual wills?
o Right to be let alone vs. the compelling state interest
• Two categories
o Noncontroversial “marriage-family-home” cases
! Deal with a specific liberty familiar since the founding of
American democracy
! E.g. Education and Child-rearing
o Controversial “abortion-contrception-right to die-homosexuality” cases
! All attempt to plug gaps in the social contract
! How completely unanticipated rights should be dealt with under a
written Constitution that never imagined them.
! Manifestations of the debate
• Bowers v Hardwick
o Ambivalence in Ameircan society, generally, as to whether homosexuality
constitutes a new alternative to marriage as a lifestyle in the US.
o Fundamental decision privacy wont resolve certain gaps until it is clear
they wont go away.
! Legitimacy of Judicial Clarification of the Social Contract
• Court examines historical facts, evolving case law, and the decisions of state
legislatures and courts.
• Apply to unexpected changes in the lives of citizens
• Must be allowed to clarify the role of “liberties”
o Citizens otherwise may become disengaged or disaffected
• If there is an error in plugging the gaps, the legislature can move forward and
amend the Constitution.

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 ! “The right to be let alone, with respect to fundamental decisions concerning the
individuals own person, which are explicitly or implicitly reserved to the citizen b the
terms of the social contract.”

WEEK 10
LECTURE 11/22

This was right off of Horwitz’s discussion of Roth v. United States…he began by discussing
Brennan’s formula and the “contemporary community standard” that an “average person” was
suppose to apply to determine obscenity…is this setting a national standard of decency? And if
so, who decides it?

Perhaps restrict 1st Am. to political speech to avoid diluting the category

Jacobellis v. Ohio (1964)

Justice Stewart on obscenity “I know it when I see it”
References difficulty in applying Roth with consistency, vagueness of Roth decision

By the end of the Warren Court, says Powe, it was an “anything goes” atmosphere
The only protected group seemed to be children

Shift in political ground of obscenity due to Women’s Movement

Fast forward % Catherine McKinnon’s book on sexual harassment, single-handedly created

legal theory sexual harassment suits are based on
First to point out that sexual subordination of women was the subtext of most pornography

Horwitz raises the question of whether or not the social consequences of pornography eliminate
protections by the 1st Am.

Harlan- 1st Am. does not apply with equal weight to the state as it does to the US gov.
&a matter of federalism…only Justice to remain consistent on this idea

LECTURE 11/24

I don’t know how many of you made this lecture before Thanksgiving break, but he started out
talking about the obituary of a dead chemist/pharmacist and turned it into a lesson to
undergraduates here. Not really applicable to the exam.

The last half he talked about cultural pluralism and homogeneity

Engel v. Vitale (1962) –freedom of religion—Supreme Court struck down compulsory prayer
law # Southern Baptist reversal of view on separation of church and state # more widespread
opposition to Engel v. Vitale than any other case

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He then present three models
(1) assimilation (majority group imposing will on minority)
(2) pluralistic (respecting diversity)
(3) individualist

Horwitz, “Democracy involves…the perfection and conservation of differences”…mutual

cooperation, understanding “Does democracy entail cultural values?”
He then proceeded to go on another rant about how the word “democracy” rarely appeared in
case decisions, and when it did it was almost always with negative connotations…the Framers’
fears of “tyranny of the majority” in democracy

He ended with describing democracy as “the ability of the outs to toss out the ins”

United States v. Roth - 1957

Roth operated a book-selling business in New York and was convicted of mailing obscene
circulars and an obscene book in violation of a federal obscenity statute. Roth's case was
combined with Alberts v. California, in which a California obscenity law was challenged by
Alberts after his similar conviction for selling lewd and obscene books in addition to composing
and publishing obscene advertisements for his products.

Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of
obscene materials through the mail, impinge upon the freedom of expression as guaranteed by
the First Amendment?

In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was
not "within the area of constitutionally protected speech or press." The Court noted that the First
Amendment was not intended to protect every utterance or form of expression, such as materials
that were "utterly without redeeming social importance." The Court held that the test to
determine obscenity was "whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to prurient interest." The
Court held that such a definition of obscenity gave sufficient fair warning and satisfied the
demands of Due Process. Brennan later reversed his position on this issue in Miller v. California
(1973). Douglas and Black dissented. Closes on Red Monday

Hopkins, “Mr. Justice Brennan and Freedom of Expression”

This article discusses Brennan’s central role in handling the obscenity cases. Roth was clearly the
start but very soon, the Court and Brennan were backing off due to the thorny nature of defining
what pornography was. Three years later the standard was changed to define obscene as
appealing to prurient interest of the targeted group, not the public.
By the time Jacobellis came around in 1962, Brennan had an octuplet of issues –
basically was reconsidering Roth. Prime concern: protecting art. Brennan set out some criteria to
ensure that obscenity would be judged based on a national standard, affirming the “utterly w/o
redeeming social value” test (slight change of wording).
Three obscenity decisions – Ginsburg v US, Memoirs, and Mishkins came down 3/21/66.

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Grunes “Justice Brennan and the Problem of Obsenity”
Brennan found obscenity to be one of the most vexing tasks of his tenure, ultimately he
found it too hard to define and became a dissenter when once he was a proponent. Initially in
Roth he proposed the test (described above), reexamined in Jacobellis (1964) where the court
was very fragmented. Then came the variable approach in which “pandering” changed the status
of obscenity. By time of Burger Court, Brennan became a dissenter

DeGrazia, “Girls Lean Back Everywhere”

Portrayal of “nine not-so-old men” liberating sex in American culture. Discusses
Brennan’s humble background and its role in making him an egalitarian consensus-builder.
Interestingly, he overruled his father’s precedent in censorship as commissioner of public safety.
Francis Cardinal Spellman initially liked Brennan as he was Catholic but became displeased with
his taking the Constitution as first priority. Obscenity was area of disagreement between Warren
and Brennan. And Brenan resisted Frankfurter’s friendliness early in his term, realizing that
Frankfurter had an agenda of judicial restraint.

Post, “Constitutional Domains”

Feminists have recently sought the regulation of pornography on the grounds that pornography
injures women as a group. This feminist challenge raises a vital constitutional question about the
kinds of values the first amendment should protect. Professor Post here considers that question in
light of three alternative means by which a legal order might be structured for a society made up
of heterogenous groups: (1) assimilationism, which seeks social uniformity by imposing on all
individuals the values of a dominant cultural group; (2) pluralism, which nurtures social diversity
by protecting the values of competing cultural groups; and (3) individualism, which favors the
choices of individuals over the values of any cultural group. He identifies the differences and
connections among these perspectives by comparing the English and American laws against
blasphemy. That comparison reveals the profoundly individualist character of American first
amendment doctrine. Professor Post argues that the feminist challenge against pornography is
controversial because it represents a pluralist challenge to our first amendment individualism,
and he concludes that the success of the feminist challenge depends on its proponents' ability to
offer a convincing vision of the first amendment that is consistent with pluralist values.

Powe p. 113 (Obscenity)-119

-Court had stated that obscenity was not protected by the first, but had never been decided in an
obscenity case
-skimpy evidence about the Framers and obscenity
-state prohibitions of profanity
-first amendment designed to keep federal government from regulating speech
-Court intentionally breaks from past, as completely as possible
-Brennan – obscenity could be regulated for any reason or no reason at all
-Warren, Harlan, and Douglas, joined by Black wrote separately
-Douglas and Black thought whole enterprise violated First amendment

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Powe, Chap. 13: The End of Obscenity?, pp. 336-57 [Section 22]
1956 Rhode Island establishes Commission to Encourage Morality in Youth, to investigate and
blacklist publishers of violent or obscene comic books or other books.
[1957 Roth v. US] … this is not described in this chapter but they reference it a lot … Brennan
writes that the Constitution does not protect obscenity, however, sex and obscenity are not
synonymous; if one passage is offensive it does not automatically make the entire work obscene;
and one has to rule based on average community standards, not particular prudish individuals’.
Warren dissents because Roth is a bad corrupt man who is not distributing great literature;
Harlan said states should decide; Douglas and Black say nothing should be censored because it’s
free speech.
1963 Bantam Books sues Rhode Island Commission above, in Bantam Books v. Sullivan,
Brennan rules against Rhode Island and orders to develop procedures for how it will determine if
book is in violation of laws. Harlan dissents.
Three most controversial books in 60s: Lady Chatterley’s Lover, Tropic of Cancer, Fanny Hill.
(i.e. serious literature.)
1964 Jacobellis v. Ohio concerns film Les Amants (the Lovers) w/ single sex scene. Brennan
(only Goldberg joins) says scene is just a fragment and purpose of film is to tell story of unhappy
marriage; makes four points: sex does not equal obscenity, obscenity must go substantially
beyond limits of candor, based on national not local community, and Court must review each
case singularly to determine if obscene. Warren, Clark, Harlan dissent. This initiates era of
regular Supreme Court basement porno film viewings. Black and Douglas don’t go because they
don’t think anything should be regulated, Stewart thinks that only hardcore pornography is
obscene, and says he can’t define it but “I know it when I see it.” Harland again thinks states
should be allowed to regulate if they want to; Warren and Clark think that local standards rather
than national can be used and not everything has to be reviewed by Supreme Court. Warren
views obscenity as a moral crime, not as harmless (he felt sympathetic for criminals because he
thought they must be poor and forced into crime, but had no tolerance for degenerates who do
sex and gambling). The final interpretation of Jacobellis and companion case Grove Press v
Gerstein (regarding book Tropic of Cancer) was that serious art and literature should be
protected, even if sexually arousing.
1965 Freedman v. Maryland concerns Maryland movie censor review board (must review all
movies to get a license to show them). Brennan uses his classic approach: state is allowed to
regulate obscenity, but the manner in which is doing so is problematic, in this case because it
takes too long and is burdensome. He requires that review must be quick, burden of proof is on
censor, and there must be judicial review. Black and Douglas dissent because they think
obscenity is free speech and should not be regulated at all.
1966 Trilogy: Memoirs v. Massachusetts (Fanny Hill book case); Ginzburg v. US; Mishkin
v. New York. Court protects only Fanny Hill book, sends Ginzburg, who uses post office to
send sexual (although not even obscene) materials, and Mishkin, who commission sexually
arousing “pulp” books to jail, because that was their only purpose and they are bad people.
Harland dissents because should not allow punishment of individual selling constitutionally
protected goods just because justice finds business disagreeable. Black and Douglas say violate
first Amd. and due process, Stewart reminds that censorship is authoritarian, and cannot pick and
choose who to censor (i.e. last two, but not Fanny Hill.)

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1967 Redrup v. New York must decide what level of intent to sell crass materials seller must
have (i.e. Redrup was just filling in for a friend selling dirty magazines and didn’t eve know
what was inside them.) Finally Court throws in towel and says will allow anything as long as
does not involve children, nonconsenting adults, and is not pandering.
1968 Ginsburg v US holds that cannot sell girlie magazines to those under seventeen.
1969 Stanley v Georgia (investigators looking for illegal gambling find films of orgies in
bedroom drawer.) Marshall says First Amd. applies – state cannot tell citizen what to read or
watch in his own home. State protecting against impure thoughts and minimizing antisocial
behavior is wholly inconsistent with First Amendment – destroying foundation of legal thought
about obscenity established by Roth (it is okay to regulate obscenity). Brennan and White (Roth
supporters) concur with Stewart that Stanley can be excused on Fourth Amd. grounds that police
did not have a warren to search and seize materials.

WEEK 11

Warren Court: Lecture Notes From 11/29/04

Criminal Justice Cases

- The criminal justice cases represent one of the great structural revolutions in the Supreme
Court: The virtual incorporation of the Bill of Rights into the Due Process Clause of the 14th
Amendment
- This revolution meant that the Bill of Rights was finally given prominence in the states.
Before the Warren Court, very little review of state criminal proceedings had taken place. After
the Warren Court, federal rights became a part of state criminal proceedings.

Mapp v. Ohio (1961):

- SC reverses Frankfurther decision from 1949 in Wolff v. Colorado: held that while the
4th Amendment does apply to the states, barring evidence is not the only way to protect
against unreasonable search and seizure. Essentially it meant that the exclusionary rules
applied to the federal government, but not the states.
- In Mapp, Court overrules Wolff and establishes the exclusionary rule as a necessary part
of the 4th Amendment, thus applying it to the states

Why did this happen when it did?

1. Race: Criminal justice was very closely tied to race. Black defendants in the South were
given the death penalty at the discretion of local judges.
a. Moore v. Demson (1923): Black defendant in the South was brought into jail and
forced to confess, given the death penalty, SC overturned conviction
i. Called a “Legal Lynching”
ii. Signaled to the South that things were changing
b. Scottsborough Cases: Nine young black men accused of raping two white women
were convicted despite evidence that indicated their innocence, given the death
penalty – resulted in public outrage in the North, SC eventually overturned
convictions

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 c. Powell v. Alabama: Convictions of several defendants were overturned because
def. were denied council in capital punishment cases. Upheld rule that all def. in
capital punishment require council.
d. Norris v. Alabama: SC overturned “continued exclusion of negroes from jury
service”
i. Exclusion had previously been ignored by SC
ii. Violated 14th amendment
iii. Even if it isn’t explicit violation of 14th amendment, this type of
exclusionary practice was unconstitutional
e. Brown v. Mississippi: SC overturns conviction of black defendant because
confession was coerced
f. Chambers v. Florida (1940): Written by Black. Strong SC opinion reversing
conviction of a Black man who gave a coerced confession over 5 days of
interrogation. SC is telling the South they aren’t going to ignore coerced
confessions any longer
g. Lynching
i. Became prevalent after Civil War.
ii. From 1882-1868 at least 4,743 people were lynched
1. 73% occurred in South
2. 73% against Blacks
iii. 1,100 during 1890’s – 31 during the 1940’s
iv. Does this decreasing trend indicate long-term attitudinal changes or does
institutional racism make legal lynching much easier and extra-legal
lynching less necessary? Did the legal system itself satisfy racial
tendencies with legal lynching?
v. Criminal justice reform immediately implicated the racial divide in the
United States. Was SC prepared to create a national standard to take the
place of local conditions?
h. NAACP
i. Increasing prominence in black legal struggle – believed that constitution
could be used to enact justice
ii. Struggle between NAACP and radicals in 1930’s
1. Radicals/Communists:
a. Law could only reflect the underlying power imbalance in
American society
b. Handled Scottsborough cases and aroused public opinion
c. Legal struggle independent of grassroots organizing would
not work
2. NAACP:
a. Legal avenues could be effective
b. Handled # of cases listed above
c. Got convictions overturned

2. Prohibition 1920-1933
a. Before Prohibition, the 4th Amendment was rarely used, during Prohibition it was
taken very seriously

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 b. First national police force (FBI)
c. Produced incredible police misbehavior by federal authorities
d. In WWII, images of booted Nazis breaking down doors introduced America to
what search and seizure actually meant
e. Wickersham Report (1931): Expansive analysis of US criminal justice
system
i. “The 3rd Degree:” Section of the report that examined the employment of
violence by police departments in cities around the nation
ii. The 3rd Degree meant violence, intense questioning, sleep and food
deprivation or any other means of police coercion
iii. The Report raised the consciousness of the educated elite on police
brutality; it came to seen as a serious problem that needed to be addressed.
BIG IDEAS: Criminal justices cases meant a huge revolution in criminal proceedings on a state
level. Reform in the area of coerced confession came was a result of screwed up Southern
“justice”, reform in the area of search and seizure was a result of Prohibition.

Lecture 1 December 2004

1961 Mapp v. Ohio (730)

Facts:
• Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal
police search of her home for a fugitive. Were the confiscated materials protected by the
First Amendment? (May evidence obtained through a search in violation of the Fourth
Amendment be admitted in a state criminal proceeding?)
Decision (Clark):
• The Court brushed aside the First Amendment issue and declared that "all evidence
obtained by searches and seizures in violation of the Constitution is, by [the Fourth
Amendment], inadmissible in a state court." It placed the requirement of excluding
illegally obtained evidence from court at all levels of the government.
Impact:
• Previous ruling (Wolf v. Colorado, Frankfurter 1949) that the 4th amendment clause did
apply through the 14th to the states. Lawyers knew that to make this effective that you
had to dismiss all evidence gained unlawfully in order to deter police at all.
• Silver Platter doctrine- federal prosecutor who had obtained evidence illegally handed it
over to state prosecutor where it was admissible, ie handed over on a silver platter.
• In Mapp v. Ohio, more than half the states had an exclusionary rule so it was more
compelling for the Supreme Court to overrule Wolf. Frankfurter, though, believed the
states to be an experimenting ground, so that they had an exclusionary rule shouldn’t
have necessarily influenced the court all that much.
• Overruling Wolf was a terrible blow to Frankfurter. Horwitz believed that Frankfurter
could see that his whole constitutional edifice was collapsing around him. He had a
stroke one year later.
• Black believed the bill of rights was totally incorporated through the 14th amendment. In
fact, this never ultimately prevailed.
• Brennan championed ‘selective incorporation’, which is to say that the Supreme Court
would apply most everything through the 14th amendment, but not everything would be

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 included because it wasn’t that important to include these—for example, the
constitutional requirement to have a jury trial in a all civil cases when more than $100 is
involved. This would be prohibitively expensive for low-stakes cases. So there is a
strong practical reason for avoiding total incorporation, which is the view that has largely
prevailed.

Betts v. Brady 1943

Facts:- The petitioner was indicted for robbery. He was unable to afford a counsel and he asked
the court to assign one for him. The court ruled that it was not its duty to provide the defendant
with a counsel, unless he was involved in a rape or murder case. The defendant was found guilty
and was sentenced to 8 years in prison. The petitioner filed for writ of habeas corpus arguing that
his 14th Amendment rights were violated.

Issue:- Did the 6th and 14th Amendments provide the petitioner with the right to a counsel?

Decision: No. The due process clause does not enforce it upon the states to provide counsels for
defendants in every type of criminal case. According to the court, "... in the great majority of the
States, it has been the considered judgment of the people, their representatives and their courts
that appointment of counsel is not a fundamental right, essential to a fair trial." Furthermore, the
petitioner was familiar with the criminal justices system, having been convicted of a crime
before. He also waived his right to a jury trial and his trial was conducted by a judge, which
favors the petitioner as far as the fairness of the trial is concerned. So it can not be determined
that the 14th Amendment provided the petitioner the right to a counsel and without which, a fair
justice was not served to him.

Gideon v. Wainwright (740)

Facts:
• Gideon lacked funds and was unable to hire a lawyer to prepare his defense. When he
requested the court to appoint an attorney for him, the court refused, stating that it was
only obligated to appoint counsel to indigent defendants in capital cases. Gideon
defended himself in the trial; he was convicted by a jury and the court sentenced him to
five years in a state prison. Did the state court's failure to appoint counsel for Gideon
violate his right to a fair trial and due process of law as protected by the Sixth and
Fourteenth Amendments?
Decision:
• In a unanimous opinion, the Court held that Gideon had a right to be represented by a
court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady.
In this case the Court found that the Sixth Amendment's guarantee of counsel was a
fundamental right, essential to a fair trial, which should be made applicable to the states
through the Due Process Clause of the Fourteenth Amendment.
Impact:
• Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be
guaranteed without the assistance of counsel. Those familiar with the American system of

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 justice, commented Black, recognized that "lawyers in criminal courts are necessities, not
luxuries."
• Black almost totally triumphs, and Frankfurter is defeated. Black had previously
supported the selective method because it was largely accomplishing incorporation of all
important amendments.
• This case unanimously, written by Black, applies the constitutional right to trial by
counsel to not only capital cases, but to all cases of significance.
• 1932, Powell v. Alabama—the court says the state may not deprive a person of counsel in
a capital case.
• Lawyers knew that the complexity of the case should determine when counsel was
needed.
• Subsequent to Mapp, several other aspects of amendments were incorporated, save some
less important ones such as the second amendment right to bear arms. Black won as a
practical matter, but selectivity actually was a better outcome because it left out some less
important or onerous amendments.
• 749- Harlan concurring with Black opinion. He says that you should not carry over the
whole body of federal law to the states, as this would disregard the disparity between the
interests of the federal government and the states. They are simply different entities in
different situations with different choices and consequences.

Horwitz’s Thoughts on Federalism

The Warren court justices matured during the New Deal, in which the federal government was
criticized along economic and racist grounds
• economics—the federal government did not protect the works and therefore aided the
race to the bottom for workers. The great depression would only be reversed by a
uniform national policy to revive production. The federal system was seen as out-dated
and anachronistic.
• Racism
• The court saw federalism as an obstructive mechanism to prevent racial justice and
economic prosperity. They were not, like Harlan, predisposed to care about federalism.

Procedural changes in criminal law

Faye v. Noia
• The Supreme Court makes habeas corpus available to state criminal convicts.
• The Court only takes a handful of cases from the states on criminal review. Most cases
are decided in the state courts. So it’s possible to be convicted without going to a federal
court.
• Indirect review gets you into a federal court on the grounds habeas corpus. This purpose
is to allow for the judicial review.
• The Court dramatically expanded the scope of habeas corpus—you could use this ground
to get a review at the federal level where habeas corpus applied.
• This opened up another way of testing the constitutionality of state criminal convictions.
It was not possible to use the entire federal judiciary to review state cases, whereas before
it was either the state or the Supreme Court. This was the procedural precondition for the
Supreme Court transforming the state criminal procedures.

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 • Without this case, the court could not have used selective incorporation. This is a big
case that is often overlooked.
• Does all this really change the on the ground reality for the police

Lecture 3 Dec.
- 1992 – a series of federal acts were struck down on federalism grounds
- 1937 – Stone says that 10th Amendment is a mere truism
o no independent legal force
o not what present court believes
o position of liberals before
! Brandeis – true progressive route is to reform at the state level
! ended with the New Deal (couldn’t talk about localities)
- Frankfurter # Brandeisian rhetoric
- Miranda v. Arizona
o 5-4 vote
o until decided, unclear how Supreme Court would deal with involuntary
confession
o Miranda asked for a lawyer at every step
o a Miranda warning or the functional equivalent is necessary
o Warren discusses Escobedo and pretends that Miranda followed it
o Miranda warning is a default rule
o technology has displaced problem of Miranda (can see if forced confession)
o there were tremendous differences in police systems for training and educating
o behaviors Miranda changed
! police solved crimes with confessions
! third degree
- did Warren behave like a DA? his father was murdered, and when his staff offered illegal
wire taps, he upheld the law
- Terry v. Ohio 1968
o Nixon was running on platform that the Warren Court caused crime; clear
concession from the Court
o gave the police the right to stop and frisk
o shifted attention away from the court
o “We needed to give one to the police.” –Warren
Chafee Report: The Third Degree
third degree – “employment of methods which inflict suffering, physical or mental, upon a
person in order to obtain in formation about a crime. The person subjected to such treatment
would usually be suspected of having committed or participated in the crime, but sometimes he
might be only a possible witness thereof.”
Widely used in New York, most in Buffalo, which prides itself on obtaining an “exceptional
number of confessions”- commissioner has stated “if I have to violate the Constitution of my
oath of office, I’ll violate the Constitution.” Not really existent in Boston, in varying degrees in
other cities.

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1961 Mapp v. Ohio – police break into home looking for hiding person, allegedly with warrant
although none produced at trial, handcuff Mapp, search home and find obscene materials. Clark
opinion: exclusionary rule of Fourth Amendment applies to states also through 14th Amendment.
Acknowledges Cardozo: “criminal is to go free because the constable has blundered”, but quotes
Elkins, “there is another consideration – the imperative of judicial integrity,” then writes, “the
criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence,” and quotes Brandies, “Our Government is the potent, the
omnipresent teacher … if the government becomes a lawbreaker … it invites every man to
become a law unto himself; it invites anarchy.”
Black concurs: he is not sure that Fourth Amd alone provides for exclusionary rule, but he thinks
it does together with the Fifth.
Douglas also concurs.
Harlan dissents, joined by Frankfurter and Whittaker: Court forgets judicial restraint. “For me, it
does not follow at all” that the right to privacy means that states must incorporate the same
configurations (i.e. exclusionary principle) of the Fourth Amendment as applies to federal
procedure.

1963 Gideon v. Wainwright – right to have defendant in all criminal trials, not just capital
(murder) trials. Black writes opinion, based on Sixth Amendment.
Harlan concurs, but again states that “I do not read our past decisions to suggest that…we
automatically carry over an entire body of federal law and apply it in full sweep to the States.”

1965 Pointer v. Texas – must be allowed to cross-examine witnesses against you in trial. Black
writes opinion, again based on Sixth Amd.
Harlan concurs, but provides same abjection to incorporating Sixth Amendment to state law,
calling this “another step in the onward march of the long-since discredited “incorporation”
doctrine, which for some reason that I have not yet been able to fathom has come into the
sunlight in recent years.”
Goldberg concurs, argues for incorporation against Harlan, saying 14th Amnd (in Harlan’s view)
would then apply to the States “only a watered-down subjective version of the individual
guarantees of the Bill of Rights [quoting Malloy v Hogan.]”

1966 Miranda v. Arizona – defendant “while in police custody was questioned by police
officers, detectives or a prosecuting attorney in a room in which he was cut off from the outside
world” … leading to confessions. Warren writes opinion. Says defendants were denied writes,
that Constitution does not “necessarily require adherence to any particular solution … our
decision in no way creates a constitutional straitjacket which will handicap sound efforts at
reform … however, unless we are shown other procedures which are at least as effective in
apprising accused persons of their right of silence … following safeguards must be observed:”
lists Miranda rights.
Harlan, joined by Stewart and White, dissents: decision “represents poor Constitutional law and
entails harmful consequences for the country at large.” Says intent is to just discourage
confessions of all types. “Nothing in the letter of the spirit of the Constitution or in the
precedents squares with the heavy-handed and one-sided action that is so precipitously taken by
the Court in the name of fulfilling its constitutional responsibilities.”

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1968 Terry v Ohio – Warren writes, allows police to “stop and frisk” without warrant. “this
question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police
activity … we approach the issues in this case mindful of the limitations of the judicial function
in controlling the myriad daily situations in which policemen and citizens confront each other on
the street.”
Douglas dissents, saying “to give the police greater power than the magistrate is to take a long
step down the totalitarian path.”

Kamisar “Closing Years of the Warren Court Era”

During last years of WC, “period of social upheaval marked by urban riots, disorders on college
campuses, ever-soaring crime statistics, ever-spreading fears of the breakdown of public order,
and the assassinations and near-assassinations of public figures … moreover, strong criticism of
the Court by many members of Congress and presidential candidate Richard Nixon, obviously
retaliatory provisions of the Omnibus Crime Control and Safe Streets Act of 1968 … [reduced]
vitality of WC’s mission in criminal cases”
In closing years, WC upheld informers privilege (allowing govt to withhold informer’s
identities), did not allow exclusionary rule for third parties, allowed mere evidence rule which
clears way for court-ordered surveillance systems.

WEEK 12

Lecture 6 Dec.
- Baker v. Carr 1962
o reapportionment case: should the Supreme Court even hear challenges to
legislative districting?
o “caused Frankfurter’s stroke”
! reversed Colegrove v. Green 1946
! third strand of defeat after:
• incorporation
• first amendment balancing test
! political questions doctrine is at the core of Frankfurter’s political restraint
• wrote treatise on saying that the Court shouldn’t get into questions
that should be answered by other branches or entailed no objective
standards
! 16 page dissent
o Whittakeritis = the inability to decide; didn’t participate in the final decision; “law
called for reversal, but not prepared to vote that way”
o how should Harlan write NAACP v. Alabama?
! freedom of association protected the NAACP – due process clause of the
14th Amendment
o Frankfurter had never before taken the federal v. state position on the first
amendment; Harlan had already taken and said that Frankfurter failed to make the
distinction # Frankfurter’s view will be lost
o real world
! shift from rural to urban society; refusal to redraw district lines

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 ! Tennessee (where case originated) – supposed to reapportion every ten
years but hadn’t for sixty years
! California – 10.7% could elect a majority
! 14 states – as much as 40% could
o JFK asks Archibald Cox, solicitor general, to write an amicus brief
! personal problem because friends with Frankfurter, had seen the
Frankfurter-Hand viewpoint
! tormented in role
! Frankfurter blames Cox for stroke
! Cox had thought it was not a constitutionally justifiable question
o Warren puts a lot of thought into assigning the opinion
! Stewart seems the natural choice because he’s on the fence
! however, Douglas might not agree with # assigned to Brennan
! Douglas writes a concurring opinion to bring Stewart in
o cleared way for Bush v. Gore being able to be decided
o caused vast array of voting rights
- Reynolds v. Simms
o what should be the standard for legislative districting?
o Frankfurter & Whittaker are replaced by Goldberg & White, who agree on this
issue

December 8 Lecture
Opening:
Since Brown, the SC viewed itself as having the role to protect minorities from politics.
However, Professor Rosen doubts the true power of the SC to effect social change, and asserts
that in reality, the SC will merely follow the dictates of politics. Professor Horwitz disagrees
with Professor Rosen, or at least thinks that the WC was an exception to the general rule of SC
passivity.
- The question that Horwitz would like us to think about is why would the WC constitute
an exception to SC powerlessness to effect social change? Or, more simply, how and why is the
WC unique?
- In answering this question, he encourages the consideration of particular facts without
trying to find general laws. He dislikes blanket statements or generalized models about the role
of the SC in history, and likes to consider how politics influences SC opinions. Consider this in
your essay writing "

REAPPORTIONMENT CASES

* 1962- Baker vs. Carr- This case established the legitimacy of judicial review for the SC.
Brennan argues that the SC should be able to hear the reapportionment cases because they are in
the domain of equal protection. In doing so, the WC redefined and restricted the political
question doctrine, to allow the SC to interfere in what previously had been considered a
political question.
Controversies surrounding this case: Should another branch of government hear the
reapportionment cases? Can the court employ neutral standards?
Vote: 6-2: Clark/Stewart are the swing votes.

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 - Harlan and Frankfurter dissent

* 1964- Reynold vs. Simms- “one person one vote”- both houses of state legislatures are
required to be based on population; previously only the lower house required to be based on
population
- Vote: 7-2 Goldberg replaces Frankfurter
- Cox hesitant
- Stewart/Clark dissent: thought districts did not need to be based on population as long
as rationally drawn.

THEORY OR REPRESENTATION IN U.S. HISTORY:

- Federal Analogy: Senate based on states
- yet the federal system was more a result of political compromise than constitutional
theory; i.e. the state-based Senate allowed protection for smaller states, which eventually worked
to the advantage of the South who wanted to treat blacks in the way they saw fit

- Framers- saw the second house legislature as different than the population-based house. They
intended it to be more like the House of Lords in English aristocracy, somewhat like an
oligarchy
- In 1789, no one thought that both houses should be based on population
- anti- democratic spirit and fear of the majority. The Senate was almost like
protection against majority rule

p. 780 Sourcebook- Harlan dissents in “one man one vote” because he does not believe
that this theory is grounded in constitutional history, and he is right. He cites 7 theories of
bicameralism
- he does not believe that just because the reapportionment cases involve the
word “equal”, that they are relevant to the equal protection clause, he cites the history of the 14th
amendment as having no intention to limit the power of the states to apportion their legislatures
as they saw fit. He believes that districting is a political question that is best handled by state
legislatures, who should be able to take into account factors such as: history, economic or other
sorts of group interests, area, geographical considerations, effective representation for sparsely
settled areas, availability of access of citizens to their representatives, theories of bicameralism,
occupation, an attempt to balance urban and rural power, and the preference of a majority of
voters in the state. Not to be able to take into account these factors is ridiculous

- 1868- Equal protection clause- Warren disagrees with Harlan that SC action needs to be
grounded in constitutional history, believes that the equal protection clause needs to be applied
within the framework of a “living constitution”

* 1966- Harper v. Virginia- Virginia poll tax is unconstitutional

- Justice Douglas overturns the precedent of the permitted poll tax
- p. 791- shows his opinion of a living constitution in that notions of what
constitutes equal protection change; cites Brown v. Board and Reynold vs. Simms as reflecting
the idea of a living constitution

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 “Likewise, the Equal Protection Clause is not shackled ot the political theory of a
particular era. In determining what lines are unconstitutionally discriminatory, we have never
been confined to historic notions of equality, any more than we have restricted due process to a
fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.”
- p. 792- Black dissents- does not believe in living constitution and instead
thinks that changes should be made through amendments, not through new interpretations by the
SC- should not be able to give the equal protection clause a new meaning- its meaning is fixed
Footnote: Brown was not about changing circumstances
- From a Justice-focused point of view, this case is interesting because Black and
Douglas, who usually agree, are at odds

* In 1962/64, the different Justices’ conceptions of democracy starts to greatly influence the
decisions

DECEMBER 10 LECTURE
- p. 816 Holmes famous support for the idea of a living constitution- “When we are dealing
with words that are also a constituent act, like the Constitution of the United States, we must
realize that they have called into life a being the development of which could not have been
foreseen completely by the most gifted of its begetters. I twas enough for them to realize or to
hope that hthey had created an organism; it has taken a century and has cost their successors
much sweat and blood to prove that they created a nation. The case before us must be
considered in the light of our whole experience and not merely of what was said a hundred
years ago”.
- For Holmes, the authority of the constitution did not come from rules laid down or
judicial precents or notions of original intention, but rather flowed from the “whole experience”
of nationhood- “what is authoritative is thus neither more nor less than our common
commitment to the flourishing of the mutual enterprise of nationhood”

p. 797 Cardozo’s support of idea of living constitution, reflected by Chief Justice Hughs’
following opinion: uses Chief Justice Marshall’s warning that “we must never forget, that it is a
constituion we are expounding”, “a constitution intended to endure for ages to come, and
consequently, to be adapted to the various crises of human affairs”.

- Until 1900, constitutional theory supported a static constitution. The idea of a living
constitution was adapted after Lochner- static constitution (1905) and partially developed by
Justice Holmes
- most justices today believe in the idea of a living constitution. Black constitutes
a notable exception.

- Democracy becomes a tool for constitutional interpretation through the doctrine of a “living
constitution”
- Before 1940s, only a handful of references toward democracy can be found, and
almost all of them were negative.
- After 1940s, the SC and the rest of the country starts to take more pride in
democracy. After WWII, democracy helped to distinguish us from our totalitarian
opponents

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 - Pride and reference to democracy probably reaches its high points after the WC in the
1970s, when it begins to become the less popular opinion (now notions of democracy are
employed more in the dissenting than the majority opinions)

- Reynold vs. Simms- expresses support for the idea of democratic representation
- Carolene Products Footnote: 1. Protects rights 2. Protects the political process
3. Protects discrete and insular minorities
- Strict scrutiny/judicial review, is encouraged in the domains of first amendment
freedoms such as speech, the press, and the electoral process
- The political process and the rationality test can only be legitimate if the state
legislatures are fairly elected. Thus the role of the SC is to preserve the political process
and legitimacy of the rationality test by taking the necessary steps to guarantee fair
elections at the level of the state legislature.

- Why has Democracy only been prized in the 20th century?

- History: Electoral College originally conceived of groups of notables elected by the
state, who then would vote for the president
- However, party divisions increasingly divided the states, such that the
notables rarely were making their own vote but were voting along party
lines.

- How the History of the Right to Vote Sheds light on the History of Democracy:
- initially the right to vote was restricted by race and gender
- 1790-1850- all restrictions on white males are removed (property qualifications
removed)
- 1857- Dred Scott= free blacks cannot vote, true for almost all states
- 15th Amendment- race restrictions taken away; blacks can vote
- not enforced, though, and in 1896, most blacks still cannot vote
- 1940- only 3% blacks are effectively allowed to vote
- 1940-47- 7% blacks have the right to vote
- 1965- blacks are finally allowed to vote in larger numbers, such that
their votes begin to equal the number of white votes
- 1920- women gain the right to vote

- Horwitz argues that by no means has there been a constant and regular expansion of votes to
all citizens, despite the eventual suffrage of blacks and women
- constant efforts have been made to keep immigrants from voting
Ex: 1882: Chinese Exclusion Act
- 1946- Congress finally stops restricting immigration based on race

- Bottomline: Democracy was obviously not defined by universal suffrage until the 1960s.
- Democracy has gradually become to include universal suffrage and an emphasis
on representation.
Ex: initiative and referendum, primaries

Baker v. Carr

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Appellants claim that a 1901 Tennessee statute allegedly distributes voting power for Tennessee
General Assembly election “arbitrarily and capriciously”. They claim that the resulting
“debasement” of their votes denies them Equal Protection through the 14th.
Brennan finds for the Court that the question of legislative apportionment is not a “political
question” that could not be decided by the courts, and is thus within the purview of the Judicial
Branch. The case is remanded to the District Court.
Frankfurter and Harlan dissent on four points:
1. Ruling asserts “destructively novel” judicial power, casting aside tons of judicial
precedent that asserted that the courts should not get into redefining or redistributing
legislative power.
2. The Court’s power depends entirely on public feeling for its moral authority—
maintaining this requires the Court to remain detached from political entanglements
3. The appellants did not truly have an abridged right—dissatisfaction with the scheme of
apportionment is a very different thing from disenfranchisement based on race, color,
religion or sex.
4. There is no uniform standard for representation—it is simply not true that “one-man, one-
vote” is a basic benchmark for legislative representation to the point where such a claim
can be supported by the Constitution.

Reynolds v. Sims
This case, three years later, answered most of the logistical questions raised by Baker.
Warren finds for the Court that:
1. Suffrage is tremendously important, especially because it is a force that allows for other
injustices to be righted. “Any alleged infringement of the right of citizens to vote must
be carefully and meticulously scrutinized.”
2. There is no excuse for allowing a minority to control a majority of political power: “Our
constitutional system amply provides for the protection of minorities by means other than
giving them majority control of state legislatures”.
3. Equal protection guarantees the opportunity for equal participation by all voters in the
election of state legislators.
4. The analogy that many States attempted to make between themselves and the Federal
level (where Senate seats are not doled out by population) is inappropriate, as states’
subordinate units were never sovereign (as the States themselves were).
5. Bicameralism (two-house legislature) is still permitted, as long as the basis for election of
both Houses is the same—populaiton.
6. Sufficient justifications for deviations from a population basis of representation include
mathematical difficulties, but not history alone or economic interests.
Harlan dissents, arguing that Warren’s opinion ignores history: the authors of the 14th
amendment clearly meant “equal protection” in no such sense. Further, he laments that the Court
declared unconstitutional all sorts of useful bases for deviating from population bases, including
history, a desire to insure effective representation for sparsely settled areas, availability of access
of citizens to their representatives, and attempt to balance urban and rural power, and even the
preference of a majority of voters in the State.
Stewart dissents, arguing that many rational plans for reapportionment attempt to levy other
interests against the majority of the population, and that really only two considerations should
cause a reapportionment to be declared inconsistent with Equal Protection: (1) irrationality and

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(2) systematic frustration of the will of the majority. He then explores two examples in which
the overrunning of other systems of representation by population bases does significant damage
to our sense of justice: Colorado and New York.

Lucas v. Forty-Fourth General Assembly of Colorado

This case is nearly identical to Reynolds, except for two crucial considerations: the Colorado
division is not clearly too independent of a population basis, and Colorado citizens (a majority of
them) chose a non-population standard as their preferred method of representation.
Warren dispenses with these differences, arguing that Colorado’s apportionment scheme
“clearly involves departures from population-based representation too extreme to be
constitutionally permissible”. Further, he argues that Colorado’s vote is irrelevant to the
Constitutionality of its system: “An individual’s constitutionally protected right to cast an
equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate.”
Clark dissents, disagreeing about how egregiously non-population-based Colorado’s
arrangement truly is. He also points out that the defense of mandating both houses of state
legislatures be offered on a population basis (that the Federal government’s permission of the
Senate to violate population concerns is justified by historical reasons) is invalid in Colorado’s
case, because Colorado’s constitution also contains provisions for a non-population-basis House
of the legislature.
Stewart dissents, and Clark signs on: these cases are not about denial of a right to vote, but
whether the 14th Amendment puts limitations on State legislatures’ electoral representation
schemas. He finds for two reasons that they do not: historically, there was no presumption by
Constitutional framers that representation by population should be a gold standard, and
realistically, one’s citizenship is not based on the effectiveness of his vote (contrast California to
Nevada). Stewart reasserts his two considerations for legislative representation approval: (1)
rationality and (2) lack of a systematic attempt to frustrate the will of the majority. He finds that
neither is negated in Colorado’s case.

Harper v. Virginia Board of Elections

Virginia residents sue their Board of Elections to have a poll tax (that prohibits persons from
voting without paying a nominal fee.
Douglas wrote the Court’s opinion, arguing that the poll tax draws lines between those whose
liberties (such as the franchise) are impinged and those whose are not, and that it draws them
along the dimension of wealth, which is equally disfavorable to sex, race, creed, etc. As such, a
poll tax does contravene the Equal Protection Clause of the 14th. He also dispenses with some
counterarguments, including his contention that (1) the poll tax does not limit incompetent voting
or otherwise improve the average capabilities of those who vote and (2) the interests of the State
should extend no farther than the establishment that the applicant is a qualified voter.
Black dissents, arguing that the Court is not reinterpreting the original meaning of the 14th, but is
instead adding new meaning according to its members’ notions of modern goods and rights. If
the Constitution’s interpretation must be changed, Black insists, it must be changed for historical
reasons (new insights into what the Framers meant) or it must be amended.
Harlan also dissents, joined by Stewart. The pair argue that the poll tax probably should be
removed from American society, but that the Supreme Court is not the agent to do it. These
justices believe that the legislature, and the legislature alone, should be able to make such
decisions.

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Horwitz, The Constitution of Change: Legal Fundamentality Without Fundamentalism
The progressive emphasis on constitutional change—initiated by progressives in response to the
“static Constitution” model of the Lochner era—found much support from Brandeis, Wilson, and
Cardozo, only to fizzle out because of the irrelevance of its justification in later times. That
justification was “changed circumstances”—Brandeis’ idea that the meaning of the Constitution
must adapt to the new conditions of later eras. This later became the same distinction between
“law in books” and “law in action”—the idea that freedom of contract was fair in the law, but far
from it in reality. Cardozo also supported the notion of the changing Constitution, but was
headed off by Chief Justice Hughes in the majority opinion of the Minnesota Mortgage
Moratorium Case, who wrote that the Constitution must be adapted to the various crises of
human affairs.

McKay, Malapportionment and Federalism, p.798-810

Brief Summary
Malapportionment, i.e., unequal population distribution in representation, in states has
contributed to its decline in power. Most of this is due to antiquated state constitutions, small-
county legislators who want to preserve their power, and populations shifts from rural regions to
urban regions, thereby creating uneven population distribution.

Detailed Summary
• There has been a decline in the power of the state government and an increase in the power
of the national government, thereby creating a rift in the very idea of federalism. This
decline cannot be attributed to low spending because state spending has increased
significantly more than national spending. Rather, this decline in state power can be ascribed
to the states’ inefficiencies to resolve the problems that are delegates to them and specifically
to malapportionment in state governments.
• Malapportionment has historically been the rule rather than the exception. Part of the
problem is that there have been demographic changes in the US. A primarily agrarian
society has shifted into an urban/suburban society, where populations are heavily centralized
in one area. This has created difficulties when it comes to representation because there are
now overlapping representative regions where representation simply does not make sense.
• Causes of malapportionment
! State constitutional limitations: some state constitutions require that each county is
given representation in one house and other constitutions provide that no countries will
have more than one representative in one chamber. Both of these requirements create
distortions in the equal-population principle, especially now that the populations have
become unevenly distributed:
! Failure to reapportion as required: in order to get around apportioning representation
by these antiquated state constitutional requirements, many states failed to reapportion at
all. This was the case in Baker v. Carr and Reynolds v. Sims, where it was argued that
equal protection under the 14th amendment was denied.
• Problems of Apportionment

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 ! Essential question: should areas of growing population be given more legislators or
should areas of declining population be allowed to retain their control?
! Individual legislators: individual legislators want to keep their jobs so reapportionment
plans that dislodge the least amount of legislators are most favorable.
! Partisanship: Republicans usually don’t like it, Democrats usually do but with caution.
! Nonlegislative reapportionment: some states have tried apportionment commissions but
to no avail because state constitutions mandate inequality.
• Consequences of malapportionment
! It has now been established through Carr that there is a right of franchise so justiciability
of the reapportionment cases has been justified.
! Discrimination by design: malapportionment results in perhaps discrimination of the
underrepresented areas (e.g., denial of needed resources) or simply inattention to urban
problems, although a huge portion of taxes come from these areas. Therefore, taxes are
not being evenly spent.
! Discrimination by oversight: attention has been delegates to local authorities who do
not have the ability to resolve some problems, which could only be resolved by the local
authorities.

Post, Constitutional Domains: Democracy, Community, Management

Chapter I: Theories of Constitutional Interpretation
Post identifies judicial review as the power of the Court to reinterpret the very fabric of society;
if the Constitution is not just a historical document, then Justices who interpret it are not just
historians, but speak with an authority that comes from society and the nation. Where does this
authority come from? It must be the Constitution itself, because the Court only exists to interpret
the Constitution. Then what about the Constitution empowers it to represent this society and this
nation? The three sources of power can be seen in the three methods of interpretation:
1. Doctrinal interpretation: the Constitution’s authority comes from its existence as an
unassailable postulation of law—the fact that all Supreme Court decisions must adhere to
a strict set of Constitutional and precedential concerns gives the Constitution, and the
Court, authority. This authority rests mainly on stare decisis (the doctrine of judicial
precedent), as it is only public confidence in the consistency of judicial interpretation that
allows the Constitution to represent a consolidated doctrine.
2. Historical interpretation: the Constitution’s authority comes from its place as a contract
between government and citizens. The most common form of the historical interpretation
required to understand this contract is an analysis of the intent of the Framers as a means
of understanding the agreement. This means of justification of Constitutional authority
has waned recently, partly because of evidentiary difficulties (do we really know what
people were agreeing to?) and partly because of contractual difficulties (no one alive
today actually signed the Constitution or ratified it), which leaves the Constitution’s
authority as a document of consent dependent upon hazy details and a hypothetical
consent (in which people nowadays “would” consent to the Constitution.)
3. Responsive interpretation: This form of interpretation has risen from the ashes of
historical interpretation, because it considers the fundamental ideals behind the
Constitution rather than the actual historical reality. This theory holds that constitutional
authority stems from the Constitution as a framework that expresses our most important

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 ideals, that responds to our social needs and aspirations in a way consistent with the
fundamental ideals of society.
Post concludes this chapter by saying that many theorists see the use of multiple theories of
justification by the same justices as indicative of the unprincipled nature of Constitutional law.
However, he asserts that the independent nature of his three sources of Constitutional authority
allows us to see multiple supports for a Constitutional argument in a more permissible light.
Chapter V: Between Democracy and Community: The Legal Constitution of Social Form
This chapter attempts to illustrate a central dichotomy in American life: community versus
democracy. If law is an agent of community, then it must serve to enforce social norms and
uphold common ideals (such as prohibiting flag burning.) However, if law is an agent of
democracy, then it must serve to maintain the autonomy of individuals and the ability of
individuals to transcend socially-given choices (flag burning, as a means of expression, must be
permitted.)
Post identifies America as a “democratic community” – a situation in which democratic and
communitarian ideals are not only required, but are mutually reinforcing (without communitarian
ideas of civility in public speech, is free speech valuable at all? Without a notion of free speech,
the communal values of propriety have no meaning because there is nothing to withhold from
oneself.) And he finds that in American cases, these two ideals seem to be in immediate conflict:
flag-burning, for instance, or emotional damages for unconscionable free speech. However, in a
general sense, he believes that these ideals do not conflict; by comparing the dichotomy between
community and democracy to that between Mead’s two components of individual personality,
the “I” (which represents self-expression) and the “me” (which represents social ideals that one
maintains), Post attempts to show that community and democracy are necessarily complementary
and interdependent.
The law is the instrument of a tension between community and democracy, choosing between the
two as the situation demands. “The result is a hodgepodge of a conflicting legal judgments,
certain to frustrate purists of either camp, but nevertheless explicable as an ongoing process of
dynamic, contextual and practical accommodation. In this regard, the ultimate revelation of the
law is merely the shape and contours of our own deepest commitments.”
Chapter VII: Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public
Discourse
This chapter is highly theoretical and will mostly likely not be useful for the exam. However, it
contests the “collectivist” push for reform of First Amendment jurisprudence, which alleges that
individual autonomy is irrelevant for the telos of the First Amendment, but rather that the First
Amendment attempts to create a situation in which debate is maximally rich. Thus, the
collectivist reformist is not interested in supporting the individual right to say whatever one
wants, but rather the collective right to hear everything that “should” be said.
Post attacks the collectivist theory by attacking its strongest proponent, Alexander Meiklejohn.
Meiklejohn’s theory postulates public discourse as a sort of “Town Hall” meeting, where citizens
are the attendees and the State is the moderator. Thus, he says, the State should allow only
discourse that substantively improves the Town Hall—people in the meeting have no right to say
whatever they want, but no one may be silenced if he or she has something valuable to say.
Post attempts to destroy this analogy, by saying that Meiklejohn misunderstands public
discourse. The State is not qualified or prepared to serve as a “moderator”, because it will never
know when everything that must be said has been said. In addition, these value judgments (what

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“must” be said? What is valuable in the first place?) are contestable in society (and not to a
moderator of a Town Hall meeting), the analogy falls further apart.
Post alleges that the “disorder” of free speech is not to be lamented, but is rather the only
expression that truly free speech can take. There is no way of reforming the First Amendment to
allow only collectively valuable expressions; rather, we must understand the First Amendment as
a protector of individual autonomy.

John Hart Ely, “Policing the Process of Representation: The Court as Referee,” from
Democracy and Distrust: A Theory of Judicial Review
The need for judicial review comes from “the realization that we have a Constitution that needs
filling in” - but different philosophies about how to fill it in.
Warren Court’s reputation as “activist” is deserved. ***BUT*** the Warren Court wasn’t trying
to find fundamental values, as was favored by the academy at the time. Rather, they were
concerned with PROCESS.
For example: Criminal procedure cases, dealt with the question of “how much administrative
process is due before serious consequences may be visited upon individuals”
Free expression cases: “process by which the laws that govern society are made”
Reapportionment - not decided out of desire to enact values, but to ensure that the
political process, which is where those values are identified, weighed, and accommodated, was
“open to all on a basis approaching equal.”
Racial discrimination cases not based on “x is so fundamental that it had to be
provided/protected” but on “if government officials are going to provide/protect x for some, they
had better accommodate all the same way, or give a good reason why not”
Overall, the Warren Court dealt with two broad concerns: clearing the channels of political
change, and correcting certain kinds of discrimination against minorities. These goals were
essentially “participational”, and aimed at broadened access to, respectively, the processes and
bounty of representative government.
This two-pronged approach was foreshadowed in Carolene Products footnote.
Paragraph 2 = political processes (“whether legislation which restricts those political
processes...is to be subjected to more exacting judicial scrutiny”)
Paragraph 3 = what majorities do to minorities (laws directed at “discrete and insular
minorities”)
(The first paragraph doesn’t seem to fit with the other two; Justice Stone’s clerk Lusky later
revealed that paragraph 1 was added at the request of Chief Justice Hughes)
In this approach, there seems to be a tension between popular control and egalitarianism - what
happens when the majority clearly outvotes the minority and deprives them of certain rights?
Ely says both themes are concerned with participation, but there is still tension there - how do
they fit together and form a coherent political theory?
What distinguishes the US government is that it is a process of government, not governing
ideology. “Constitution must prescribe legitimate processes, not legitimate outcomes, if...it is to
serve many generations through changing times.”

William J. Brennan, “My Encounters with the Constitution”

Reliance on “intentions of the framers” as Constitutional philosophy is basically “arrogance
cloaked as humility”

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It is arrogant to pretend that from our vantage point we can gauge the intent of the framers on
application to specific, contemporary questions. Any evidence we can get is ambiguous at best,
and all it tells us is that the framers didn’t agree on the application or meaning of particular
provisions, and “hid their differences in cloak of generality.” The distance of time makes it even
more difficult. Originalists “have no familiarity with the historical record.”
Though originalists claim their approach is depoliticizing, it usually resolves textual ambiguities
by coming down against the claim of a constitutional right. This is a political choice - antipathy
to claims of minority rights against the majority.
Originalism doesn’t allow social progress and adaptation of the laws to changing circumstances.
The framers understood the difference between faith in democracy and blind faith; that’s why the
Constitution places some values beyond power of any legislature.
To remain faithful to content of Constitution, the Court must allow application to modern
circumstances.

Sanford Levinson, “Holmes, Bickel, and the Ravages of Heterogeneity,” from

Constitutional Faith
The contrast between the views of the Constitution as a guarantor of justice vs. as an instrument
of sovereign will is made clear in thought of Oliver Wendell Holmes.
According to Holmes, government is a reflection of power, and should conform to “wishes of the
dominant power.” Holmes is not concerned with notions of morality, justice.
His view has nothing to do with right of majority to embody their opinions in law:
Holmes wrote a dissent in 1911 case that struck down an Alabama law that would’ve made it
crime for a black worker to walk off a job for which he had received advance payment. The
majority said the law violated 13th Amendment - Holmes said Constitution didn’t need to be
read to prevent “tyrannical” laws.
Levinson: this raises the question - why should the Constitution be affirmed rather than
questioned?
Frankfurter, a disciple of Holmes, says a judge must separate his own private judgment from
public. But Levinson says this is dangerous, because it transforms the law into pure
proceduralism - a recognition of public will as mediated by the institutions authorized by the
constitution to pass laws.
Procedures are important, but majority rule is not same thing as Constitutionalism as originally
defined. Necessary to an understanding of constitution is its role in limiting the ability of
majority to enact its will.
Majority rule and Constitutionalism are not antithetical, but exist in tense equilibrium.
“Any argument for the moral integrity of majority law must identify what it is about certain wills
and their manifestations that makes them worthy of respect”
Alexander Bickel - Harvard Law grad, Frankfurter clerk, Yale Law prof - came close to
articulating this moral quality.
In 1962 Bickel published influential book that somewhat defended role of the Supreme Court in
articulating fundamental values; he later grew disillusioned and switched positions in The
Morality of Consent:
The Constitution was made for people of fundamentally differing views
But social life demands some unifying principles, which can be found in the “secular
religion” of American republic

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 Very few of these principles are found in the Constitution - rather, there is “American
tradition” that can be discerned
But according to Levinson, Bickel doesn’t lay out what these principles are. Also, there’s a
conflict between “fundamental differences” and “American secular religion” that Bickel doesn’t
resolve.
Today it’s clear that there are fundamental differences.
Bickel doesn’t want the pace of change in moral conceptions to be forced, but he doesn’t say
why those tyrannized by the existing legal order should recognize it as legitimate, or what the
morally unifying force is.
Indeed, in country with such diverse political viewpoints, constitution becomes the ONLY
shared moral and social vision. However, it can’t remain “in transcendent aloofness ‘above’
ordinary life,” and must be interpreted in order to articulate the norms worth

Powe, p.199 (The Political Thicket)-205, 239-255, 265(The Poll Tax)-271

The Political Thicket: Baker v. Carr
• Baker v. Carr: the Tennessee malapportionment case
! Warren considered Baker v. Carr his most important case because it set into motion the
redistribution of legislative power.
! In the Colgrove v. Green (1946), a previous malapportionment case, Frankfurter said that
the case was nonjusticiable because it was a political question and the federal court could
not dictate judicially enforceable standards. Frankfurter saw this as a way to prevent
public backlash against the Court.
! Brennan argued in the majority opinion apportionment is not a political question; rather it
was protected under the Fourteenth Amendment. Brennan was results-driven.
• Reaction to Baker
! Baker was politically popular. Frankfurter didn’t need to worry about the political thicket
because people wanted this move (especially because it was a triumph for urban areas).
States would have never made the switch without the decision.
! Opposition said that if people valued freedom, they should curtain judicial legislating.
! Frankfurter said it was the public rejection of his decision that caused his stroke two
weeks after the decision of the case. "

Reapportionment Cases
• The poll tax had been used to depress African-American voting. It was abolished with the
24th Amendment.
• Gray v. Sanders: Georgia used a voting system that did not use equal representation and it
was decided by the Court in an opinion led by Black that it deprived voters of their right to
equitable say. The famous phrase “one man, one vote” came out of this case.
• Wesbury v. Sanders: Black said equal representation was desired by the framers because “by
the people” was used. Harlan tried to counter this argument by saying that he didn’t believe
the Framers thought that there needed to be equitable representation (look at the US Senate).
• Reynolds v. Sims: Warren declared that equal protection was an absolute or something pretty
near thereto. Furthermore, he said that our society is based on the idea of equal
representation and that the right to vote is a fundamental personal right and any deprivations
will be meticulously scrutinized. The Court believed that equal population distributions

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 would prevent partisan gerrymandering. Warren saw this case as the application of Baker
but in reality in went much further.
• Argument about reapportionment decisions: the Court was not concerned with tyranny of the
majority (urban centers over rural areas) and only cared about protection of minority rights.
• Justices’ positions
! Warren believed that equal right was absolute right under a system of equal
representation and therefore 14th amendment covered equal districting.
! Harlan dissented in all reapportionment cases, concluding that the fourteen amendment
was not intended to cover voting. He believed that nothing precluded minority rural
dominance of legislative bodies unless those with power voluntarily surrendered it.
! Clark felt that the majority went beyond the necessities, especially in rejecting the Senate
analogy.
! Stewart said that majority was converting political philosophy into a constitutional rule.
He believed that the majority must have a genuinely rational plan and that this was all.
• Reaction
! There was no latent consensus that equal population districts in both houses were a good
idea.
! Some people thought Reynolds was a second constitutional convention. The Court’s
refusal to recognize the Senate analogy offended some people. Some legislators tried to
force a constitutional amendment but it failed.
! Eventually states became n compliance with Reynolds, and people either got tired of it or
found it rather appealing so the issue ultimately came to an end.

The Poll Tax

• The Court struck down the poll tax case of Harper v. VA Board of Elections. In the majority
opinion, Douglas said that the right to vote is a fundamental right (although not necessarily a
constitutional right). Critics said he is trying to legislate good policy. Black, Harlan, and
Steward dissented, saying that the poll tax was a rational policy. They argued against
“unrestrained egalitarianism.”
• Brennan emphasized mathematical ideal not supposed commonality of interests of the voters
when it came to reapportionment.
• Kramer established the premise of the Warren Court: legislation is entitled to a presumption
of constitutionality because it is the product of the democratic process. Some argue that in
cases where the process is challenged, mere rationality is not enough; rather strict scrutiny
should be employed.
• In Powell v. McCormack, Warren established that Congress could not exclude an elector on
any group except those outlined in the constitution. Further, the Court cannot be denied
justiciability just because something acts somewhat like a political question. After all, the
Court is the final interpreter of the Constitution.

WEEK 13

LECTURE – December 17th

18th century constitution protected people from things - negative rights- freedom from
20th century, constitution is seen as providing positive rights - freedom to - full employment,
welfare

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Equal Protection Clause (EPC) and positive rights expanded in late years of Warren Court -
substantive equality
Griffin v. Ilinois: Black rules that EPC requirs that defendant be given free copy of transcript to
appeal
Frankfurter concurs - once tate gives right to apeal, it must allow equal opportunity to appeal
(and hence a free transcript) - rankfurter relies on due process clause
Minton, Burton, Reed, Clark dissent - anyone can appeal - state is not required to provide for
economic equality
Douls v.California: right to a lawyer provided by the state even on appeal
Harlan dissents: states need not lift poor - this would read concept of leveling into constitution
Horwitz: state has monopoly on criminal justice, so ought to provide equal access - this doesn't
mean a wholesale levelling of rich and poor
Shapiro v. Thompson – 1968 – Brennan wrote opinion, Black and Warren were in the dissenting
minority – Brennan strikes down welfare assistance laws requiring one year residence
requirement, under EPC – Brennan claims that this divides society into two classes, only one of
which can receive welfare aid
Harlan criticizes the decision: strict scrutiny ought not be applied to things like welfare
assistance programs – wealth is not a suspect topic, like race is – the extensions of strict scrutiny
are uncalled for – there is a reasonable state interest in restricting welfare to those who have
lived in the state and contributed to its economy

Horwitz: to what extent does EPC always require equal access to a right, once you define that
right?
Yet Shapiro has not been so controversial, even though even Warren opposed it - Even currently,
in the Rehnquist Court, residency requirements have been struck down, with Shapiro being cited
(constitutional right to travel among 50 states cited as reason)
Regardless of the cited reason, we can recognize that there is some aspect of leveling in Shapiro,
and even the Rehnquist Court has upheld it
Goldberg v. Kelly – 1970 – procedural due process right to a hearing before government can
revoke welfare benefits – this case was decided after Warren’s retirement, and yet is a classic
Warren Court case – welfare no longer legally regarded as a gift that the government could
revoke at any time on its own terms, but as a right
Charles Reisch wrote a famous article about “due property” – new property is no longer tangible,
but are things like rights to welfare benefits – a profession is more valuable than a home, because
you can always get a home if you have the right status – occupational licenses (e.g. doctor) are
worth a fortune
Driver’s licenses, utility monopolies – these are all kinds of property that derive from
government giving out rights
Fleming v. Nestor – individual can be deprived of social security benefits for lying about
communism – but even so, those benefits were admitted to be property, in this case

Griffin et al v. Illinois - 1956

Illinois law gives right to appeal conviction, but to be granted appeal, defendant often must
provide trial transcript, which they must pay for. Griffin et al convicted of armed robbery, and
petitioned that they should be provided certified transcripts without cost because they could not

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afford the fee, and that the failure of court to provide would violate the due process and equal
protection clauses of 14th Amendment.
Majority voted to overturn conviction - Black, Warren, Douglas, Clark (Frankfurter
concurring)
The state not required by the Federal Constitution to provide appeals, but if it does, it can’t do so
in a way that discriminates against indigent defendants.
Frankfurter, concurring - Basically the same: due process doesn’t *require* granting of
appeals, but once it’s decided to allow them, have to give people access. Also says State doesn’t
necessarily have to give appeals to convictions for capital offenses.
Dissent - Burton, Minton, Reed, Harlan
It is desirable to give free transcript to poor defendant, but it’s not a violation of equal protection
if the they don’t, and the Court shouldn’t invalidate precedings where it hasn’t been provided. If
State wants to hold that courts should provide free transcripts, should be done through legislature
rather than Supreme Court.

Douglas v. California (1963)

Indigent defendants in California appeals court tried to get counsel appointed to them. Appellate
court went through usual state procedure of making “independent investigation of the record” to
determine if it would be advantageous to defendant or helpful to court to have counsel
appointed., and stated that “no good whatever would be served by appointment of counsel.”
Majority voted to reverse - Douglas, Warren, Goldberg, Black, Brennan, Clark, White
Denial of appointment of counsel is discrimination against the poor, since under present practice
of appeals court, “the type of an appeal a person is afforded...hinges upon whether or not he can
pay for the assistance of counsel.”
Only concerned with first stage of appeal, which is granted as a right under state law, and “we
need not now decide” whether counsel has to be provided beyond that. “Absolute equality is ot
required; lines can be drawn and are drawn and we often sustain them.”
Dissent - Harlan, Stewart
Majority seems to be using Equal Protection (EP) and Due Process (DP) clauses of 14th
Amendment. But EP doesn’t really apply, because EP doesn’t impose on States “an affirmative
duty to lift the handicaps flowing from differences in economic circumstances.” When judged
solely under DP, the appeals court decision doesn’t violate state law.

Shapiro v. Thompson (1969)

Pennsylvania, Connecticut, & DC provisions denying welfare assitance to residents who haven’t
lived within their jurisdictions for at least one year immediately preceding their applications for
assitance.
Majority - Brennan, Fortas, Douglas, Marshall, White, Stewart
Waiting period aimed at “inhibiting migration by needy persons into the State”
unconstitutional - all citizens must be free to travel throughout length & breadth of land,
uninhibited by ...which unreasonably burden or restrict this movement.” In moving, “appellees
were exercising a constitutional right, and any classification which serves to penalize the
exercise of that right, unless shown to be necessary to promote a compelling government interest,
is unconstitutional” - violation of equal protection, both against poor and against residents of
other states
Dissent 1 - Warren, Black

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Not a question of whether Congress can authorize states to violate equal protection, but whether
Congress, under its commerce powers, can impose residency requirements. “Our cases require
only that Congress have a rational basis for finding that a chosen regulatory scheme is necessary
to the furtherance of interstate commerce.”
Dissent 2 - Harlan
“Compelling interest” test on which majority opinion is based ignores rule that a statute does not
violate EP if it’s rationally related to legitimate government objective. Two branches of
compelling interest doctrine: 1. statute is based on “suspect” criteria, and 2. violates
“fundamental rights.” But wealth is not suspect criterion, and Court’s use of “fundamental
rights” is arbitrary and subject to abuse.

“The New Property,” Charles A. Reich

[This one’s not even close to being done. It’s a long-ass article.]
Basic summary - Definition of property has changed over the years. Wealth is now defined in
terms of government largess, which is*. In order to protect individual autonomy and property
rights in this new welfare age, legal system must be put into place*.
A. Examples of government-created wealth:
Income & benefits. Government is a direct source of income for many, not through
public job, but legal status: Social Security, unemployment, welfare, veterans benefits. Principal
source of income to substantial segment of community.
Jobs. > 9 million people directly employed by federal, state, or local government. Has
increased steadily since US has existed and likely to keep increasing. Add 3 or 4 million in
defense industry, which is primarily on government funds, and 15-20% of labor force receives
primary income from government.
Occupational licenses. Licenses required before one can engage in certain jobs, like
medicine, forest guidance. Dispensed by government, and make it possible for holders to receive
their chief source of income.
Franchises. Partial monopoly created & handed out by government. Because
government limits number of franchises, they can be sold for very high profits and can be source
of wealth. NYC taxi medallion, television channels, liquor licenses, etc.
Contracts. 50 billion/year in defense spending. Contracts are like subsidies: virtually
impossible to lose money on them. Some businesses make government their pricipal source of
income.
Subsidies. Like welfare for businesses that are unprofitable for one reason or another.
Agriculture gets subsidies to help it compete against better organized sectors of economy, and
shipping industry because of competition from foreign lines. Also, airlines, housing, scientific
research.
Use of public resources. Government-owned resources available for use by individuals
or businesses for free. Examples: public lands; energy sources; travel routes; radio-television
spectrum; and many more.
Services. Just like resources. Postal service; insurance; police departments; public
transportation. Most important government service = education.
B. Importance of Government Largess
Government expenditures make up large percentage of total income, not even counting
intangible services; proportion is increasing.

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Some people’s dependence on government funds is involuntary. Often government income
substitutes for, rather than supplements, other forms of wealth, eg. Social Security.

Amalgamated Food Employees vs. Logan Valley Plaza (1968)

- Marshall majority
- Black dissenting
PEACEFUL PICKETING – FIRST, FOURTEENTH AMENDMENT

Case summary: Members of a labor union picketed a supermarket in the Logan Valley Plaza
shopping complex. The demonstration was peaceful and was held on the parcel pickup area in
front of the supermarket. The Pennsylvania court issued and affirmed an injunction, saying the
protesters were trespassing on private property.
Held by Marshall: Reversed. The majority finds that the injunction violated the First and 14th
Amendment rights of the protestors. Peaceful picketing in a location generally open to the public
is protected by the First Amendment (cites other cases). “Streets, sidewalks, parks, and other
similar public places are so historically associated with the exercise of First Amendment rights
that access to them for the purpose of exercising such rights cannot constitutionally be denied
broadly and absolutely.” He says the roadways and sidewalks of the shopping center are the
functional equivalent of streets, and the center is like a business block in a city. “Logan Valley
Mall is the functional equivalent of a ‘business block’ and for First Amendment purposes must
be treated in substantially the same manner.” He does admit though that property owners can
regulate speech and activity on their property.
Concurrence by Douglas: Douglas says “Picketing is free speech plus, the plus being physical
activity that may implicate traffic and related matters. Hence the latter aspects of picketing may
be regulated.” So the parts of the injunction preventing the picketers from interfering with
deliverymen, etc, are valid. But making them stand several hundred feet away “is it make
private property a sanctuary from which some members of the public may be excluded merely
because of the ideas they espouse.” Douglas hints, though, that it should only be allowed
because the picketers were protesting something directly related to the business of the
supermarket (labor conditions).
Dissent by Black: Black says the entire injunction is valid because the property is owned by
Logan Valley Plaza and therefore is private property. He says if the court is going to “take a part
of Weis’s property to give to the pickets for their use, the Court should also award Weis just
compensation for the property taken.” Black also says, “Picketing, that is patrolling, is not free
speech and is not protected as such.” The picketers can dissent, but Weis doesn’t have to give
them a place to do it.
Dissent by Harlan: Says it would have been preferable to decide the case on the grounds of
“pre-emption.” The courts of Pennsylvania have made decisions that would only be appropriate
for the national Labor Relations Board. Harlan wished this had been the grounds because it
would avoid Constitutional interpretation, but since it was not brought up by either counsel or by
the PA Supreme Court, the “point is regarded as abandoned or waived.”
Dissent by White: “I do not agree that when the owner of private property invites the public to
do business with him he impliedly dedicates his property for other uses as well. I do not think
the First Amendment, which bars only official interferences with speech, has this reach.”

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

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ABORTION CLINICS – UNDUE BURDEN – CHANGING CIRCUMSTANCES

Abortion clinics and physician challenged on due process grounds the constitutionality of the
1988 and 1989 amendments to the Pennsylvania abortion statute.
The Supreme Court – Justice O’Connor, Kennedy and Souter – held that the doctrine of stare
decisis requires reaffirmation of Roe recognizing a woman’s right to choose abortion before fetal
viability 2) undue burden test rather than the trimester framework, should be used in evaluation
3) the medical emergency definition of Pennsylvania was sufficiently broad that it did not
impose an undue burden 4) parental consent was okay but spouse notification was not.
The three Justices delivered the opinion of the court with Stevens joining in part.
• decision best summarized in Stewart’s dissent in Mapp: a basic change in the law upon a
ground no firmer than a change in our membership invites the popular misconception that
this institution is little different from the two political branches of the government.
• In constitutional adjudication as elsewhere in life changed circumstances may impose
new obligations and the thoughtful part of the Nation could accept each decision to
overrule a prior case as a response to the Court’s constitutional duty. Because the case
before us presents no such occasion it could be seen as no such response.
• The court could not pretend to be reexamining the prior law with any justification beyond
a present doctrinal disposition to come out differently form the Court in 1973 (so as to
overrule precedent of Roe)
• Draws comparison from overturn of Lochner by West Coast Hotels v. Parrish and Plessy
by Brown, in both cases circumstances changing

Grey, “Do We Have an Unwritten Constitution?”

ORIGINALISM- THE PURE INTERPRETIVE MODEL OF REVIEW

Grey reviews the arguments for originalism (which he calls the “pure interpretive model”
of judicial review) espoused by those such as Justice Black, and then proposes reasons that might
legitimate a second approach to judicial review which accepts “the Court’s additional role as the
expounder of basic national ideals of individual liberty and fair treatment, even when the content
of these ideals is not expressed as a matter of positive law in the written Constitution” (921). He
suggests than when evaluating this position, it is necessary to consider the wisdom of leaving
decisions about what these national ideals are to a branch of government that “possesses neither
purse nor sword” but is also not democratically elected. He writes that if the common-law model
wherein law develops on a case-by-case basis is legitimate, this model could apply to (and thus
legitimate) law evolving through Supreme Court decisions.
Finally, Grey writes that although it was important to the framers to write down the
fundamental laws of the nation in the Constitution, it was still “generally recognized that written
constitutions could not completely codify the higher law” (921), as is explicitly recognized in the
ninth amendment. He then writes “As it came to be accepted that the judiciary had the power to
enforce the commands of the written Constitution when these conflicted with ordinary law, it
was also widely assumed that judges would enforce as constitutional restraints the unwritten
natural rights as well…Aware of that history, the framers of the 14th amendment reconfirmed the
original understanding through the ‘majestic generalities’ of section I. And ever since…the
courts have openly proclaimed and enforced unwritten Constitutional principles” (921). He ends

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with the modest assurance that he has just laid out a framework through which to justify this
approach, and more thorough arguments will have to be made to do so.

Rorty, “What’s Wrong with Rights?”

POLITICAL MORALITY

Rorty’s main point in this article is that the rhetoric used in politics to advocate measures to help
the nation’s poor, down-trodden, and discriminated-against stresses that measures must be taken
because they protect infallible rights, and not just because they will help make people’s lives
better. He suggests that this rhetoric “makes political morality not a result of political discourse
– of reflection, compromise, and choice of the lesser evil – but rather an unconditional moral
imperative…” (882). He succinctly restates his main point when he writes “The difference
between an appeal to end suffering and an appeal to rights is the difference between an appeal to
fraternity, to fellow-feeling, to sympathetic concern, and an appeal to something that exists quite
independently from anybody’s feelings about anything – something that issues unconditional
command” (882). He argues that this rights approach often leads justices and others to feel a
need to justify decisions through abstract arguments that often lead to an impasse.
Rorty also argues that the repression of and cruelty towards others that needs to be
remedied is really caused by both sadism (which he defines as “the use of a person weaker than
ourselves as outlets for our resentments and frustrations, and especially for the infliction of
humiliation on such people in order to bolster our own sense of self-worth”) and rational
calculation due to competition over resources. He claims that the recent focus on the former
cause has caused many to neglect the latter one.

Horwitz, “Rights”
COMPETING THEORIES ON RIGHTS

-The article is an attempt o define the controversy and to suggest the ways in which theories of
rights have both helped and hurt the struggle for a more just society.
-Since the ‘30s, the concept of rights have worked to create a legal and political culture that has
legitimated the protection of civil liberties for political/religious/racial minorities and as well as
cultural minorities/women/and homosexuals/and the criminally accused (the right to privacy).
-We hesitate in applauding the expansion of rights to protect the weak and powerless because of
our constitutional history. Only during the New Deal did the discourse of rights begin o aid the
weak/powerless. Few legal thinkers of the time considered natural rights as anything more than
an intellectual illusion developed in an era of laissez-faire capitalism. Until 1937 – natural rights
constitutionalism mean the protection of private property. It was not until Justice Stone’s famous
Carolene Products Footnote in ’38. that the constitutional era in which rights could be used as a
tool for the oppressed began to emerge.
-History shows that rights are a “double-edged sword” but for our constitutional history a
“single-edged sword.” While Holmes’ position on the freedom of speech was accepted by a
Supreme Court majority after WWII it was not used to protect minorities (ex. McCarthy targets)
until the ‘60s. The modern scrutiny era of free speech doctrine really began 20 yrs ago with
Brandenburg v. Ohio and the double-edged nature of rights emerged withint he modern doctrine.
The extension of the “money is speech” idea of Buckley v. Valeo to 1st National Bank of Boston
vs. Belloitt is an example of how rights preserve the privileges of the rich and powerful. In

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Bellotti, state regulation of corporate influence over election campaigns was held to be an
infringement of the 1st amendment rights of free speech. Rights have been used to protect instead
the interests of the powerful and this is found in the recent revival of the just compensation
clause – in which virtually any governmental regulation is capable of being regarded as a
“taking.” A progressive income tax should be unconstitutional and all redistributive social
programs are considered takings. This is completely different from the rights that we associate
with the protection of the politically weak and oppressed.
-Three other aspects of discourse of rights which foreshadow undesirable long-term
consequences
(1) natural rights conceptions were conceived in radical individualism and expresses an
individualistic perspective on social relations. Observe that the revolutionary spin of
natural rights philosophy of the Declaration of Independence was reshaped into a
conservative pro-property doctrine after the American Revolution in order to relegitimize
slavery. There is also a question of whether groups, in addition to individuals can have
rights. Legally we have been very resistant o recognizing group rights. Yet, as the
Supreme Court begins to uphold and legitimate affirmative action programs, it moves
closer to understanding rights and entitlements as group based and their infringement as
the result of systemic discrimination.
(2) Another troubling aspect of natural rights discourse is its tendency to posit a sharp
distinction between a public realm of coercion and a “natural” private realm of freedom.
But the public-private distinction is extremely malleable. The recent debate over
pornography emphasizes most clearly how difficult it is to believe in a realm of private
rights independent of the social consequences of their exercise. To what extent should we
immunize a realm of “private” rights if it produces clearly deleterious social
consequences?
(3) Another troubling aspect is that its focus on fundamental, inherent, inalienable or natural
rights is a way of obscuring or distorting the reality of the social construction of rights
and duties. It shifts discussion away from the always disputable issue of what is or is not
socially desirable. Rights discourse denies the assertion that a right is a social interest to
which we think it desirable to accord a privileged position in the law. It wishes us to
believe that the recognition of rights is not a question of social choice at all, as if in the
normative and constitutional realm, rights have the same force as the law of gravity.

-The most promising way to ensure that rights may be used on behalf of the socially weak and to
mitigate these three undesirable long-term risks of rights conceptions, is to ground rights theory
in a substantive conception of the good society. The most important substantive question in our
time is whether rights theories are conceived of as incorporating or as opposed to substantive
ideals of EQUALITY. Thus the meaning of Brown vs. Bd of Education has been central to
arguments about rights the past 35 yrs. In essence, all the arguments are abou how narrowly or
broadly to read Brown – narrowly as directed just to eliminating affirmative state-sanctioned
discrimination or broadly as a fundamental statement of the presumptive moral superiority of the
ideal of equality.
-The discourse of rights emerged within a tradition of liberalism that sharply distinguished
between social and political equality. One reading of Brown is that it recognized, more clearly
than ever before, the intimate connection between the two. Separate but equal facilities were
“inherently” inequal – the stigma was not the result of an interpretation that black people “chose”

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to put on segregation but derived from the reality of a societal system of oppression. Broadly
read, Brown reopened an issue that had been dominant at the time of the framing of the
Constitution – that of the social conditions necessary for maintaining political equality.

POWE P. 445-462
Ch. 17- Wealth and Poverty

The Criminal Cases- beginning to help the poor:

Context: WC helping the poor parallels Lyndon B. Johnson’s (LBJ) “War on Poverty”
* WCs help of the poor begins with the criminal cases, which usually sees more poor than rich
individuals
- Gideon v. Wainright/ Douglas v. California mandate that the states provide indigents
with lawyers
- WC justifies the cases in the name of “equality”, thus taking a step towards an effort to
constitutionalize the welfare state, “using coerced wealth transfers to make the lives of the least
fortunate better”

Cases that Concerned Poverty but Not at Face Value:

* Griswold v. Connecticut- overruled state law that virtually would have let the rich have more
access to contraceptives than the poor
* Board of Education v. Allen- ensured that aid would be targeted at disadvantaged students no
matter where they attended school
* Levy v. Louisiana- lessened laws that effectively punished illegitimate children or mothers
having children out of wedlock (illegitimates and their mothers were usually of lower
socioeconomic status)

Cases that Concerned Poverty on their Face:

* Harper v. Virginia Board of Elections- Harper seemed to portent that “constitutional rights
might be calibrated to the needs of the poor” (such as ensuring the constitutional right to vote by
eliminating any economic barriers)

* King v. Smith (1968)- WC makes a ruling that effectively outlaws the state welfare laws that
denied children welfare benefits if there was a “man in the house” living with the mother (the
purpose of these laws had been to discourage single mothers from having unmarried affairs).
WC makes this ruling on technical grounds though as opposed to constitutional.

* In cases Sniadach v. Family Finance Corp, McInnis v. Ogilvie, the WC supported the
constitutional claims of the poor, and rejected the use of the property tax as means of funding
local education. The most important case involving the constitutional claims of the poor was
- Shapiro v. Thompson: challenged welfare regulations that denied aid to the needy until
they had lived in the state of DC for one year
Douglas: justifies challenge through the 14th Amendment’s Priveleges and
Immunities Clause for his protection of the right to travel, which he felt were violated by the
residency requirement
Brennan: uses “compelling state interest” test as the only condition in which states
could make such residency requirements; history shows that this test effectively barred the state

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from any action. He justifies this by the “fundamental right to travel” and the idea that allowing
families subsistence living was a RIGHT, not a PRIVELEGE (Shapiro could be example of
transition of state services from privileges to rights)
- Shaprio could have created a revolution by overruling many laws discriminating
against the poor where the state did not have a “compelling interest”, but CONTEXT prevented
this from happening (riots, assassinations, Fortas’s resignation, costs of the Vietnam War, etc.)

* Constitutional Claims of Business

- WC takes on a trend of supporting labor over business, and small businesses over big business
and state sovereignty. WC has a trend of choosing first amendment rights over property rights.
- Amalgamated Food Employees Union v. Logan Valley Plaza (1968)- case demonstrates the
Court’s traditional favoring of labor over business- affirms the first amendment right of
unionists to picket in the private property of the supermarket.

* Labor and Antitrust Law

- WC always favored laborers over management

WEEK 14

Lecture 12/20
•Biographical emphasis of approach
Emergence of the Warren Court out of accidental appointments
No necessity in the direction which the Warren Court developed
•WWII
Non ideological view of liberalism
Big liberal sentiment – even the right is shifted to the left
•Context of larger political phenomenon of postwar liberalism
Legal manifestation of postwar liberalism
Shift from new deal liberalism to cultural liberalism
Decline of progressivism
•Race as the bridge between the first kind of liberalism and the second kind of liberalism
Race became the pivot for a whole series of changes
Original bread and butter of economic market liberalism
Transition to human respect being an important part in the way the law works
•Transitions of history
Circumstances didn’t have to produce Warren the way he came out - could have been
(and was expected to be) much more conservative
Idiosyncratic story about each of the Warren Court liberal justices
•Brennan, Douglas, Black – each enter the pantheon in a different way
Brennan was focused on getting 5 votes - finding the legal precedents to support the
decisions
Douglas was a loner
Black was the absolutist, highly dogmatic – but he was able to stand up to the majority of
American people and the congress in the McCarthy era
•How much does this depth of conviction help or hurt?

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 Frankfurter was effectively just about as dogmatic – but the historical context is
important
This creates the danger of a standard of winner’s history
•Importance of Warren’s role in the conference
Wouldn’t have guessed that Warren would have stepped up so much in conference,
because he wasn’t viewed as an intellectual
Brought the idea of political capital to the Court

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