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ELEMENTS OF THE LAW

READINGS
Autumn Quarter 2017
Geoffrey R. Stone

Part I. The Bramble Bush


The Bramble Bush.. 4
Katz v. United States. 5

Part II. The Path of the Law


Karl Llewellyn, The Bramble Bush. 12
Oliver Wendell Holmes, Jr., The Path of the Law... 15
Edward H. Levi, An Introduction to Legal Reasoning 19
Benjamin N. Cardozo, The Nature of the Judicial Process 22
Winterbottom v. Wright. 27
Longmeid v. Holliday.. 29
Thomas v. Winchester 30
Loop v. Litchfield. 34
Losee v. Clute... 36
Statler v. Ray Manufacturing...38
MacPherson v. Buick Motor Company... 40

Part III. The Interpretation of Statutes


Edward H. Levi, An Introduction to Legal Reasoning.47
Twenty Illustrative Canons of Statutory Construction.. 49
Riggs v. Palmer 51
Church of The Holy Trinity v. United States 55
Caminetti v. United States 60
United Steelworkers v. Weber.. 68
Antonin Scalia, A Matter of Interpretation85
Rapanos v. United States...90

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Part IV. The Problem of Proof
Bad Character
People v. Zackowitz 107
Hearsay
Crawford v. Washington 112
FRE 801(c) 113
Moore v. United States 113
Silver v. New York Central Railroad 115
Wright v. Doe D. Tatham 118
FRE 801(a) 119
United States v. Long 120

Part V. Clear and Present Danger


The Sedition Act of 1798.. .PT 15-29, 33-73
Mr. Lincolns First Amendment PT 79-82, 94-120
The Espionage Act of 1917 .PT 135-153
Shaffer v. United States123
Masses v. United States125
Schenck v. United States. 129
Frohwerk v. United States.. 131
Debs v. United States... 132
The Sedition Act of 1918.. PT 182-191
Abrams v. United States.. 134, PT 198-203, 232-233
Gitlow v. New York.. 137
Whitney v. California142
The American Hitler. PT 252-266
The Red Menace. PT 311-322
Dennis v. United States... PT 395-401; 147
Yates v. United States.. 153; PT 423-426
Brandenburg v. Ohio.155; PT 523-526

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Part I

The Bramble Bush


There was a man in our town
and he was wondrous wise:
he jumped into a BRAMBLE BUSH
and scratched out both his eyes
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.

Karl Llewellyn took the title of The Bramble Bush, a book of lectures he
delivered in 1930 to entering law students at Columbia, from this Mother Goose
nursery rhyme. As noted in the Introduction to the 2008 edition, Llewellyn chose
the rhyme to make several points at once about the study of law. First, studying law
requires deep commitment and real labor. And, although studying the law is hardly
painless, the best treatment for the pain is more study. As he puts it in the
beginning of the eighth lecture, for too much law, more law will be the cure. If law
makes you blind, more law will make you see. Llewellyn saw the first year of law
school as the bramble bush. . . .
Llewellyn taught Elements of the Law at the University of Chicago Law School
from 1951 until his death in 1962.

Consider also the following reflections of Edward Levi, who also taught
Elements of the Law at the University of Chicago Law School for many years:
Law is its own discipline, not to be captured by any other. It must keep fresh
its relationships to other fields of knowledge and to the enlighted as well as the
common thought of its time. But there is an integrity and cohensiveness of its own
which must be maintained. Law has its own history which is part of its working
process, the values it protects, the procedures which have been developed for
change. It is a discipline to be studied. But it is much more. The problem for the
lawyer, and for the legal scholar, is not just to know the law, but how to create
within it. It is a world of artistry and craftsmanship and change. . . .
Edward H. Levi, Address to the Entering Class of the University of Chicago
Law School (1976)

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It is an enormous responsibility a lawyer bears to face the most complex and
demanding problems that our society faces, to treat them dispassionately but not
without feeling, to work with words which demand constant interpretation. Yet is
also the lawyers pleasure to do so. . . . For the purpose of the law is to try to create
the conditions for the just society, for the continual reexamination of our values and
they way they are reflected in our society.
Edward H. Levi, Law Day Dinner (1975)

An attorney can neither properly be solely an advocate of his clients cause to


the exclusion of all other concerns nor completely his own man using his clients to
serve his own ends. It is a complicated duty lawyers have; it looks both to the
individual clients interest and also to the interests of society, which are the laws.
This requires a special honesty and objectivity. Cicero said that if you couldnt state
your opponents case, you didnt know your own. Beyond that, as every lawyer
knows, arguments can be stated in such a way as to mislead or inflame. This is not
the road to problem-solving, which is at the center of the bars responsibility.
Edward H. Levi, Dedication of the Texas Law Center (1976)

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KATZ V. UNITED STATES
389 U.S. 347 (1967)
389 U.S. 347
Decided December 18, 1967

MR. JUSTICE STEWART delivered the opinion of the Court.


The petitioner was convicted in the District Court for the Southern District of
California under an eight-count indictment charging him with transmitting
wagering information by telephone from Los Angeles to Miami and Boston, in
violation of a federal statute. At trial the Government was permitted, over the
petitioner's objection, to introduce evidence of the petitioner's end of telephone
conversations, overheard by FBI agents who had attached an electronic listening
and recording device to the outside of the public telephone booth from which he had
placed his calls. In affirming his conviction, the Court of Appeals rejected the
contention that the recordings had been obtained in violation of the Fourth
Amendment, because [t]here was no physical entrance into the area occupied by
[the petitioner]. We granted certiorari in order to consider the constitutional
questions thus presented.
The petitioner has phrased those questions as follows:
A. Whether a public telephone booth is a constitutionally protected
area so that evidence obtained by attaching an electronic listening
recording device to the top of such a booth is obtained in violation of
the right to privacy of the user of the booth.
B. Whether physical penetration of a constitutionally protected
area is necessary before a search and seizure can be said to be violative
of the Fourth Amendment to the United States Constitution.
We decline to adopt this formulation of the issues. In the first place, the correct
solution of Fourth Amendment problems is not necessarily promoted by incantation
of the phrase constitutionally protected area. Secondly, the Fourth Amendment
cannot be translated into a general constitutional right to privacy. That
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do with privacy
at all. Other provisions of the Constitution protect personal privacy from other
forms of governmental invasion. But the protection of a persons general right to
privacy -- his right to be let alone by other people -- is, like the protection of his
property and of his very life, left largely to the law of the individual States.
Because of the misleading way the issues have been formulated, the parties
have attached great significance to the characterization of the telephone booth from
which the petitioner placed his calls. The petitioner has strenuously argued that the
booth was a constitutionally protected area. The Government has maintained with

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equal vigor that it was not. But this effort to decide whether or not a given area,
viewed in the abstract, is constitutionally protected deflects attention from the
problem presented by this case. For the Fourth Amendment protects people, not
places. What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection. See Lewis v. United States,
385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to
preserve as private, even in an area accessible to the public, may be constitutionally
protected. See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727,
733.
The Government stresses the fact that the telephone booth from which the
petitioner made his calls was constructed partly of glass, so that he was as visible
after he entered it as he would have been if he had remained outside. But what he
sought to exclude when he entered the booth was not the intruding eye -- it was the
uninvited ear. He did not shed his right to do so simply because he made his calls
from a place where he might be seen. No less than an individual in a business office,
in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon
the protection of the Fourth Amendment. One who occupies it, shuts the door
behind him, and pays the toll that permits him to place a call is surely entitled to
assume that the words he utters into the mouthpiece will not be broadcast to the
world. To read the Constitution more narrowly is to ignore the vital role that the
public telephone has come to play in private communication.
The Government contends, however, that the activities of its agents in this case
should not be tested by Fourth Amendment requirements, for the surveillance
technique they employed involved no physical penetration of the telephone booth
from which the petitioner placed his calls. It is true that the absence of such
penetration was at one time thought to foreclose further Fourth Amendment
inquiry, Olmstead v. United States, 277 U.S. 438 (1928); Goldman v. United States,
316 U.S. 129 (1942), for that Amendment was thought to limit only searches and
seizures of tangible property. But . . . once it is recognized that the Fourth
Amendment protects people -- and not simply areas -- against unreasonable
searches and seizures, it becomes clear that the reach of that Amendment cannot
turn upon the presence or absence of a physical intrusion into any given enclosure.
We conclude that the . . . the Government's activities in electronically listening
to and recording the petitioner's words violated the privacy upon which he
justifiably relied while using the telephone booth and thus constituted a search and
seizure within the meaning of the Fourth Amendment. The fact that the electronic
device employed to achieve that end did not happen to penetrate the wall of the
booth can have no constitutional significance. * * *
Because the surveillance here . . . led to the petitioner's conviction, the
judgment must be reversed.
It is so ordered.

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MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court, which I read to hold only (a) that an enclosed
telephone booth is an area where, like a home, Weeks v. United States, 232 U.S.
383, and unlike a field, Hester v. United States, 265 U.S. 57, a person has a
constitutionally protected reasonable expectation of privacy; (b) that electronic as
well as physical intrusion into a place that is in this sense private may constitute a
violation of the Fourth Amendment; and (c) that the invasion of a constitutionally
protected area by federal authorities is, as the Court has long held, presumptively
unreasonable in the absence of a search warrant.
As the Court's opinion states, the Fourth Amendment protects people, not
places. The question, however, is what protection it affords to those people.
Generally, as here, the answer to that question requires reference to a place. My
understanding of the rule that has emerged from prior decisions is that there is a
twofold requirement, first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as reasonable. Thus a man's home is, for most purposes, a
place where he expects privacy, but objects, activities, or statements that he exposes
to the plain view of outsiders are not protected because no intention to keep
them to himself has been exhibited. On the other hand, conversations in the open
would not be protected against being overheard, for the expectation of privacy under
the circumstances would be unreasonable.
The critical fact in this case is that [o]ne who occupies [a telephone booth],
shuts the door behind him, and pays the toll that permits him to place a call is
surely entitled to assume that his conversation is not being intercepted. The point
is not that the booth is accessible to the public at other times, but that it is a
temporarily private place whose momentary occupants' expectations of freedom
from intrusion are recognized as reasonable.
In Silverman v. United States, 365 U.S. 505 (1961), we held that eavesdropping
accomplished by means of an electronic device that penetrated the premises
occupied by petitioner was a violation of the Fourth Amendment. That case
established that interception of conversations reasonably intended to be private
could constitute a search and seizure, and that the examination or taking of
physical property was not required. In Silverman we found it unnecessary to re-
examine Olmstead v. United States, 277 U.S. 438 (1928) and Goldman v. United
States, 316 U.S. 129 (1942), which had held that electronic surveillance
accomplished without the physical penetration of petitioner's premises by a tangible
object did not violate the Fourth Amendment. This case requires us to reconsider
Olmstead and Goldman, and I agree that they should now be overruled. Their
limitation on Fourth Amendment protection is, in the present day, bad physics as
well as bad law, for reasonable expectations of privacy may be defeated by electronic
as well as physical invasion. . . .

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MR. JUSTICE WHITE, concurring.
I agree that the official surveillance of petitioner's telephone conversations in a
public booth must be subjected to the test of reasonableness under the Fourth
Amendment and that on the record now before us the particular surveillance
undertaken was unreasonable absent a warrant properly authorizing it.*

MR. JUSTICE BLACK, dissenting.

If I could agree with the Court that eavesdropping carried on by electronic


means (equivalent to wiretapping) constitutes a search or seizure, I would be
happy to join the Court's opinion. * * * [But] I am unable to agree with [the Courts]
interpretation of the Fourth Amendment.
My basic objection is twofold: (1) I do not believe that the words of the
Amendment will bear the meaning given them by todays decision, and (2) 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.
While I realize that an argument based on the meaning of words lacks the
scope, and no doubt the appeal, of broad policy discussions and philosophical
discourses on such nebulous subjects as privacy, for me the language of the
Amendment is the crucial place to look in construing a written document such as
our Constitution. The Fourth Amendment says that
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated. . . .
The first clause protects persons, houses, papers, and effects, against
unreasonable searches and seizures . . . . These words connote the idea of tangible
things with size, form, and weight, things capable of being searched, seized, or both.
. . . A conversation overheard by eavesdropping, whether by plain snooping or

* In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable
under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police
agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v.
United States, 385 U.S. 293 (1966); (2) by a recording device hidden on the person of such an
informant, Lopez v. United States, 373 U.S. 427 (1963); Osborn v. United States, 385 U.S. 323
(1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent
conversing with the defendant in another location, On Lee v. United States, 343 U.S. 747 (1952).
When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the
risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment
does not protect against unreliable (or law-abiding) associates. It is but a logical and reasonable
extension of this principle that a man take the risk that his hearer, free to memorize what he hears
for later verbatim repetitions, is instead recording it or transmitting it to another. The present case
deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to
exclude . . . the uninvited ear," and spoke under circumstances in which a reasonable person would
assume that uninvited ears were not listening.

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wiretapping, is not tangible and, under the normally accepted meanings of the
words, can neither be searched nor seized. . . . Rather than using language in a
completely artificial way, I must conclude that the Fourth Amendment simply does
not apply to eavesdropping.
Tapping telephone wires, of course, was an unknown possibility at the time the
Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing
more than eavesdropping by telephone) was an ancient practice which at common
law was condemned as a nuisance. 4 Blackstone, Commentaries 168. In those days
the eavesdropper listened by naked ear under the eaves of houses or their windows,
or beyond their walls seeking out private discourse. There can be no doubt that the
Framers were aware of this practice, and if they had desired to outlaw or restrict
the use of evidence obtained by eavesdropping, I believe that they would have used
the appropriate language to do so in the Fourth Amendment. They certainly would
not have left such a task to the ingenuity of language-stretching judges. No one, it
seems to me, can read the debates on the Bill of Rights without reaching the
conclusion that its Framers and critics well knew the meaning of the words they
used, what they would be understood to mean by others, their scope and their
limitations. Under these circumstances it strikes me as a charge against their
scholarship, their common sense and their candor to give to the Fourth
Amendment's language the eavesdropping meaning the Court imputes to it today.
I do not deny that common sense requires and that this Court often has said
that the Bill of Rights' safeguards should be given a liberal construction. This
principle, however, does not justify construing the search and seizure amendment
as applying to eavesdropping or the seizure of conversations. The Fourth
Amendment was aimed directly at the abhorred practice of breaking in, ransacking
and searching homes and other buildings and seizing people's personal belongings
without warrants issued by magistrates. The Amendment deserves, and this Court
has given it, a liberal construction in order to protect against warrantless searches
of buildings and seizures of tangible personal effects. But until today this Court has
refused to say that eavesdropping comes within the ambit of Fourth Amendment
restrictions. See, e. g., Olmstead v. United States, 277 U.S. 438 (1928), and
Goldman v. United States, 316 U.S. 129 (1942).
So far I have attempted to state why I think the words of the Fourth
Amendment prevent its application to eavesdropping. It is important now to show
that this has been the traditional view of the Amendment's scope since its adoption
and that the Court's decision in this case . . . marks the first real departure from
that view.
The first case to reach this Court which actually involved a clear-cut test of the
Fourth Amendment's applicability to eavesdropping through a wiretap was, of
course, Olmstead. In holding that the interception of private telephone
conversations by means of wiretapping was not a violation of the Fourth
Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the
language of the Amendment and found, just as I do now, that the words could not be

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stretched to encompass overheard conversations: The Amendment itself shows that
the search is to be of material things - the person, the house, his papers or his
effects. . . .
Goldman is an even clearer example of this Court's traditional refusal to
consider eavesdropping as being covered by the Fourth Amendment. There federal
agents used a detectaphone, which was placed on the wall of an adjoining room, to
listen to the conversation of a defendant carried on in his private office and
intended to be confined within the four walls of the room. This Court, referring to
Olmstead, found no Fourth Amendment violation. * * *
Since I see no way in which the words of the Fourth Amendment can be
construed to apply to eavesdropping, that closes the matter for me. In interpreting
the Bill of Rights, I willingly go as far as a liberal construction of the language takes
me, but I simply cannot in good conscience give a meaning to words which they have
never before been thought to have and which they certainly do not have in common
ordinary usage. I will not distort the words of the Amendment in order to keep the
Constitution up to date or to bring it into harmony with the times. It was never
meant that this Court have such power, which in effect would make us a
continuously functioning constitutional convention. * * *
For these reasons I respectfully dissent.

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Part II

The Path of the Law

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The Bramble Bush
Karl N. Llewellyn
1930

What, then, is this law business about? It is about the fact that our society is
honeycombed with disputes. Disputes actual and potential; disputes to be settled
and disputes to be prevented; both appealing to law, both making up the business of
the law. But obviously those which most violently call for attention are the actual
disputes, and to these our first attention must be directed. Actual disputes call for
somebody to do something about them. First, so that there may be peace, for the
disputants; for other persons whose ears and toes disputants are disturbing. And
secondly, so that the dispute may really be put to rest, which means, so that a
solution may be achieved which, at least in the main, is bearable to the parties and
not disgusting to the lookers-on. This doing something about disputes, this doing of
it reasonably, is the business of law. . . .
[But] it is not enough to say [that courts and lawyers] deal with disputes,
because there are so many disputes they do not deal with. That little difference of
opinion with your father as to whether you should go to Chicago or Harvard or as to
how much your monthly check should be was not, I take it, settled by a court or a
lawyer. The higgling of the market presents a constant series of disputes that reach
their adjustment by negotiation and by bargaining. . . . Strikes are called and fought
through and settled. Often some phases of them reach the courts. Often none do.
Almost never does the main question in a strike occupy a court. But perhaps the
case of the strike is as good as any to bring out the part that law does play. Law
[lays] down rules within which strikes and lockouts and struggles of employer and
employee are to be worked out. Rules of the game: no beating, no shooting, no
intimidation, no blacklisting. . . . The law then [is] a means of dealing with disputes
which do not otherwise get settled. Less as making order than as maintaining order
when it has gotten out of order. That is laws first aspect, its most ancient aspect, its
fundamental aspect. . . . [W]hereas people are only incidentally concerned about the
law, the lawyer is professionally concerned. [The lawyer] is the point of contact
between people and the law. . . .
* * * * *
All of our cases are decided, all of our opinions are written, all of our
predictions, all of our arguments are made, on four certain assumptions: . . .
(1) The court must decide the dispute that is before it. It cannot refuse because
the job is hard, or dubious, or dangerous.
(2) The court can decide only the particular dispute which is before it. When it
speaks to that question it speaks . . . with authority. . . . When it speaks to the
question before it, it announces law. . . . But when it speaks to any other question at

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all, it says merely words, which no man needs to follow. Are such words worthless?
They are not. We know them as judicial dicta. . . . Yet even dicta may shed light
[and] may be very useful in the future. But later judges will not feel bound by dicta.
...
(3) The court can decide the particular dispute only according to a general rule
which covers a whole class of like disputes. Our legal theory does not admit of single
decisions standing on their own. . . . But how wide, or how narrow, is the general
rule on which the case is decided? That is a troublesome matter. The practice of our
case law, however, is I think fairly stated thus: it pays to be suspicious of general
rules which look too wide; it pays to go slow in feeling certain that a wide rule has
been laid down at all, or that, if seemingly laid down, it will be followed. . . .
(4) Everything, everything, everything, big or small, a judge may say in an
opinion is to be read with primary reference to the particular dispute, the particular
question before the court. You are not to think that the words mean what they
might if they stood alone. You are to keep your eye of the case in hand, and to learn
how to interpret all that has been said merely as a reason for deciding that case
that way.
* * * * *
Perhaps in . . . judging how far to trust a broadly stated rule, we may find
guidance in the facts the court assumes. Surely this much is certain: the actual
dispute before the court is limited . . . by the facts. What is not in the facts cannot be
present for decision. . . . But how far does that help us out? Where are the facts? The
plaintiffs name is Atkinson and the defendants Walpole. The defendant, despite his
name, is an Italian by extraction, but the plaintiffs ancestors came over with the
Pilgrims. The defendant has a schnauzer dog named Walter, red hair, and $30,000
worth of life insurance. All these are facts. The case, however, does not deal with life
insurance. It is about an auto accident. The defendants auto was a Buick painted
pale magenta. He is married. His wife was in the back seat, an irritable, somewhat
faded blonde. She was attempting back-set driving when the accident occurred. He
had turned around to make objection. In the process the car swerved and hit the
plaintiff. The sun was shining; there was a rather lovely dappled sky low to the
West. The time was late October on a Tuesday. The road was smooth, concrete. It
had been put in by the McCarthy Road Work Company four years before. How
many of these facts are important to the decision? How many of these facts are, as
we say, legally relevant? Is it relevant that the road was in the country or the city;
that it was concrete or tarmac or of dirt; that it was four years old? Is it relevant
that the defendant was driving a Buick, or a motor car, or a vehicle? Is it important
that he looked around as the car swerved? Is it crucial? Would it have been the
same if he had been drunk, or had swerved for fun, to see how close he could run by
the plaintiff, but had missed his guess?

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Is it not obvious that as soon as you pick up this statement of the facts to find
your legal bearings you must discard some as of no interest whatsoever, discard
others as dramatic but as legal nothings?

* * * * *

[QUERY: If you were a lawyer, and Mr. Walpole made an appointment to see you,
and he told you these facts, what questions would you ask him? Why? What
information would you want your private investigator to find out for you? GRS.]

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The Path of the Law
Oliver Wendell Holmes, Jr.
10 Harv. L. Rev. 457 (1897)

When we study law we are not studying a mystery but a well-known profession.
We are studying what we shall want in order to appear before judges, or to advise
people in such a way as to keep them out of court. The reason why it is a profession,
why people will pay lawyers to argue for them or to advise them, is that in societies
like ours the command of the public force is entrusted to the judges in certain cases,
and the whole power of the state will be put forth, if necessary, to carry out their
judgments and decrees. People want to know under what circumstances and how
far they will run the risk of coming against what is so much stronger than
themselves, and hence it becomes a business to find out when this danger is to be
feared. The object of our study, then, is prediction, the prediction of the incidence of
the public force through the instrumentality of the courts.
The means of the study are a body of reports, of treatises, and of statutes,
[extending] back for six hundred years, and now increasing annually by hundreds.
In these sibylline leaves are gathered the scattered prophecies of the past upon the
cases in which the axe will fall. These are what properly have been called the
oracles of the law. Far the most important and pretty nearly the whole meaning of
every new effort of legal thought is to make these prophecies more precise, and to
generalize them into a thoroughly connected system. The process is one, from a
lawyer's statement of a case, eliminating as it does all the dramatic elements with
which his client's story has clothed it, and retaining only the facts of legal import,
up to the final analyses and abstract universals of theoretic jurisprudence. The
reason why a lawyer does not mention that his client wore a white hat when he
made a contract, while Mrs. Quickly would be sure to dwell upon it along with the
parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will
act in the same way whatever his client had upon his head. It is to make the
prophecies easier to be remembered and to be understood that the teachings of the
decisions of the past are put into general propositions and gathered into textbooks,
or that statutes are passed in a general form. The primary rights and duties with
which jurisprudence busies itself again are nothing but prophecies. One of the many
evil effects of the confusion between legal and moral ideas [is] that theory is apt to
get the cart before the horse, and consider the right or the duty as something
existing apart from and independent of the consequences of its breach, to which
certain sanctions are added afterward. But, as I shall try to show, a legal duty so
called is nothing but a prediction that if a man does or omits certain things he will
be made to suffer in this or that way by judgment of the court; and so of a legal
right.

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The number of our predictions when generalized and reduced to a system is not
unmanageably large. They present themselves as a finite body of dogma which may
be mastered within a reasonable time. It is a great mistake to be frightened by the
ever-increasing number of reports. The reports of a given jurisdiction in the course
of a generation take up pretty much the whole body of the law, and restate it from
the present point of view. We could reconstruct the corpus from them if all that
went before were burned. The use of the earlier reports is mainly historical. . . .
* * * * *
[W]hat are the forces which determine [the laws] content and growth? You may
assume, with Hobbes and Bentham and Austin, that all law emanates from the
sovereign, even when the first human beings to enunciate it are the judges, or you
may think that law is the voice of the Zeitgeist, or what you like. It is all one to my
present purpose. Even if every decision required the sanction of an emperor with
despotic power and a whimsical turn of mind, we should be interested none the less,
still with a view to prediction, in discovering some order, some rational explanation,
and some principle of growth for the rules which he laid down. In every system
there are such explanations and principles to be found. It is with regard to them
that [an important] fallacy comes in, which I think it important to expose.
The fallacy to which I refer is the notion that the only force at work in the
development of the law is logic. [The] danger [is] the notion that a given system [of
law] can be worked out like mathematics from some general axioms of conduct. . . . I
once heard a very eminent judge say that he never let a decision go until he was
absolutely sure that it was right. So judicial dissent often is blamed, as if it meant
simply that one side or the other were not doing their sums right, and if they would
take more trouble, agreement inevitably would come.
This mode of thinking is entirely natural. The training of lawyers is a training
in logic. The processes of analogy, discrimination, and deduction are those in which
they are most at home. The language of judicial decision is mainly the language of
logic. And the logical method and form flatter that longing for certainty and for
repose which is in every human mind. But certainty generally is illusion, and repose
is not the destiny of man. Behind the logical form lies a judgment as to the relative
worth and importance of competing [positions], often an inarticulate and
unconscious judgment, it is true, and yet the very root and nerve of the whole
proceeding. You can give any conclusion a logical form. You always can imply a
condition in a contract. But why do you imply it? It is because of some belief as to
the practice of the community or of a class, or because of some opinion as to policy,
or, in short, because of some attitude of yours upon a matter not capable of exact
quantitative measurement, and therefore not capable of founding exact logical
conclusions. Such matters really are battle grounds where the means do not exist
for the determinations that shall be good for all time, and where the decision can do
no more than embody the preference of a given body in a given time and place. We
do not realize how large a part of our law is open to reconsideration upon a slight

16
change in the habit of the public mind. No concrete proposition is self evident, no
matter how ready we may be to accept it. . . .
Why is a false and injurious statement privileged, if it is made honestly in
giving information about a servant? It is because it has been thought more
important that information should be given freely, than that a man should be
protected from what under other circumstances would be an actionable wrong. Why
is a man at liberty to set up a business which he knows will ruin his neighborhood?
It is because the public good is supposed to be best served by free competition.
Obviously such judgments of relative importance may vary in different times and
places. [If] anyone thinks that [such questions] can be settled deductively, or once
for all, I only can say that I think he is theoretically wrong. . . .
* * * * *
At present, in very many cases, if we want to know why a rule of law has taken
its particular shape, and more or less if we want to know why it exists at all, we go
to tradition. We follow it into the Year Books, and perhaps beyond them to the
customs of the Salian Franks, and somewhere in the past, in the German forests, in
the needs of Norman kings, in the assumptions of a dominant class, in the absence
of generalized ideas, we find out the practical motive for what now best is justified
by the mere fact of its acceptance and that men are accustomed to it. The rational
study of law is still to a large extent the study of history. History must be a part of
the study, because without it we cannot know the precise scope of rules which it is
our business to know. It is a part of the rational study, because it is the first step
toward an enlightened skepticism, that is, towards a deliberate reconsideration of
the worth of those rules. . . . But it is revolting to have no better reason for a rule of
law than that so it was laid down in the time of Henry IV. It is still more revolting if
the grounds upon which it was laid down have vanished long since, and the rule
simply persists from blind imitation of the past. . . .
[F]undamental questions still await a better answer than that we do as our
fathers have done. What have we better than a blind guess to show that the
criminal law in its present form does more good than harm? I do not stop to refer to
the effect which it has had in degrading prisoners and in plunging them further into
crime, or to the question whether fine and imprisonment do not fall more heavily on
a criminal's wife and children than on himself. I have in mind more far-reaching
questions. Does punishment deter? Do we deal with criminals on proper principles?
. . . Perhaps I have said enough to show the part which the study of history
necessarily plays in the intelligent study of the law as it is today. . . . [But we] must
beware of the pitfall of antiquarianism, and must remember that for our purposes
our only interest in the past is for the light it throws upon the present. I look
forward to a time when the part played by history in the explanation of dogma shall
be very small, and instead of ingenious research we shall spend our energy on a
study of the ends sought to be attained and the reasons for desiring them. As a step
toward that ideal it seems to me that every lawyer ought to seek an understanding

17
of economics. The present divorce between the schools of political economy and law
seems to me an evidence of how much progress [still] remains to be made. In the
present state of political economy, indeed, we come again upon history on a larger
scale, but there we are called on to consider and weigh the ends of [the law], the
means of attaining them, and the cost. We learn that for everything we have we
give up something else, and we are taught to set the advantage we gain against the
other advantage we lose, and to know what we are doing when we elect.
There is another study which sometimes is undervalued by the practical
minded, for which I wish to say a good word, although I think a good deal of pretty
poor stuff goes under that name. I mean the study of what is called jurisprudence.
Jurisprudence, as I look at it, is simply law in its most generalized part. Every
effort to reduce a case to a rule is an effort of jurisprudence, although the name as
used in English is confined to the broadest rules and most fundamental conceptions.
One mark of a great lawyer is that he sees the application of the broadest rules.
There is a story of a Vermont justice of the peace before whom a suit was brought by
one farmer against another for breaking a churn. The justice took time to consider,
and then said that he has looked through the statutes and could find nothing about
churns, and gave judgment for the defendant. . . . If a man goes into law it pays to
be a master of it, and to be a master of it means to . . . discern the true basis for
prophecy. . . . The way to gain a liberal view of your subject is . . . to get to the
bottom of the subject itself. The means of doing that are, in the first place, to follow
the existing body of dogma into its highest generalizations by the help of
jurisprudence; next, to discover from history how it has come to be what it is; and
finally, so far as you can, to consider the ends which the several rules seek to
accomplish, the reasons why those ends are desired, what is given up to gain them,
and whether they are worth the price. . . .

18
An Introduction to Legal Reasoning
Edward H. Levi
1949

The basic pattern of legal reasoning is reasoning by example. It is reasoning


from case to case. It is a three-step process described by the doctrine of precedent in
which a proposition descriptive of the first case is made into a rule of law and then
applied to a next similar situation. The steps are these: similarity is seen between
cases; next the rule of law inherent in the first case is announced; then the rule of
law is made applicable to the second case. This is a method of reasoning necessary
for the law, but it has characteristics which under other circumstances might be
considered imperfections.
These characteristics become evident if the legal process is approached as
though it were a method of applying general rules of law to diverse facts in short,
as though the doctrine of precedent meant that general rules, once properly
determined, remained unchanged, and then were applied [in] later cases. If this
were the doctrine, it would be disturbing to find that the rules change from case to
case and are remade with each case. Yet this change in the rules is the
indispensable dynamic quality of law. It occurs because the scope of a rule of law,
and therefore its meaning, depends upon a determination of what facts will be
considered similar to those present when the rule was first announced. The finding
of similarity or difference is the key step in the legal process.
The determination of similarity or difference is the function of [the] judge.
Where case law is considered, . . . he is not bound by the statement of the rule of law
made by the prior judge even in the controlling case. That statement is mere
dictum, and this means that the judge in the [later] case may find irrelevant the
existence or absence of facts which prior judges thought important. It is not what
the prior judge intended that is of any importance; rather it is what the present
judge, attempting to see the law as a fairly consistent whole, thinks should be the
determining classification. It arriving at his result he will ignore what the pas
thought important; he will emphasize facts which the prior judges would have
thought made no difference. It is not just that he could not see the law through the
eyes of another, for he could at least try to do so. It is rather that the doctrine of
dictum forces him to make his own decision.
Thus it cannot be said that the legal process is the application of known rules to
diverse facts. Yet it is a system of rules; the rules are discovered in the process of
determining similarity or difference. But if attention is directed toward the finding
of similarity or difference, other peculiarities appear. The problem for the law is:
When will it be just to treat different cases as though they were the same? A
working legal system must therefore be willing to pick out key similarities and to
reason from them to the justice of applying a common classification. The existence
of some facts in common brings into play the general rule. [But] the kind of

19
reasoning involved in the legal process is one in which the classification changes as
the classification is made. The rules change as the rules are applied. . . .

* * * * *
[AN EXAMPLE: Suppose that P sues D for breach of contract, alleging that (a) D
offered to sell her 10 widgets for $100, (b) P accepted the offer in writing, and (c) D
then reneged on the deal. P seeks damages of $20, representing the profit she would
have made had she been able to resell the widgets. The court finds for P, stating the
rule that when a person offers to sell goods to another, and the offeree accepts the
offer, and the offeror fails to honor the offer, the offeror is liable to the offeree for
reasonable damages suffered by the offeree because of the breach of contract.
Now consider four subsequent cases: (1) P sues D for breach of a contract to sell
flowers. (2) P sues D for breach of an oral contract to sell widgets. (3) P sues D, who
is thirteen years old, for breach of a contract to sell widgets. (4) P sues D for breach
of a contract to sell heroin. GRS]

* * * * *
What does the law forum require? It requires the presentation of competing
examples. The forum protects the parties and the community by making sure that
the competing analogies are presented to the court. The rule which will be created
arises out of a process in which if different things are to be treated as similar, at
least the differences have been urged. In this sense the parties as well as the court
participate in the law-making. In this sense, also, lawyers represent more than
their clients. . . .
Reasoning by example shows the decisive role which the common ideas of the
society and the distinctions made by experts can have in shaping the law. The
movement of common or experts concepts into the law may be followed. The concept
is suggested in arguing difference or similarity in a brief, but it wins no approval
from the court. The idea achieves standing in the society. It is suggested again to a
court. The court this time reinterprets the prior case and in doing so adopts the
rejected idea. In subsequent cases, the idea is given further definition and is tied to
other ideas which have been accepted by courts. It is now no longer the idea which
was commonly held in society. It becomes modified in subsequent cases. Ideas first
rejected but which gradually have won acceptance now push what has become a
legal category out of the system or convert it into something which may be its
opposite. . . . Erroneous ideas, of course, have played an enormous part in shaping
the law. . . . But reasoning by example will operate to change the idea after it has
been adopted. . . .
. . . In the long run a circular motion can be seen. The first stage is the creation
of a legal concept which is built up as cases are compared. The period is one in
which the court fumbles for a phrase. Several phrases may be tried out. . . . The
second state is the period when the concept is more or less fixed, although reasoning
by example continues to classify items inside and out of the concept. The third stage

20
is the breakdown of the concept, as reasoning by example has moved so far ahead as
to make it clear that the suggestive influence of the word is no longer desired
The process is likely to make judges and lawyers uncomfortable. It runs
contrary to the pretense of the system. It seems inevitable, therefore, that as
matters of kind vanish into matters of degree and then entirely new meanings turn
up, there will be the attempt to escape to some overall rule which can be said to
have always operated and which will make the reasoning look deductive. The rule
will be useless. It will have to operate on a level where it has no meaning. Even
when lip service is paid to it, care will be taken to say that it may be too wide or too
narrow but that nevertheless it is a good rule. [But it] is now mere window dressing.

21
The Nature of the Judicial Process
Benjamin N. Cardozo
1921

The work of deciding cases goes on every day in hundreds of courts throughout
the land. Any judge, one might suppose, would find it easy to describe the process
which he had followed a thousand times and more. Nothing could be farther from
the truth. . . What is it that I do when I decide a case? To what sources of
information do I appeal for guidance? In what proportions do I permit them to
contribute to the result? In what proportions ought they to contribute? If a
precedent is applicable, when do I refuse to follow it? If no precedent is applicable,
how do I reach the rule that will make a precedent for the future? If I am seeking
logical consistency, the symmetry of the legal structure, how far shall I seek it? At
what point shall the quest be halted by some discrepant custom, by some
consideration of the social welfare, by my own or the common standards of justice
and morals? Into that strange compound which is brewed daily in the caldron of the
courts, all these ingredients enter in varying proportions. I am not concerned to
inquire whether judges ought to be allowed to brew such a compound at all. I take
judge-made law as one of the existing realities of life. . . . There, before us, is the
brew. . . . The elements have not come together by chance. Some principle however
unavowed and inarticulate and subconscious, has regulated the infusion. It may not
have been the same principle for all judges at any time, nor the same principle for
any judge at all times. But a choice there has been, not a submission to the decree of
Fate; and the considerations and motives determining the choice, even if often
obscure, do not utterly resist analysis. In such attempt at analysis as I shall make,
there will be need to distinguish between the conscious and the subconscious. . . . It
is often through these subconscious forces that judges are kept consistent with
themselves, and inconsistent with one another. . . . There is in each of us a stream
of tendency, whether you choose to call it philosophy or not, which gives coherence
and direction to thought and action. Judges cannot escape that current any more
than other mortals. All their lives, forces which they do not recognize and cannot
name, have been tugging at them--inherited instincts, traditional beliefs, acquired
convictions; and the resultant is an outlook on life, a conception of social needs, . . .
which, when reasons are nicely balanced, must determine where choice shall fall.
* * * * *
Before we can determine the proportions of a blend, we must know the
ingredients to be blended. Our first inquiry should therefore be: Where does the
judge find the law which he embodies in his judgment? There are times when the
source is obvious. The rule that fits the case may be supplied by the constitution or
by statute. If that is so, the judge looks no farther. The correspondence ascertained,
his duty is to obey. The constitution overrides a statute, but a statute, if consistent
with the constitution, overrides the law of judges. In this sense, judge-made law is
secondary and subordinate to the law that is made by legislators. It is true that

22
codes and statutes do not render the judge superfluous, nor his work perfunctory
and mechanical. There are gaps to be filled. There are doubts and ambiguities to be
cleared. There are hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the search and the
discovery of a meaning which, however obscure and latent, had none the less a real
and ascertainable pre-existence in the legislator's mind. The process is, indeed, that
at times, but it is often something more. The ascertainment of intention may be the
least of a judge's troubles in ascribing meaning to a statute. "The fact is," says Gray
in his lectures on the Nature and Sources of the Law, that the difficulties of so-
called interpretation arise when the legislature has had no meaning at all; when the
question which is raised on the statute never occurred to it; when what the judges
have to do is, not to determine what the legislature did mean on a point which was
present to its mind, but to guess what it would have intended on a point not present
to its mind, if the point had been present.. . .
I will dwell no further for the moment upon the significance of constitution and
statute as sources of the law. . . . We reach the land of mystery when constitution
and statute are silent, and the judge must look to the common law for the rule that
fits the case. He is the living oracle of the law in Blackstone's vivid phrase.
Looking at Sir Oracle in action, viewing his work in the dry light of realism, how
does he set about his task?
The first thing he does is to compare the case before him with the precedents,
whether stored in his mind or hidden in the books. I do not mean that precedents
are ultimate sources of the law, supplying the sole equipment that is needed for the
legal armory, the sole tools, to borrow Maitland's phrase, in the legal smithy. Back
of precedents are the basic juridical conceptions which are the postulates of judicial
reasoning, and farther back are the habits of life, the institutions of society, in
which those conceptions had their origin, and which, by a process of interaction,
they have modified in turn., None the less, in a system so highly developed as our
own, precedents have so covered the ground that they fix the point of departure
from which the labor of the judge begins. Almost invariably, his first step is to
examine and compare them. If they are plain and to the point, there may be need of
nothing more. Stare decisis is at least the everyday working rule of our law. . . .
[T]he work of deciding cases in accordance with precedents that plainly fit them is a
process similar in its nature to that of deciding cases in accordance with a statute.
It is a process of search, comparison, and little more. Some judges seldom get
beyond that process in any case. Their notion of their duty is to match the colors of
the case at hand against the colors of many sample cases spread out upon their
desk. The sample nearest in shade supplies the applicable rule. But, of course, no
system of living law can be evolved by such a process, and no judge of a high court,
worthy of his office, views the function of his place so narrowly. If that were all
there was to our calling, there would be little of intellectual interest about it. The
man who had the best card index of the cases would also be the wisest judge. It is
when the colors do not match, when the references in the index fail, when there is
no decisive precedent, that the serious business of the judge begins. He must then
23
fashion law for the litigants before him. In fashioning it for them, he will be
fashioning it for others. . . .
. . . Every judgment has a generative power. It begets in its own image. Every
precedent . . . has a directive force for future cases of the same or similar nature.
Until the [principle is] pronounced, [the matter] was as yet in equilibrium. Its form
and content were uncertain. Any one of many principles might lay hold of it and
shape it. Once declared, it is a new stock of descent. It is charged with vital power.
It is the source from which new principles or norms may spring to shape
[controversies] thereafter. [This] is one of the living forces of our law. Not all the
progeny of principles begotten of a judgment survive, however, to maturity. Those
that cannot prove their worth and strength by the test of experience are sacrificed
mercilessly and thrown into the void. The common law does not work from pre-
established truths of universal and inflexible validity to conclusions derived from
them deductively. Its method is inductive, and it draws its generalizations from
particulars. The process has been admirably stated by Munroe Smith: In their
effort to give to the social sense of justice articulate expression in rules and in
principles, the method of the [common law] has always been experimental. The
rules and principles of case law have never been treated as final truths, but as
working hypotheses, continually retested in those great laboratories of the law, the
courts of justice. Every new case is an experiment; and if the accepted rule which
seems applicable yields a result which is felt to be unjust, the rule is reconsidered.
It may not be modified at once, for the attempt to do absolute justice in every single
case would make the development and maintenance of general rules impossible; but
if a rule continues to work injustice, it will eventual]y be reformulated. The
principles themselves are continually retested; for if the rules derived from a
principle do not work well, the principle itself must ultimately be re-examined. . . .
The directive force of logic does not always exert itself, however, along a single
and unobstructed path. One principle or precedent, pushed to the limit of its logic,
may point to one conclusion; another principle or precedent, followed with like logic,
may point with equal certainty to another. In this conflict, we must choose between
the two paths, selecting one or other, or perhaps striking out upon a third, which
will be the resultant of the two forces in combination, or will represent the mean
between extremes. . . . The thing which really interests us [is] why and how the
choice [is] made between one logic and another. [Analogies] and precedents and the
principles behind them [are] brought together as rivals for precedence; in the end,
the principle that [is] thought to be most fundamental, to represent the larger and
deeper social interests, [puts] its competitors to flight. . . .
* * * * *
[L]ogic, and history, and custom, and utility, and the accepted standards of
right conduct, are the forces which singly or in combination shape the progress of
the law. Which of these forces shall dominate in any case must depend largely upon
the comparative importance or value of the social interests that will be thereby
promoted or impaired. One of the most fundamental social interests is that law

24
shall be uniform and impartial. There must be nothing in its action that savors of
prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there
shall be adherence to precedent. There shall be symmetrical development,
consistently with history or custom when history or custom has been the motive
force, or the chief one, in giving shape to existing rules, and with logic or philosophy
when the motive power has been theirs. But symmetrical development may be
bought at too high a price. Uniformity ceases to be a good when it becomes
uniformity of oppression. The social interest served by symmetry or certainty must
then be balanced against the social interest served by equity and fairness or other
elements of social welfare. These may enjoin upon the judge the duty of drawing the
line at another angle, of staking the path along new courses, of marking a new point
of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only
answer that he must get his knowledge just as the legislator gets it, from experience
and study and reflection; in brief, from life itself. Here, indeed, is the point of
contact between the legislator's work and his. The choice of methods, the
appraisement of values, must in the end be guided by like considerations for the one
as for the other. Each indeed is legislating within the limits of his competence. No
doubt the limits for the [common law] judge are narrower. He legislates only
between gaps. He fills the open spaces in the law. How far he may go without
traveling beyond the walls of the interstices cannot be staked out for him upon a
chart. He must learn it for himself as he gains the sense of fitness and proportion
that comes with years of habitude in the practice of an art. Even within the gaps,
restrictions not easy to define, but felt, however impalpable they may be, by every
judge and lawyer, hedge and circumscribe his action. They are established by the
traditions of the centuries, by the example of other judges, his predecessors and his
colleagues, by the collective judgment of the profession, and by the duty of
adherence to the pervading spirit of the law. . . .
None the less, within the confines of these open spaces and those of precedent
and tradition, choice moves with a freedom which stamps its action as creative. The
law which is the resulting product is not found, but made. The process, being
legislative, demands the legislator's wisdom. . . .
* * * * *
I was much troubled in spirit, in my first years upon the bench, to find how
trackless was the ocean on which I had embarked. I sought for certainty. I was
oppressed and disheartened when I found that the quest for it was futile. I was
trying to reach land, the solid land of fixed and settled rules, the paradise of a
justice that would declare itself by tokens plainer and more commanding than its
pale and glimmering reflections in my own vacillating mind and conscience. I found
with the voyagers in Brownings Paracelsus that the real heaven was always
beyond. As the years have gone by, and as I have reflected more and more upon the
nature of the judicial process, I have become reconciled to the uncertainty, because I
have grown to see it as inevitable. I have grown to see that the process in its highest

25
reaches is not discovery, but creation; and that the doubts and misgivings, the
hopes and fears, are part of the travail of mind, the pangs of death and the pangs of
birth, in which principles that have served their day expire, and new principles are
born. . . .
* * * * *
Ever in the making, as law develops through the centuries, [it] silently and
steadily effaces our mistakes and eccentricities. I sometimes think that we worry
ourselves overmuch about the enduring consequences of our errors. They may work
a little confusion for a time. In the end, they will be modified or corrected or their
teachings ignored. The future takes care of such things. In the endless process of
testing and retesting, there is a constant rejection of the dross, and a constant
retention of whatever is pure and sound and fine.
The future . . . is yours. We have been called to do our parts in an ageless
process. Long after I am dead and gone, and my little part in it is forgotten, you will
be here to do your share, and to carry the torch forward. . . .

26
Winterbottom v. Wright defendant. But that is by no means a
necessary consequence--he may be
10 Meeson & Welsby 109 (1842)
remediless altogether.
Court of Exchequer -- Trinity Term, June
There is no privity of contract
6, 1842 between these parties; and if the plaintiff
can sue, every passenger, or even any
[The defendant Wright entered a person passing along the road, who was
contract with the Postmaster-General to injured by the upsetting of the coach,
provide a mail coach to carry mail bags might bring a similar action. Unless we
from Hartford to Holyhead. As part of the confine the operation of such contracts as
contract, the defendant agreed to keep the this to the parties who entered into them,
coach in a fit, proper and secure condition. the most absurd and outrageous
Nathaniel Atkinson entered a contract consequences, to which I can see no limit,
with the Postmaster-General to convey would ensue. * * *
the mail coach from Hartford to Holyhead
and to supply horses and coachmen for ALDERSON, B[aron].-- I am of the
that purpose. The plaintiff Winterbottom, same opinion. The contract in this case
a mail coachman, hired himself to was made with the Postmaster-General
Atkinson. While driving the coach, the alone; and the case is just the same as if
plaintiff, because of the unsafe and unfit he had come to the defendant and ordered
condition of the coach, was thrown from a carriage, and handed it at once over to
his seat and lamed for life.] Atkinson. If we were to hold that the
plaintiff could sue in such a case, there is
LORD ABINGER, C[hief] B[aron].-- I no point at which such actions would stop.
am clearly of opinion that the defendant is The only safe rule is to confine the right to
entitled to our judgment. We ought not to recover to those who enter into the
permit a doubt to rest upon this subject, contract: if we go one step beyond that,
for our doing so might be the means of there is no reason why we should not go
letting in upon us an infinity of actions. fifty. The only real argument in favour of
This is an action of the first impression. * the action is, that this is a case of
* * Here the action is brought simply hardship; but that might have been
because the defendant was a contractor obviated, if the plaintiff had made himself
with a third person; and it is contended a party to the contract. * * *
that thereupon he became liable to
everybody who might use the carriage. If ROLFF, B[aron].-- The breach of the
there had been any ground for such an defendant's duty, stated in this
action, there certainly would have been declaration, is his omission to keep the
some precedent of it; but with the carriage in a safe condition; and when we
exception of actions against innkeepers, examine the mode in which that duty is
and some few other persons, no case of a alleged to have arisen, we find a
similar nature has occurred in practice. statement that the defendant took upon
That is a strong circumstance, and is of himself, to wit, under and by virtue of the
itself a great authority against its said contract, the sole and exclusive duty,
maintenance. It is however contended, charge, care, and burden of the repairs,
that this contract being made on the state, and condition of the said mail-
behalf of the public by the Postmaster- coach, and, during all the time aforesaid,
General, no action could be maintained it had become and was the sole and
against him, and therefore the plaintiff exclusive duty of the defendant, to wit,
must have a remedy against the under and by virtue of his said contract,

27
to keep and maintain the said mail-coach
in a fit, proper, safe, and secure state and
condition. The duty, therefore, is shown to
have arisen solely from the contract; and
the fallacy consists in the use of that word
"duty." If a duty to the Postmaster-
General be meant, that is true; but if a
duty to the plaintiff be intended, (and in
that sense the word is evidently used,)
there was none. This is one of those
unfortunate cases in which there certainly
has been damnum, but it is damnum
absque injuri; it is, no doubt, a hardship
upon the plaintiff to be without a remedy,
but, by that consideration we ought not to
be influenced. Hard cases, it has been
frequently observed, are apt to introduce
bad law.
Judgment for the defendant.

28
Frederick Longmeid and Eliza his treated him, would be liable to an action
Wife v Holliday for a misfeasance. [And] it may be the
same when any one delivers to another
155 E.R. 752 without notice an instrument in its nature
Court of Exchequer dangerous, or under particular
June 10, 1851 circumstances, as a loaded gun which he
himself loaded, and that other person to
At the trial * * * it appeared that the
whom it is delivered is injured thereby, or
defendant, who kept a shop in London for
if he places it in a situation easily
the sale of lamps, (but who was not
accessible to a third person, who sustains
himself a manufacturer,) sold a lamp,
damage from it.
called Holliday's Patent Lamp, to
[plaintiff Frederick Longmeid], for the But it would be going much too far to
purpose of being used by him and his wife. say, that so much care is required in the
There was evidence that the lamp was ordinary intercourse of life between one
defectively constructed, but no proof that individual and another, that, if a machine
the defendant [knew] of the defect; and not in its nature dangerous,a carriage
the jury found that he [sold] the lamp in for instance,but which might become so
good faith. In using the lamp with by a latent defect entirely unknown,
naphtha it exploded, and the plaintiff's although discoverable by the exercise of
wife met with considerable personal ordinary care, should be lent or given by
injury, for which the two plaintiffs one person, even by the person who
brought this action, the plaintiff Frederick manufactured it, to another, the former
Longmeid having previously recovered should be answerable to the latter for a
damages in another action for the subsequent damage accruing by the use of
defendant's breach of implied warranty of it. Could it be contended with justice in
sale. * * * the present case, that if the lamp had
been lent or given by the defendant to the
The judgment of the Court was now
plaintiff's wife, and used by her, he would
delivered by Parke, B.: * * *
have been answerable for the personal
There [are] cases, no doubt, [in] which damage which she sustained, the
a third person, though not a party to the defendant not knowing or having any
contract, may sue for the damage reason to believe it was not perfectly safe,
sustained, if it be broken. These cases although liable to the party to whom he
occur where there has been a wrong done contracted to sell it, upon an implied
to that person, for which he would have warranty that it was fit for use, so far as
had a right of action, though no such reasonable care could make it, for the
contract had been made. As for example, breach of that contract as to all damage
if an apothecary administered improper sustained by him.
medicines to his patient, or a surgeon
We are of opinion, therefore, that if
unskillfully treated him, and thereby
there had been in this case a breach of
injured his health, he would be liable to
contract with the plaintiffs, the husband
the patient, even where the father or
might have sued for it; but there being no
friend of the patient may have been the
misfeasance towards the wife
contracting party with the apothecary or
independently of the contract, she cannot
surgeon; for though no such contract had
sue and join herself with her husband.
been made, the apothecary, if he gave
Therefore a nonsuit must be entered.
improper medicines, or the surgeon, if he
took him as a patient and unskillfully

29
time, from its effects, although for a short
Thomas and Wife time her life was thought to be in great
danger. The medicine administered was
v. belladonna, and not dandelion. The jar
Winchester from which it was taken was labeled "1/2
lb. dandelion, prepared by A. Gilbert, No.
Court of Appeals of New York 108, John-street, N. Y. Jar 8 oz." It was
Decided July 1852 sold for and believed by Dr. Foord to be
the extract of dandelion as labeled. Dr.
Foord purchased the article as the extract
6 NY 397
of dandelion from Jas. S. Aspinwall, a
druggist at New-York. Aspinwall bought
it of the defendant as extract of dandelion,
RUGGLES, Ch. J. delivered the opinion of believing it to be such. The defendant was
the court. engaged at No. 108 John-street, New-
York, in the manufacture and sale of
This is an action brought to recover
certain vegetable extracts for medicinal
damages from the defendant for
purposes, and in the purchase and sale of
negligently putting up, labeling and
others. The extracts manufactured by him
selling as and for the extract of dandelion,
were put up in jars for sale, and those
which is a simple and harmless medicine,
which he purchased were put up by him
a jar of the extract of belladonna, which is
in like manner. The jars containing
a deadly poison; by means of which the
extracts manufactured by himself and
plaintiff Mary Ann Thomas, to whom,
those containing extracts purchased by
being sick, a dose of dandelion was
him from others, were labeled alike. Both
prescribed by a physician, and a portion of
were labeled like the jar in question, as
the contents of the jar, was administered
"prepared by A. Gilbert." Gilbert was a
as and for the extract of dandelion, was
person employed by the defendant at a
greatly injured.
salary, as an assistant in his business.
The facts proved were briefly these: The jars were labeled in Gilbert's name
Mrs. Thomas being in ill health, her because he had been previously engaged
physician prescribed for her a dose of in the same business on his own account
dandelion. Her husband purchased what at No. 108 John-street, and probably
was believed to be the medicine because Gilbert's labels rendered the
prescribed, at the store of Dr. Foord, a articles more salable. The extract
physician and druggist in Cazenovia, contained in the jar sold to Aspinwall, and
Madison county, where the plaintiffs by him to Foord, was not manufactured by
reside. the defendant, but was purchased by him
A small quantity of the medicine thus from another manufacturer or dealer. The
purchased was administered to Mrs. extract of dandelion and the extract of
Thomas, on whom it produced very belladonna resemble each other in color,
alarming effects; such as coldness of the consistence, smell and taste; but may on
surface and extremities, feebleness of careful examination be distinguished the
circulation, spasms of the muscles, one from the other by those who are well
giddiness of the head, dilation of the acquainted with these articles. Gilbert's
pupils of the eyes, and derangement of labels were paid for by Winchester and
mind. She recovered however, after some

30
used in his business with his knowledge & Welsb. 109,) was decided. A. contracted
and assent. * * * with the postmaster general to provide a
coach to convey the mail bags along a
[T]he question is, whether the
certain line of road, and B. and others,
defendant, being a remote vendor of the
also contracted to horse the coach along
medicine, and there being no privity or
the same line. B. and his co-contractors
connection between him and the
hired C., who was the plaintiff, to drive
plaintiffs, the action can be maintained.
the coach. The coach, in consequence of
If, in labeling a poisonous drug with the
some latent defect, broke down; the
name of a harmless medicine, for public
plaintiff was thrown from his seat and
market, no duty was violated by the
lamed. It was held that C. could not
defendant, excepting that which he owed
maintain an action against A. for the
to Aspinwall, his immediate vendee, in
injury thus sustained. The reason of the
virtue of his contract of sale, this action
decision is best stated by Baron Rolfe. A.'s
cannot be maintained. If A. build a wagon
duty to keep the coach in good condition,
and sell it to B., who sells it to C., and C.
was a duty to the postmaster general,
hires it to D., who in consequence of the
with whom he made his contract, and not
gross negligence of A. in building the
a duty to the driver employed by the
wagon is overturned and injured, D.
owners of the horses.
cannot recover damages against A., the
builder. A.'s obligation to build the wagon But the case in hand stands on a
faithfully, arises solely out of his contract different ground. The defendant was a
with B. The public have nothing to do dealer in poisonous drugs. Gilbert was his
with it. Misfortune to third persons, not agent in preparing them for market. The
parties to the contract, would not be a death or great bodily harm of some person
natural and necessary consequence of the was the natural and almost inevitable
builder's negligence; and such negligence consequence of the sale of belladonna by
is not an act imminently dangerous to means of the false label.
human life.
Gilbert, the defendant's agent, would
So, for the same reason, if a horse be have been punishable for manslaughter if
defectively shod by a smith, and a person Mrs. Thomas had died in consequence of
hiring the horse from the owner is thrown taking the falsely labeled medicine. Every
and injured in consequence of the smith's man who, by his culpable negligence,
negligence in shoeing; the smith is not causes the death of another, although
liable for the injury. The smith's duty in without intent to kill, is guilty of
such case grows exclusively out of his manslaughter. (2 R. S. 662, 19.) A
contract with the owner of the horse; it chemist who negligently sells laudanum
was a duty which the smith owed to him in a phial labeled as paregoric, and
alone, and to no one else. And although thereby causes the death of a person to
the injury to the rider may have happened whom it is administered, is guilty of
in consequence of the negligence of the manslaughter. (Tessymond's case, 1
smith, the latter was not bound, either by Lewin's Crown Cases, 169.) "So highly
his contract or by any considerations of does the law value human life, that it
public policy or safety, to respond for his admits of no justification wherever life
breach of duty to anyone except the has been lost and the carelessness or
person he contracted with. negligence of one person has contributed
to the death of another. (Regina v.
This was the ground on which the
Swindall, 2 Car. & Kir. 232-3.) And this
case of Winterbottom v. Wright, (10 Mees.
rule applies not only where the death of

31
one is occasioned by the negligent act of horse and cart who leaves them
another, but where it is caused by the unattended in the street is liable for any
negligent omission of a duty of that other. damage which may result from his
(2 Car. & Kir. 368, 371.) Although the negligence. (Lynch v. Nurdin, 1 Ad. &
defendant Winchester may not be Ellis, N. S. 29; Illidge v. Goodwin, 5 Car.
answerable criminally for the negligence & Payne, 190.) The owner of a loaded gun
of his agent, there can be no doubt of his who puts it into the hands of a child by
liability in a civil action, in which the act whose indiscretion it is discharged, is
of the agent is to be regarded as the act of liable for the damage occasioned by the
the principal. discharge. (5 Maule & Sel. 198.) The
defendant's contract of sale to Aspinwall
In respect to the wrongful and
does not excuse the wrong done to the
criminal character of the negligence
plaintiffs. It was a part of the means by
complained of, this case differs widely
which the wrong was effected. The
from those put by the defendant's counsel.
plaintiffs' injury and their remedy would
No such imminent danger existed in those
have stood on the same principle, if the
cases. In the present case the sale of the
defendant had given the belladonna to Dr.
poisonous article was made to a dealer in
Foord without price, or if he had put it in
drugs, and not to a consumer. The injury
his shop without his knowledge, under
therefore was not likely to fall on him, or
circumstances which would probably have
on his vendee who was also a dealer; but
led to its sale on the faith of the label. * *
much more likely to be visited on a remote
*
purchaser, as actually happened. The
defendant's negligence put human life in The defendant, on the trial, insisted
imminent danger. Can it be said that that Aspinwall and Foord were guilty of
there was no duty on the part of the negligence in selling the article in
defendant, to avoid the creation of that question for what it was represented to be
danger by the exercise of greater caution? in the label; and that the suit, if it could
or that the exercise of that caution was a be sustained at all, should have been
duty only to his immediate vendee, whose brought against Foord. The judge charged
life was not endangered? The defendant's the jury that if they, or either of them,
duty arose out of the nature of his were guilty of negligence in selling the
business and the danger to others belladonna for dandelion, the verdict
incident to its mismanagement. Nothing must be for the defendant; and left the
but mischief like that which actually question of their negligence to the jury,
happened could have been expected from who found on that point for the plaintiff.
sending the poison falsely labeled into the If the case really depended on the point
market; and the defendant is justly thus raised, the question was properly left
responsible for the probable consequences to the jury. But I think it did not. The
of the act. defendant, by affixing the label to the jar,
represented its contents to be dandelion;
The duty of exercising caution in this
and to have been "prepared" by his agent
respect did not arise out of the
Gilbert. The word 'prepared' on the label,
defendant's contract of sale to Aspinwall.
must be understood to mean that the
The wrong done by the defendant was in
article was manufactured by him, or that
putting the poison, mislabeled, into the
it had passed through some process under
hands of Aspinwall as an article of
his hands, which would give him personal
merchandise to be sold and afterwards
knowledge of its true name and quality.
used as the extract of dandelion, by some
Whether Foord was justified in selling the
person then unknown. The owner of a

32
article upon the faith of the defendant's extract of dandelion; and that the
label, would have been an open question defendant knew it to be such. So far as
in an action by the plaintiffs against him, the defendant is concerned, Foord was
and I wish to be understood as giving no under no obligation to test the truth of the
opinion on that point. But it seems to me representation. The charge of the judge in
to be clear that the defendant cannot, in submitting to the jury the question in
this case, set up as a defense, that Foord relation to the negligence of Foord and
sold the contents of the jar as and for Aspinwall, cannot be complained of by the
what the defendant represented it to be. defendant.
The label conveyed the idea distinctly to
Judgment affirmed.
Foord that the contents of the jar was the

33
George W. Loop and Richard Bennett, was caused by said hole and boring in the
Administrators, &c., of Jeremiah rim, and that a fragment of the wheel
Loop, deceased, Appellants when it burst hit Jeremiah Loop in his
v. side and inflicted a mortal wound, of
which he died on the 29th of October,
Lyman Litchfield and Duandler F.
1866. That such death was occasioned by
Moore, Respondents
said wrongful act and negligence of
defendants, and plaintiffs bring this
Court of Appeals of New York.
action as his legal representatives, for the
June 21. 1870 benefit of his widow and next of kin. The
42 N. Y. 351 jury found a verdict for the plaintiff. On
appeal to the General Term, the judgment
[The complaint alleged that in 1861 was reversed and a new trial ordered,
the defendants were partners in from which the plaintiffs appeal.]
manufacturing iron castings and
machinery, and made a cast-iron balance
wheel to be used with a circular saw. That HUNT, J.
the balance wheel had a large hole in its A piece of machinery already made
rim, occasioned by negligence in casting and on hand, having defects which
it, by which its thickness and strength weaken it, is sold by the manufacturer to
were diminished, and by defendants' one who buys it for his own use. The
wrongful act this hole was concealed by defects are pointed out to the purchaser
filling it with lead and finishing the and are fully understood by him. This
surface of the rim so as to resemble a piece of machinery is used by the buyer
sound wheel. The strength of the rim was for five years, and is then taken into the
further diminished by boring through it, possession of a neighbor, who uses it for
so as to insert a rivet to hold the lead in his own purposes. While so in use, it flies
the hole, and by the wrongful act of apart by reason of its original defects, and
defendants they sold this wheel to the person using it is killed. Is the seller,
Leverett Collister as a sound wheel and upon this state of facts, liable to the
fit for use. That in 1864 Collister leased to representatives of the deceased party? * *
Jeremiah Loop a frame for a circular wood *
saw, to be used with a circular saw for the
purpose of sawing wood, to the arbor shaft To maintain this liability, the
on which frame said balance wheel was appellants rely upon the case of Thomas
attached. That Loop put a saw on the v. Winchester (6 N. Y., 2 Seld., 397). [They
arbor, and used the saw, balance wheel assert] that the fly wheel in question was
and frame in sawing wood for himself and a dangerous instrument. Poison is a
Collister and for others, without dangerous subject. Gunpowder is the
knowledge of the hole in the rim of the same. A torpedo is a dangerous
balance wheel, and in the belief that it instrument, as is a spring gun, a loaded
was a sound balance wheel and fit for use. rifle or the like. They are instruments and
That in October, 1866, Loop was so using articles in their nature calculated to do
the saw and balance wheel attached in injury to mankind, and generally
sawing wood, in a careful and prudent intended to accomplish that purpose.
manner, when the balance wheel burst in They are essentially, and in their
the hole in its rim and directly through elements, instruments of danger. Not so,
the hole made to insert the rivet to hold however, an iron wheel, a few feet in
the lead in its place. That such bursting diameter and a few inches in thickness,

34
although one part may be weaker than done by the defendant instead of his
another. If the article is abused by too agent, and the death of Mrs. Thomas had
long use, or by applying too much weight ensued, the defendant would have been
or speed, an injury may occur, as it may guilty of manslaughter, as held by the
from an ordinary carriage wheel, a wagon court. The injury in that case was a
axle, or the common chair in which we sit. natural result of the act. It was just what
There is scarcely an object in art or was to have been expected from putting
nature, from which an injury may not falsely labeled poisons in the market, to
occur under such circumstances. Yet they be used by whoever should need the true
are not in their nature sources of danger, articles. It was in its nature an act
nor can they, with any regard to the imminently dangerous to the lives of
accurate use of language, be called others. Not so here. The bursting of the
dangerous instruments. That an injury wheel and the injury to human life was
actually occurred by the breaking of a not the natural result or the expected
carriage axle, the failure of the carriage consequence of the manufacture and sale
body, the falling to pieces of a chair or of the wheel. Every use of the counterfeit
sofa, or the bursting of a fly wheel, does medicines would be necessarily injurious,
not in the least alter its character. while this wheel was in fact used with
safety for five years. * * *
It is suggested that it is no more
dangerous or illegal to label a deadly I am of the opinion that the verdict
poison as a harmless medicine than to cannot be sustained. The facts constitute
conceal a defect in a machine and paint it no cause of action.
over so that it will appear sound. * * * I
The order of the General Term should
answer, that the decision in Thomas v.
be affirmed, and judgment absolute given
Winchester was based upon the idea that
for the defendants.
the negligent sale of poisons is both at
common law and by statute an indictable All concur. Judgment affirmed, and
offence. If the act in that case had been judgment absolute

35
Hervey Losee, Appellant
v.
Cadwallader C. Clute et al., Respondents
Court of Appeals of New York.
Decided January Term, 1873
51 N.Y. 494
APPEAL from judgment of the General Term of the Supreme Court in the fourth
judicial district, affirming a judgment entered upon an order dismissing plaintiff's
complaint on the trial.
The action was brought to recover damages caused to the property of the plaintiff by
the explosion of a steam boiler while the same was owned and being used by the Saratoga
Paper Company at their mill situated in the village of Schuylerville, Saratoga county and
State of New York, on the thirteenth day of February, 1864, by means whereof the boiler
was thrown on to the plaintiff's premises and through several of his buildings, thereby
injuring and damaging the same.
The defendants, Clute, were made parties defendants to the action with the Saratoga
Paper Company and Coe S. Buchanan and Daniel A. Bullard, trustees and agents of said
company, on the ground that they were the manufacturers of the boiler, and made the same
out of poor and brittle iron and in a negligent and defective manner, in consequence of
which negligence said explosion occurred.
At the close of the evidence the complaint was dismissed as to the defendants Clute.
LOTT, Ch. C.
It appears by the case that the defendants Clute manufactured the boiler in question
for the Saratoga Paper Company, in which they were stockholders, for the purposes and
uses to which it was subsequently applied by it; and the testimony tended to show that it
was constructed improperly and of poor iron, that the said defendants knew at the time
that it was to be used in the immediate vicinity of and adjacent to dwelling-houses and
stores in a village, so that, in case of an explosion while in use, it would be likely to be
destructive to human life and adjacent property, and that, in consequence of the negligence
of the said defendants in the improper construction of the boiler, the explosion that took
place occurred and damaged the plaintiff's property. The evidence also tended to show that
the boiler was tested by the company to its satisfaction, and then accepted, and was
thereafter used by it for about three months prior to the explosion, and that after such test
and acceptance the said defendants had nothing whatever to do with the boiler, and had no
care or management of it at the time of the explosion, but that the company had the sole
and exclusive ownership, management and conduct of it.
In determining whether the complaint was properly dismissed, we must assume all the
facts which the evidence tended to show as established, and the question is thereby
presented whether the defendants have incurred any liability to the plaintiff. They
contracted with the company, and did what was done by them for it and to its satisfaction,
and when the boiler was accepted they ceased to have any further control over it or its
management, and all responsibility for what was subsequently done with it devolved upon
the company and those having charge of it, and the case falls within the principle decided
by the Court of Appeals in The Mayor, etc., of Albany v. Cunliff (2 Comst., 165), which is,

36
that [the] architect or builder of a work [is] not liable for accidents or injuries which may
occur after the execution of the work; and the opinions published in that case clearly show
that there is no ground of liability by the defendants to the plaintiff in this action. They
owed him no duty whatever at the time of the explosion either growing out of contract or
imposed by law.
It may be proper to refer to the case of Thomas v. Winchester (2 Selden, 397), cited by
the appellant's counsel, and I deem it sufficient to say that the opinion of HUNT, J., in Loop
v. Litchfield (42 N. Y., 351) clearly shows that the principle decided in that case has no
application to this.
It appears from these considerations that the complaint was properly dismissed, and it
follows that there was no case made for the consideration of the jury, and, consequently,
there was no error in the refusal to submit it to them.
All concur.
Judgment affirmed.

37
Ellsworth M. Statler, Respondent
v.
George A. Ray Manufacturing Company, Appellant.
Court of Appeals of New York.
Decided June 18, 1909.
195 N.Y. 478, 88 N.E. 1063

HISCOCK, J.
This action was brought to recover damages for personal injuries sustained through the
explosion of a large coffee urn whereby the plaintiff and another were severely scalded and
a third person killed. The defendant was engaged in manufacturing and vending such urns
for use in hotels. They were constructed in what was called a battery of three. The central
urn or boiler was equipped with a coil of pipe through which steam was driven whereby
water was heated which was siphoned into the urn on either side where the coffee was
made. In the case of the appliance in question the central urn was of considerable diameter
and perhaps three or four feet in height, and on the occasion of practically its first use its
bottom was partially driven out by force of steam and water and the accident to plaintiff
caused. The defendant did not sell this urn to the plaintiff but to a jobber, who in turn sold
the same to a company of which plaintiff was an officer. Thus there were no contractual
relations between the parties to this action, but plaintiff instituted and thus far has
succeeded in his action on the theory that defendant well knew the purposes for which its
urn was to be used; that the latter was of such a character inherently that, when applied to
the purposes for which it was designed, it was liable to become a source of great danger to
many people if not carefully and properly constructed; that the defendant negligently and
carelessly constructed it so that it was imminently dangerous when employed as intended
to be, and that as the natural and direct result of this negligent and heedless conduct the
urn exploded and the plaintiff was injured. * * *
This leaves [the] question whether a manufacturer and vendor of such an inherently
dangerous appliance as this was may be made liable to a third party on the theory invoked
by plaintiff, and we think that this question must be regarded as settled in the latter's favor
by the following authorities: Thomas v. Winchester (6 N. Y. 397); Devlin v. Smith (89 N. Y.
470, 474-477); Torgesen v. Schultz (192 N. Y. 156).
The Torgesen case is the last decision by this court on this general subject. That action
was one by the plaintiff to recover against the defendant for personal injuries caused by the
bursting of a siphon bottle of aerated water filled and put on the market by the latter. The
plaintiff enjoyed no contractual relation whatever with the defendant, and the action was
maintained on the same principles urged in this action. It was in that case in substance
held that if a vendor had knowledge that the bottles used for aerated water when charged
at a certain pressure were liable to explode unless first subjected to an adequate test, and
there was evidence that the test used by such vendor was insufficient to render it
reasonably certain that bottles charged at such pressure would not explode when used as
customers might be expected to use them, the question of the defendant's negligence should
be submitted to the jury. The action thus was based upon no contractual relation, but upon
the ground of negligence. As the basis in part at least of the decision, Judge Willard
Bartlett, writing in behalf of the court, quoted with approval the rule laid down by Lord

38
Justice Cotton in Heaven v. Pender (L. R. [[[11 Q. B. D.] 503) as follows: Any one who
leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without
due warning supplies to others for use an instrument or thing which to his knowledge, from
its construction or otherwise is in such a condition as to cause danger, not necessarily
incident to the use of such an instrument or thing, is liable for injury caused to others by
reason of his negligent act. This rule distinctly recognizes the principle that in the case of
an article of an inherently dangerous nature, a manufacturer may become liable for a
negligent construction which, when added to the inherent character of the appliance, makes
it imminently dangerous, and causes or contributes to a resulting injury not necessarily
incident to the use of such an article if properly constructed, but naturally following from a
defective construction.
While thus we should not hesitate to affirm the judgment on its general merits we find
that errors were committed in rulings on evidence which are so pronounced and in the
aggregate at least so important and prejudicial to the rights of the defendant that they
cannot be overlooked. * * *
The judgment appealed from should be reversed and a new trial granted, with costs to
abide event.
Judgment reversed, etc.

39
Donald C. MacPherson, Respondent,
v.
Buick Motor Company, Appellant.

Court of Appeals of New York


Decided March 14, 1916
217 N.Y. 382, 111 N.E. 1050
MacPherson v. Buick Motor Co., 160 App. Div. 55, affirmed.

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme


Court in the third judicial department, entered January 8, 1914, affirming a judgment in
favor of plaintiff entered upon a verdict.
Cardozo, J.
The defendant is a manufacturer of automobiles. It sold an automobile to a retail
dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it
suddenly collapsed. He was thrown out and injured. One of the wheels was made of
defective wood, and its spokes crumbled into fragments. The wheel was not made by the
defendant; it was bought from another manufacturer. There is evidence, however, that its
defects could have been discovered by reasonable inspection, and that inspection was
omitted. There is no claim that the defendant knew of the defect and willfully concealed it.
The charge is one, not of fraud, but of negligence. The question to be determined is whether
the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.
The foundations of this branch of the law, at least in this state, were laid in Thomas v.
Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist,
who in turn sold to a customer. The customer recovered damages from the seller who
affixed the label. The defendant's negligence, it was said, put human life in imminent
danger. A poison falsely labeled is likely to injure anyone who gets it. Because the danger
is to be foreseen, there is a duty to avoid the injury. * * *
Thomas v. Winchester became quickly a landmark of the law. In the application of its
principle there may at times have been uncertainty or even error. There has never in this
state been doubt or disavowal of the principle itself. The chief cases are well known, yet to
recall some of them will be helpful. Loop v. Litchfield (42 N. Y. 351) is the earliest. It was
the case of a defect in a small balance wheel used on a circular saw. The manufacturer
pointed out the defect to the buyer, who wished a cheap article and was ready to assume
the risk. The risk can hardly have been an imminent one, for the wheel lasted five years
before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held
that the manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in
Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has
been criticized (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th
ed.], 117); but it must be confined to its special facts. It was put upon the ground that the
risk of injury was too remote. The buyer in that case had not only accepted the boiler, but
had tested it. The manufacturer knew that his own test was not the final one. The finality
of the test has a bearing on the measure of diligence owing to persons other than the
purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54).

40
These early cases suggest a narrow construction of the rule. Later cases, however,
evince a more liberal spirit. First in importance is Devlin v. Smith (89 N. Y. 470). The
defendant, a contractor, built a scaffold for a painter. The painter's servants were injured.
The contractor was held liable. He knew that the scaffold, if improperly constructed, was a
most dangerous trap. He knew that it was to be used by the workmen. He was building it
for that very purpose. Building it for their use, he owed them a duty, irrespective of his
contract with their master, to build it with care.
From Devlin v. Smith we pass over intermediate cases and turn to the latest case in
this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co.
(195 N. Y. 478, 480). The defendant manufactured a large coffee urn. It was installed in a
restaurant. When heated, the urn exploded and injured the plaintiff. We held that the
manufacturer was liable. We said that the urn was of such a character inherently that,
when applied to the purposes for which it was designed, it was liable to become a source of
great danger to many people if not carefully and properly constructed.
It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of
Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues
that things imminently dangerous to life are poisons, explosives, deadly weapons things
whose normal function it is to injure or destroy. But whatever the rule in Thomas v.
Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin
v. Smith) is not inherently a destructive instrument. It becomes destructive only if
imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co.) may have within itself,
if negligently made, the potency of danger, yet no one thinks of it as an implement whose
normal function is destruction. What is true of the coffee urn is equally true of bottles of
aerated water (Torgeson v. Schultz, 192 N. Y. 156). * * *
We hold, then, that the principle of Thomas v. Winchester is not limited to poisons,
explosives, and things of like nature, to things which in their normal operation are
implements of destruction. If the nature of a thing is such that it is reasonably certain to
place life and limb in peril when negligently made, it is then a thing of danger. Its nature
gives warning of the consequences to be expected. If to the element of danger there is added
knowledge that the thing will be used by persons other than the purchaser, and used
without new tests, then, irrespective of contract, the manufacturer of this thing of danger is
under a duty to make it carefully. That is as far as we are required to go for the decision of
this case. There must be knowledge of a danger, not merely possible, but probable. It is
possible to use almost anything in a way that will make it dangerous if defective. That is
not enough to charge the manufacturer with a duty independent of his contract. Whether a
given thing is dangerous may be sometimes a question for the court and sometimes a
question for the jury. There must also be knowledge that in the usual course of events the
danger will be shared by others than the buyer. Such knowledge may often be inferred from
the nature of the transaction. But it is possible that even knowledge of the danger and of
the use will not always be enough. The proximity or remoteness of the relation is a factor to
be considered. We are dealing now with the liability of the manufacturer of the finished
product, who puts it on the market to be used without inspection by his customers. If he is
negligent, where danger is to be foreseen, a liability will follow. We are not required at this
time to say that it is legitimate to go back of the manufacturer of the finished product and
hold the manufacturers of the component parts. To make their negligence a cause of
imminent danger, an independent cause must often intervene; the manufacturer of the
finished product must also fail in his duty of inspection. It may be that in those

41
circumstances the negligence of the earlier members of the series is too remote to
constitute, as to the ultimate user, an actionable wrong. * * * We leave that question open.
We shall have to deal with it when it arises. The difficulty which it suggests is not present
in this case. There is here no break in the chain of cause and effect. In such circumstances,
the presence of a known danger, attendant upon a known use, makes vigilance a duty. We
have put aside the notion that the duty to safeguard life and limb, when the consequences
of negligence may be foreseen, grows out of contract and nothing else. We have put the
source of the obligation where it ought to be. We have put its source in the law.
From this survey of the decisions, there thus emerges a definition of the duty of a
manufacturer which enables us to measure this defendant's liability. Beyond all question,
the nature of an automobile gives warning of probable danger if its construction is
defective. This automobile was designed to go fifty miles an hour. Unless its wheels were
sound and strong, injury was almost certain. It was as much a thing of danger as a
defective engine for a railroad. The defendant knew the danger. It knew also that the car
would be used by persons other than the buyer. This was apparent from its size; there were
seats for three persons. It was apparent also from the fact that the buyer was a dealer in
cars, who bought to resell. The maker of this car supplied it for the use of purchasers from
the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use
by the servants of the owner. The dealer was indeed the one person of whom it might be
said with some approach to certainty that by him the car would not be used. Yet the
defendant would have us say that he was the one person whom it was under a legal duty to
protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from
the days of travel by stage coach do not fit the conditions of travel to-day. The principle that
the danger must be imminent does not change, but the things subject to the principle do
change. They are whatever the needs of life in a developing civilization require them to be.
In reaching this conclusion, we do not ignore the decisions to the contrary in other
jurisdictions. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) that an
automobile is not within the rule of Thomas v. Winchester. There was, however, a vigorous
dissent. * * * In England the limits of the rule are still unsettled. Winterbottom v. Wright
(10 M. & W. 109) is often cited. * * * The English courts, however, agree with ours in
holding that one who invites another to make use of an appliance is bound to the exercise of
reasonable care (Caledonian Ry. Co. v. Mulholland, L. R. [[[1898] A. C. 216, 227; Indermaur
v. Dames, L. R. [1 C. P.] 274). That at bottom is the underlying principle of Devlin v. Smith.
The contractor who builds the scaffold invites the owner's workmen to use it. The
manufacturer who sells the automobile to the retail dealer invites the dealer's customers to
use it. The invitation is addressed in the one case to determinate persons and in the other
to an indeterminate class, but in each case it is equally plain, and in each its consequences
must be the same.
There is nothing anomalous in a rule which imposes upon A, who has contracted with
B, a duty to C and D and others according as he knows or does not know that the subject-
matter of the contract is intended for their use. We may find an analogy in the law which
measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in
the absence of fraud, to B's guests who enter it and are injured. This is because B is then
under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty,
and, if he omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A
leases a building to be used by the lessee at once as a place of public entertainment, the

42
rule is different. There injury to persons other than the lessee is to be foreseen, and
foresight of the consequences involves the creation of a duty.
* * * Subtle distinctions are drawn by the defendant between things inherently
dangerous and things imminently dangerous, but the case does not turn upon these verbal
niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance,
and this whether you call the danger inherent or imminent.
We think the defendant was not absolved from a duty of inspection because it bought
the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It
was a manufacturer of automobiles. It was responsible for the finished product. It was not
at liberty to put the finished product on the market without subjecting the component parts
to ordinary and simple tests (Richmond & Danville R. R. Co. v. Elliott, 149 U. S. 266, 272).
[N]othing more was required of it. The obligation to inspect must vary with the nature of
the thing to be inspected. The more probable the danger, the greater the need of caution.
There is little analogy between this case and Carlson v. Phnix Bridge Co. (132 N. Y. 273),
where the defendant bought a tool for a servant's use. The making of tools was not the
business in which the master was engaged. Reliance on the skill of the manufacturer was
proper and almost inevitable. But that is not the defendant's situation. Both by its relation
to the work and by the nature of its business, it is charged with a stricter duty.
The judgment should be affirmed.
Willard Bartlett, Ch. J. (dissenting).
The plaintiff was injured in consequence of the collapse of a wheel of an automobile
manufactured by the defendant corporation which sold it to a firm of automobile dealers in
Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the
Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Michigan,
a reputable manufacturer of automobile wheels which had furnished the defendant with
eighty thousand wheels, none of which had proved to be made of defective wood prior to the
accident in the present case. The defendant relied upon the wheel manufacturer to make all
necessary tests as to the strength of the material therein and made no such tests itself. The
present suit is an action for negligence brought by the subvendee of the motor car against
the manufacturer as the original vendor. The evidence warranted a finding by the jury that
the wheel which collapsed was defective when it left the hands of the defendant. The
automobile was being prudently operated at the time of the accident and was moving at a
speed of only eight miles an hour. There was no allegation or proof of any actual knowledge
of the defect on the part of the defendant or any suggestion that any element of fraud or
deceit or misrepresentation entered into the sale.
The theory upon which the case was submitted to the jury by the learned judge who
presided at the trial was that, although an automobile is not an inherently dangerous
vehicle, it may become such if equipped with a weak wheel; and that if the motor car in
question, when it was put upon the market was in itself inherently dangerous by reason of
its being equipped with a weak wheel, the defendant was chargeable with a knowledge of
the defect so far as it might be discovered by a reasonable inspection and the application of
reasonable tests. This liability, it was further held, was not limited to the original vendee,
but extended to a subvendee like the plaintiff, who was not a party to the original contract
of sale.

43
I think that these rulings, which have been approved by the Appellate Division, extend
the liability of the vendor of a manufactured article further than any case which has yet
received the sanction of this court. It has heretofore been held in this state that the liability
of the vendor of a manufactured article for negligence arising out of the existence of defects
therein does not extend to strangers injured in consequence of such defects but is confined
to the immediate vendee. The exceptions to this general rule which have thus far been
recognized in New York are cases in which the article sold was of such a character that
danger to life or limb was involved in the ordinary use thereof; in other words, where the
article sold was inherently dangerous. As has already been pointed out, the learned trial
judge instructed the jury that an automobile is not an inherently dangerous vehicle.
The late Chief Justice COOLEY of Michigan, one of the most learned and accurate of
American law writers, states the general rule thus: The general rule is that a contractor,
manufacturer, vendor or furnisher of an article is not liable to third parties who have no
contractual relations with him for negligence in the construction, manufacture or sale of
such article. (2 Cooley on Torts [3d ed.], 1486.)
The leading English authority in support of this rule, to which all the later cases on the
same subject refer, is Winterbottom v. Wright (10 Meeson & Welsby, 109). * * *
The doctrine of that decision was recognized as the law of this state by the leading New
York case of Thomas v. Winchester (6 N. Y. 397, 408), which, however, involved an
exception to the general rule. There the defendant, who was a dealer in medicines, sold to a
druggist a quantity of belladonna, which is a deadly poison, negligently labeled as extract of
dandelion. The druggist in good faith used the poison in filling a prescription calling for the
harmless dandelion extract and the plaintiff for whom the prescription was put up was
poisoned by the belladonna. This court held that the original vendor was liable for the
injuries suffered by the patient. Chief Judge RUGGLES, who delivered the opinion of the
court, distinguished between an act of negligence imminently dangerous to the lives of
others and one that is not so, saying: if a horse be defectively shod by a smith, and a person
hiring the horse from the owner is thrown and injured in consequence of the smith's
negligence in shoeing; the smith is not liable for the injury.
In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant was the vendor of bottles of
aerated water which were charged under high pressure and likely to explode unless used
with precaution when exposed to sudden changes of temperature. The plaintiff, who was a
servant of the purchaser, was injured by the explosion of one of these bottles. There was
evidence tending to show that it had not been properly tested in order to insure users
against such accidents. We held that the defendant corporation was liable notwithstanding
the absence of any contract relation between it and the plaintiff under the doctrine of
Thomas v. Winchester, and similar cases based upon the duty of the vendor of an article
dangerous in its nature, or likely to become so in the course of the ordinary usage to be
contemplated by the vendor, either to exercise due care to warn users of the danger or to
take reasonable care to prevent the article sold from proving dangerous when subjected
only to customary usage. The character of the exception to the general rule limiting
liability for negligence to the original parties to the contract of sale, was still more clearly
stated by Judge HISCOCK, writing for the court in Statler v. Ray Manufacturing Co. (195
N. Y. 478, 482), where he said that in the case of an article of an inherently dangerous
nature, a manufacturer may become liable for a negligent construction which, when added
to the inherent character of the appliance, makes it imminently dangerous, and causes or
contributes to a resulting injury not necessarily incident to the use of such an article if

44
properly constructed, but naturally following from a defective construction. In that case the
injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting
an appliance liable to become dangerous in the course of ordinary usage.
The case of Devlin v. Smith (89 N. Y. 470) is cited as an authority in conflict with the
view that the liability of the manufacturer and vendor extends to third parties only when
the article manufactured and sold is inherently dangerous. In that case the builder of a
scaffold ninety feet high which was erected for the purpose of enabling painters to stand
upon it, was held to be liable to the administratrix of a painter who fell therefrom and was
killed, being at the time in the employ of the person for whom the scaffold was built. It is
said that the scaffold if properly constructed was not inherently dangerous; and hence that
this decision affirms the existence of liability in the case of an article not dangerous in itself
but made so only in consequence of negligent construction. Whatever logical force there
may be in this view it seems to me clear from the language of Judge RAPALLO, who wrote
the opinion of the court, that the scaffold was deemed to be an inherently dangerous
structure; and that the case was decided as it was because the court entertained that view.
Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the
case fairly within the principle of Thomas v. Winchester.
I do not see how we can uphold the judgment in the present case without overruling
what has been so often said by this court and other courts of like authority in reference to
the absence of any liability for negligence on the part of the original vendor of an ordinary
carriage to anyone except his immediate vendee. The absence of such liability was the very
point actually decided in the English case of Winterbottom v. Wright, and the illustration
quoted from the opinion of Chief Judge RUGGLES in Thomas v. Winchester assumes that
the law on the subject was so plain that the statement would be accepted almost as a
matter of course. In the case at bar the defective wheel on an automobile moving only eight
miles an hour was not any more dangerous to the occupants of the car than a similarly
defective wheel would be to the occupants of a carriage drawn by a horse at the same speed;
and yet unless the courts have been all wrong on this question up to the present time there
would be no liability to strangers to the original sale in the case of the horse-drawn
carriage.
It is [said that] the law should be changed. It this be true, the change should be effected
by the legislature and not by the courts. [C]ourts throughout this country have adhered to
the rule and [have consistently] refused to broaden the scope of the exceptions. I think we
should adhere to it in the case at bar and, therefore, I vote for a reversal of this judgment.
Judgment affirmed.

45
Part III

The Interpretation of Statutes

46
An Introduction to Legal Reasoning
Edward H. Levi
1949

The words [of a statute] are given. They are not to be taken lightly since they
express the will of the legislature. The legislature is the law-making body. It looks
like deduction to apply the words to the specific case. The legislature may have had
a particular case uppermost in mind, but it has spoken in general terms. Not only
respect but application is due to the general words the legislature used. . . .
[But] there may be some ambiguity in the words used. The words are to be
construed in the light of the meaning given to other words in the same or related
statute. The specification of particular instances indicates that similar but
unmentioned instances are not to be included. But the specification of particular
instances, when in addition a word of a general category is used, may be the
indication that other like instances are also intended. . . .

Thus in the application of a statute the intent of the legislature seems


important. The rules of construction are ways of finding out the intent. The actual
words used are important but insufficient. The report of congressional committees
may give some clue. Prior drafts of the statute may show where meaning was
intentionally changed. Bills presented but not passed may have some bearing.
Words spoken in debate may be looked at. Even the conduct of the litigants may be
important in that the failure of the government to have acted over a period of time
on what it now suggests as the proper interpretation throws light on the common
meaning. But it is not easy to find the intent of the legislature. . . .
[In interpreting a statute, a court] is supposed to do what the legislature had in
mind. [The] difficulty is that what the legislature intended is ambiguous. [This] is
not the result of inadequate draftsmanship, as is so frequently urged. Matters are
not decided until they have to be. For a legislature perhaps the pressures are such
that a bill has to be passed dealing with a certain subject. But the precise effect of
the bill is not something upon which the members have to reach agreement. If the
legislature were a court, it would not decide the precise effect until a specific fact
situation arose demanding an answer. Its first pronouncement would not be
expected to fill in the gaps. But since it is not a court, this is even more true. It will
not be required to make the determination in any event, but can wait for the court
to do so.
[Often] the members of the legislative body will be talking about different
things; they cannot force each other to accept even a hypothetical set of facts. The
result is that even in a non-controversial atmosphere just exactly what has been
decided will not be clear. Controversy does not help. Agreement is then possible
only through escape to a higher level of discourse with greater ambiguity. This is

47
one element which makes compromise possible. Moreover, from the standpoint of
the individual member of the legislature there is reason to be deceptive. He must
escape from pressures at home. Newspapers may have created an atmosphere in
which some legislation must be passed. Perhaps the only chance to get legislation
through is to have it mean something not understood by some colleagues. If the
court in construing the legislation is going to look at committee reports and remarks
during debates, words which would be voted down if included in the bill will be used
on the floor or in a report as a kind of illicit and, it is hoped, effective legislation.
And if all this were not sufficient, it cannot be forgotten that to speak of legislative
intent is to talk of group action, where much of the group may be ignorant or
misinformed. Yet the emphasis should not be on this fact, but on the necessity that
there be ambiguity before there can be any agreement about how unknown cases
will be handled.
But the court will search for the legislative intent [in order to] fill the gap. . . .
* * * * *
Legislatures and courts are cooperative lawmaking bodies. It is important to
know where the responsibility lies. If legislation which is disfavored can be
interpreted away from time to time, then it is not to be expected, particularly if
controversy is high, that the legislature will ever act. It will always be possible to
say that new legislation is not needed because the court in the future will make a
more appropriate interpretation. If the court is to have freedom to reinterpret
legislation, the result will be to relieve the legislature from pressure. . . .
In many controversial situations, legislative revision cannot be expected. It
often appears that the only hope lies with the courts. Yet the democratic process
seems to require that controversial changes should be made by the legislative body.
This is not only because there is a mechanism for holding legislators responsible. It
is also because courts are normally timid. Since they decide only the case before
them, it is difficult for them to compel any controversial reform unless they are
willing to hold to an unpopular doctrine over a sustained period of time. . . .

48
Twenty Illustrative Canons of Statutory Construction
Statutes are seldom models of clarity. Procedural complexities and practical
constraints impose substantial pressure on legislators, and this pressure often
produces both inadvertent drafting oversights and deliberate ambiguities. When
filling these gaps and addressing these ambiguities in specific cases, courts often
invoke general canons of construction. These canons are context-dependent rules of
thumb. That is, they are general principles, many of the common-sense variety,
designed to help courts draw sensible inferences about the meaning of language.
There are so many canons that there is sometimes conflict among them. A
famous 1950 article by Karl Llewellyn* attempted to demonstrate that most canons
can be countered by equally correct but opposing canons. The implication was that
the canons do not really constrain judges, because judges can effectively pick and
choose among them to achieve whatever results they desire. Critics of Llewellyns
argument respond that he exaggerated the problem by sometimes using statements
in court opinions that were not so generally accepted as to constitute real canons.
Are these canons helpful?

1. In all cases involving statutory construction, the starting point must be the
language employed by Congress and courts may assume that the legislative purpose
is expressed by the ordinary meaning of the words used. American Tobacco Co. v.
Patterson, 456 U.S. 63 (1982).

2. The plain meaning of legislation should be conclusive, except in the rare


cases in which the literal application of a statute will produce a result demonstrably
at odds with the intentions of the drafters. United States v. Ron Pair Enters., 489
U.S. 235 (1989).

3. If extreme hardship will result from a literal application of the words, this
may be taken as evidence that the legislature did not use them literally. Ballon v.
Kemp, 92 F.2d 556 (D.C. Cir. 1937).

4. It is not enough that objectionable or absurd consequences, which probably


were not within the contemplation of the framers, are produced by an act of
legislation. [In] such a case the remedy lies with the legislature and not with the
courts. Crooks v. Harrelson, 282 U.S. 55 (1930).

5. When the statutory language is clear on its face, and its words neither create
ambiguity nor lead to an entirely unreasonable interpretation, an inquiring court
must apply the statute as written, and need not consult other aids to statutory

*See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules of Cannons
About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950).

49
construction. However, when the statutory language chosen by Congress is unclear,
or capable of more than one reasonable interpretation, it is proper for a court to
consult extrinsic sources, such as legislative history, for guidance. Passa v.
Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004).

6. A courts task of statutory construction does not depend on evaluating


whether one side or another is unfairly affected by the plain language of the
section. Price v. Del. State Police Fed. Credit Union, 370 F.3d 362 (3d Cir. 2004).

7. The heading of a statute, or of a section thereof, may not be used to . . .


restrict the language of the statute itself. Bersio v. United States, 124 F.2d 310 (4th
Cir. 1941).

8. [A statutes] meaning ought to be gathered from its words as promulgated to


the public rather than from the expressions of legislators or their committees.
Marchese v. United States, 126 F.2d 671 (5th Cir. 1942).

9. Great weight must be accorded . . . to opinions expressed by members of


committees having the legislation in charge. United States v. Federal Power
Commission, 191 F.2d 796 (4th Cir. 1951).

10. Debates in Congress are not appropriate sources of information from which
to discover the meaning of the language in a statute. United States v. Freight
Assn., 166 U.S. 290 (1897).

11. Every part of a statute must be viewed in connection with the whole so as
to harmonize all parts, if practicable, and give sensible and intelligent effect to each,
for it is not to be presumed that the legislature intended any part of a statute to be
without a meaning. General Motors Acceptance Corp. v. Whisnant, 387 F.2d 774
(5th Cir. 1968).

12. Where there is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the priority of enactment.
Morton v. Mancari, 417 U.S. 535 (1974).

13. Where Congress explicitly enumerates certain exceptions to a general


prohibition, additional exceptions are not to be implied, in the absence of evidence of
a contrary legislative intent. Andrus v. Glover Constr. Co., 446 U.S. 608 (1980).

14. When an otherwise acceptable construction of a statute would raise serious


constitutional problems, courts may construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of Congress. This canon of
statutory construction, known as constitutional avoidance, is grounded in respect
for Congress, which courts assume legislate in the light of constitutional
limitations. Empire Healthchoice Assur., Inc. v. McVeigh, 396 F.3d 136 (2d Cir.
2005).

50
15. Any [statute], being in derogation of the common law, must be strictly
construed, for (n)o statute is to be construed as altering the common law, farther
than its words import. It is not to be construed as making any innovation
upon the common law which it does not fairly express. Robert C. Herd
& Co. v. Krawill Mach. Corp., 359 U.S. 297 (1959).

16. Remedial legislation should be construed broadly to effectuate its


purposes. Tcherpnin v. Knight, 389 U.S. 332 (1967).

17. Ambiguity concerning the ambit of criminal statutes should be resolved in


favor of lenity. Rewis v. United States, 401 U.S. 808 (1971).

18. If Congress enacted into law something different from what it intended,
then it should amend the statute to conform it to its intent. It is beyond our
province to rescue Congress from its drafting errors, and to provide for what we
might think . . . is the preferred result. Fulbright v. United States Dept of Educ.,
319 B.R. 650 (Bankr. D. Mont. 2005) quoting United States v. Granderson, 511 U.S.
39 (1994) (Kennedy, J. concurring).

19. The word shall . . . normally creates an obligation impervious to judicial


discretion. Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
35 (1998). The word may suggests . . . discretion. Rastelli v. Warden, Metro.
Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986). What about should?
20. When a court reviews an agencys formal interpretation of a statute that the
agency administers, the court does not impose its own construction of the statute,
but should defer to the agencys own interpretation and is limited to determining
only whether the agencys answer is based on a reasonable construction of the
statute. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843
(1984).
* * * * *
Consider Jonathan Macey and Geoffrey Miller, The Canons of Statutory
Construction and Judicial Preferences, 45 Vand. L. Rev. 647 (1992):
Whether or not Professor Llewellyn is correct that the canons are
indeterminate because they tend to cancel one another out, no "meta-canon"
exists to instruct judges when to invoke the canons in general and when to
use some alternative source of authority for deciding the case. In other
words, even if the canons were entirely outcome determinative in every
case, the existence of the canons as a source of judicial authority would not
constrain judges, because judges who did not like the outcome prescribed by
invoking the canons could choose to ignore the canons and invoke some
other source of authority, such as precedent, legislative history, efficiency,
or "fairness," as the basis for deciding the case a particular way.

51
115 N.Y. 506
Riggs et al.
v.
Palmer et al.

Court of Appeals of New York

Oct. 8, 1889.

EARL, J.
On the 13th day of August, 1880, Francis B. Palmer made his last will and
testament, in which he gave small legacies to his two daughters, Mrs. Riggs and
Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his
grandson, the defendant Elmer E. Palmer. . . . The testator, at the date of his will,
owned a farm, and considerable personal property. . . . At the date of
the will, and subsequently to the death of the testator, Elmer lived with him as a
member of his family, and at his death was 16 years old. He knew of the provisions
made in his favor in the will, and, that he might prevent his
grandfather from revoking such provisions, which he had manifested some intention
to do, and to obtain the speedy enjoyment and immediate possession of his property,
he willfully murdered him by poisoning him. He now claims the property, and the
sole question for our determination is, can he have it?
The defendants say that the testator is dead; that his will was made in due
form, and has been admitted to probate; and that therefore it must have effect
according to the letter of the law. It is quite true that statutes regulating the
making, proof, and effect of wills and the devolution of property, if literally
construed, . . . give this property to the murderer. The purpose of those statutes was
to enable testators to dispose of their estates to the objects of their bounty at death,
and to carry into effect their final wishes legally expressed; and in considering and
giving effect to them this purpose must be kept in view. It was the intention of the
law-makers that the donees in a will should have the property given to them. But it
never could have been their intention that a donee who murdered the testator to
make the will operative should have any benefit under it. If such a case had been
present to their minds, and it had been supposed necessary to make some provision
of law to meet it, it cannot be doubted that they would have provided for it.
It is a familiar canon of construction that a thing which is within the
intention of the makers of a statute is as much within the statute as if it were
within the letter; and a thing which is within the letter of the statute is not within
the statute unless it be within the intention of the makers. The writers of laws do
not always express their intention perfectly, but either exceed it or fall short of it, so

52
that judges are to collect it from probable or rational conjectures only, and this is
called rational interpretation; and Rutherford, in his Institutes, (page 420,) says:
Where we make use of rational interpretation, sometimes we restrain the [words of
the statute] so as to take in less, and sometimes we extend or enlarge
its meaning so as to take in more, than its words express. Such a construction
ought to be put upon a statute as will best answer the intention which the makers
had in view. . . .
What could be more unreasonable than to suppose that it was the legislative
intention in the general laws passed for the orderly, peaceable, and just devolution
of property that they should have operation in favor of one who murdered his
ancestor that he might speedily come into the possession of his estate? Such an
intention is inconceivable. We need not, therefore, be much troubled by the general
language contained in the laws. Besides, all laws . . . may be controlled in their
operation and effect by general, fundamental maxims of the common law. No one
shall be permitted to profit by his own fraud, or to take advantage of his own wrong,
or to found any claim upon his own iniquity, or to acquire property by his own
crime. These maxims are dictated by public policy, have their foundation in
universal law administered in all civilized countries, and have nowhere
been superseded by statutes. . . .
. . . The will spoke and became operative at the death of the testator. He caused
that death, and thus by his crime made it speak and have operation. Shall it speak
and operate in his favor? If he had met the testator, and taken his property by
force, he would have had no title to it. Shall he acquire
title by murdering him? If he had gone to the testator's house, and by force
compelled him, or by fraud or undue influence had induced him, to will him his
property, the law would not allow him to hold it. But can he give effect and
operation to a will by murder, and yet take the property? To answer these questions
in the affirmative it seems to me would be a reproach to the jurisprudence of our
state, and an offense against public policy. . . .
The facts found entitled the plaintiffs to the relief they seek. [B]y reason of the
crime of murder committed upon the grandfather Elmer is deprived of any interest
in the estate left by him; the plaintiffs are the true owners of the real and personal
estate left by the testator. . . .
GRAY, J., (dissenting.)
This appeal presents an extraordinary state of facts, and the case, in respect of
them, I believe, is without precedent in this state. The respondent, a lad of 16 years
of age, being aware of the provisions in his grandfather's will, which constituted
him the residuary legatee of the testator's estate, caused his death by poison, in
1882. For this crime he was tried, and was convicted of murder in the second
degree, and at the time of the commencement of this action he was serving out his
sentence in the state reformatory. This action was brought by two of the children of

53
the testator for the purpose of having those provisions of the will in the respondent's
favor canceled and annulled. The appellants' argument for a reversal of the
judgment, which dismissed their complaint, is that the respondent unlawfully
prevented a revocation of the existing will, or a new will from being made, by his
crime; and that he terminated the enjoyment by the testator of his property, and
effected his own succession to it, by the same crime. They say that to permit the
respondent to take the property willed to him would be to permit him to take
advantage of his own wrong. To sustain their position the appellants' counsel has
submitted an able and elaborate brief, and, if I believed that the decision of the
question could be effected by considerations of an equitable nature, I should not
hesitate to assent to views which commend themselves to the conscience. But the
matter does not lie within the domain of conscience. We are bound by the rigid rules
of law, which have been established by the legislature, and within the limits of
which the determination of this question is confined. The question we
are dealing with is whether a testamentary disposition can be altered, or a will
revoked, after the testator's death, through an appeal to the courts, when the
legislature has by its enactments prescribed exactly when and how wills may be
made, altered, and revoked, and apparently, as it seems to me, when they have been
fully complied with, has left no room for the exercise of an equitable jurisdiction by
courts over such matters. Modern jurisprudence, in recognizing the right of the
individual, under more or less restrictions, to dispose of his property after his death,
subjects it to legislative control, both as to extent and as to mode of exercise. . . .
The statutes of this state have prescribed various ways in which a will may be
altered or revoked; but the very provision defining the modes of alteration and
revocation implies a prohibition of alteration or revocation in any other way. The
words of the section of the statute are: No will in writing, except in the cases
hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise,
etc. Where, therefore, none of the cases mentioned are met by the facts, and the
revocation is not in the way described in the section, the will of the testator is
unalterable. I think that a valid will must continue as a will always, unless revoked
in the manner provided by the statutes. . . .
[Prior decisions] seem to me to be much in point. . . . In 1854, Surrogate
BRADFORD, whose opinions are entitled to the highest consideration, decided the
case of Leaycraft v. Simmons, 3 Bradf. Sur. 35. In that case the testator, a man of
89 years of age, desired to make a codicil to his will, in order to enlarge the
provisions for his daughter. His son, having the custody of the instrument, and the
one to be prejudiced by the change, refused to produce the will at testator's request,
for the purpose of alteration. The learned surrogate . . . says: Our statute has
undertaken to prescribe the mode in which wills can be revoked. This is the law by
which I am governed in passing upon questions touching the revocation of wills. The
whole of this subject is now regulated by statute; and a mere intention to revoke,
however well authenticated, or however defeated, is not sufficient. And he held
that the will must be admitted to probate. . . .

54
I cannot find any support for the argument that the respondent's succession to
the property should be avoided because of his criminal act, when the laws are silent.
Public policy does not demand it; for the demands of public policy are satisfied by
the proper execution of the laws and the punishment of the crime. There has been
no convention between the testator and his legatee nor is there any such contractual
element, in such a disposition of property by a testator, as to impose or imply
conditions in the legatee. The appellants' argument practically amounts to this:
that, as the legatee has been guilty of a crime, by the commission of which he is
placed in a position to sooner receive the benefits of the testamentary provision, his
rights to the property should be forfeited, and he should be divested of his estate. To
allow their argument to prevail, would involve the diversion by the court of the
testator's estate into the hands of persons whom, possibly enough, for all we know,
the testator might not have chosen or desired as its recipients.
Practically the court is asked to make another will for the testator. The laws do not
warrant this judicial action. . . . But, more than this, to concede the appellants'
views would involve the imposition of an additional punishment or penalty upon the
respondent. What power or warrant have the courts to add to the respondent's
penalties by depriving him of property? The law has punished him for his crime,
and we may not say that it was an insufficient punishment. In the trial and
punishment of the respondent the law has vindicated itself for the
outrage which he committed, and further judicial utterance upon the subject of
punishment or deprivation of rights is barred. We may not, in the language of the
court in People v. Thornton, 25 Hun, 456, enhance the pains, penalties, and
forfeitures provided by law for the punishment of crime. The judgment should be
affirmed, with costs.
DANFORTH, J., concurs.

55
Church of The Holy Trinity v. United States
143 U. S. 457 (1892)

MR. JUSTICE BREWER delivered the opinion of the Court.


Plaintiff in error is a corporation duly organized and incorporated as a religious
society under the laws of the State of New York. E. Walpole Warren was, prior to
September, 1887, an alien residing in England. In that month the plaintiff in error
made a contract with him by which he was to remove to the City of New York and
enter into its service as rector and pastor, and in pursuance of such contract,
Warren did so remove and enter upon such service. It is claimed by the United
States that this contract on the part of the plaintiff in error was forbidden by 23
Stat. 332, c. 164, and an action was commenced to recover the penalty prescribed by
that act. The circuit court held that the contract was within the prohibition of the
statute, and rendered judgment accordingly, 36 F. 303, and the single question
presented for our determination is whether it erred in that conclusion.
The first section describes the act forbidden, and is in these words:
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, that from and after the passage of this act it
shall be unlawful for any person, company, partnership, or corporation, in any
manner whatsoever, to prepay the transportation, or in any way assist or
encourage the importation or migration, of any alien or aliens, any foreigner or
foreigners, into the United States, its territories, or the District of Columbia under
contract or agreement, . . . express or implied, made previous to the importation or
migration of such alien or aliens, foreigner or foreigners, to perform labor or service
of any kind in the United States, its territories, or the District of Columbia.
It must be conceded that the act of the corporation is within the letter of this
section, for the relation of rector to his church is one of service, and implies labor on
the one side with compensation on the other. Not only are the general words labor
and service both used, but also, as it were to guard against any narrow
interpretation and emphasize a breadth of meaning, to them is added of any kind,
and further, as noticed by the circuit judge in his opinion, the fifth section, which
makes specific exceptions, among them professional actors, artists, lecturers,
singers, and domestic servants, strengthens the idea that every other kind of labor
and service was intended to be reached by the first section.
While there is great force to this reasoning, we cannot think Congress intended
to denounce with penalties a transaction like that in the present case. It is a
familiar rule that a thing may be within the letter of the statute and yet not within
the statute because not within its spirit nor within the intention of its makers. This
has been often asserted, and the reports are full of cases illustrating its application.
This is not the substitution of the will of the judge for that of the legislator, for
frequently words of general meaning are used in a statute, words broad enough to
include an act in question, and yet a consideration of the whole legislation, or of the
circumstances surrounding its enactment, or of the absurd results which follow

56
from giving such broad meaning to the words, makes it unreasonable to believe that
the legislator intended to include the particular act. . . .
In United States v. Kirby, 7 Wall. 482, 74 U. S. 486, the defendants were
indicted for the violation of an act of Congress providing that if any person shall
knowingly and willfully obstruct or retard the passage of the mail, or of any driver
or carrier, or of any horse or carriage carrying the same, he shall, upon conviction,
for every such offense, pay a fine not exceeding one hundred dollars.
The specific charge was that the defendants knowingly and willfully retarded
the passage of one Farris, a carrier of the mail, while engaged in the performance of
his duty, and also in like manner retarded the steamboat General Buell, at that
time engaged in carrying the mail. To this indictment the defendants pleaded . . .
that Farris had been indicted for murder by a court of competent authority in
Kentucky; that a bench-warrant had been issued and placed in the hands of the
defendant Kirby, the sheriff of the county, commanding him to arrest Farris and
bring him before the court to answer to the indictment, and that, in obedience to
this warrant, he and the other defendants, as his posse, entered upon the steamboat
General Buell and arrested Farris, and used only such force as was necessary to
accomplish that arrest. The question as to the sufficiency of this plea was certified
to this Court, and it was held that the arrest of Farris upon the warrant from the
state court was not an obstruction of the mail or the retarding of the passage of a
carrier of the mail within the meaning of the act. In its opinion, the Court says:
All laws should receive a sensible construction. General terms should be so
limited in their application as not to lead to injustice, oppression, or an absurd
consequence. It will always therefore be presumed that the legislature intended
exceptions to its language which would avoid results of this character. The reason
of the law in such cases should prevail over its letter. The common sense of man
approves the judgment mentioned by Puffendorf, that the Bolognian law which
enacted 'that whoever drew blood in the streets should be punished with the
utmost severity' did not extend to the surgeon who opened the vein of a person that
fell down in the street in a fit. The same common sense accepts the ruling, cited by
Plowden, that the statute of 1st Edw. II which enacts that a prisoner who breaks
prison shall be guilty of felony, does not extend to a prisoner who breaks out when
the prison is on fire, for he is not to be hanged because he would not stay to be
burnt. And we think that a like common sense will sanction the ruling we make,
that the act of Congress which punishes the obstruction or retarding of the passage
of the mail, or of its carrier, does not apply to a case of temporary detention of the
mail caused by the arrest of the carrier upon an indictment for murder.
. . . Among other things which may be considered in determining the intent of
the legislature is the title of the act. We do not mean that it may be used to add to
or take from the body of the statute, but it may help to interpret its meaning. In the
case of United States v. Fisher, 2 Cranch 358, 6 U. S. 386, Chief Justice Marshall
said:
On the influence which the title ought to have in construing the enacting
clauses much has been said, and yet it is not easy to discern the point of difference

57
between the opposing counsel in this respect. Neither party contends that the title
of an act can control plain words in the body of the statute, and neither denies that,
taken with other parts, it may assist in removing ambiguities. Where the intent is
plain, nothing is left to construction. Where the mind labors to discover the design
of the legislature, it seizes everything from which aid can be derived, and in such
case the title claims a degree of notice, and will have its due share of consideration.
. . . It will be seen that words as general as those used in the first section of this
act were by that decision limited, and the intent of Congress with respect to the act
was gathered partially at least, from its title. Now the title of this act is An act to
prohibit the importation and migration of foreigners and aliens under contract or
agreement to perform labor in the United States, its territories, and the District of
Columbia.
Obviously the thought expressed in this reaches only to the work of the manual
laborer, as distinguished from that of the professional man. No one reading such a
title would suppose that Congress had in its mind any purpose of staying the
coming into this country of ministers of the gospel, or, indeed, of any class whose
toil is that of the brain. The common understanding of the terms labor and
laborers does not include preaching and preachers, and it is to be assumed that
words and phrases are used in their ordinary meaning. So whatever of light is
thrown upon the statute by the language of the title indicates an exclusion from its
penal provisions of all contracts for the employment of ministers, rectors, and
pastors.
Again, another guide to the meaning of a statute is found in the evil which it is
designed to remedy, and for this the court properly looks at contemporaneous
events, the situation as it existed, and as it was pressed upon the attention of the
legislative body. The situation which called for this statute was briefly but fully
stated by Mr. Justice Brown when, as district judge, he decided the case of United
States v. Craig, 28 F. 795, 798:
The motives and history of the act are matters of common knowledge. It had
become the practice for large capitalists in this country to contract with their
agents abroad for the shipment of great numbers of an ignorant and servile class of
foreign laborers, under contracts by which the employer agreed, upon the one
hand, to prepay their passage, while, upon the other hand, the laborers agreed to
work after their arrival for a certain time at a low rate of wages. The effect of this
was to break down the labor market and to reduce other laborers engaged in like
occupations to the level of the assisted immigrant. The evil finally became so
flagrant that an appeal was made to Congress for relief by the passage of the act in
question, the design of which was to raise the standard of foreign immigrants and
to discountenance the migration of those who had not sufficient means in their own
hands, or those of their friends, to pay their passage.
It appears also from the petitions and in the testimony presented before the
committees of Congress that it was this cheap, unskilled labor which was making
the trouble, and the influx of which Congress sought to prevent. It was never
suggested that we had in this country a surplus of brain toilers, and least of all that

58
the market for the services of Christian ministers was depressed by foreign
competition. Those were matters to which the attention of Congress or of the people
was not directed. So far, then, as the evil which was sought to be remedied
interprets the statute, it also guides to an exclusion of this contract from the
penalties of the act.
A singular circumstance throwing light upon the intent of Congress is found in
this extract from the report of the House committee [that recommended passage of
this legislation]:
[This law] seeks to restrain and prohibit the immigration or importation of
laborers who would have never seen our shores but for the inducements and
allurements of men whose only object is to obtain labor at the lowest possible rate,
regardless of the social and material wellbeing of our own citizens, and regardless
of the evil consequences which result to American laborers from such immigration.
This class of immigrants care nothing about our institutions, and in many
instances never even heard of them. They are men whose passage is paid by the
importers. They come here under contract to labor for a certain number of years.
They are ignorant of our social condition, and, that they may remain so, they are
isolated and prevented from coming into contact with Americans. They are
generally from the lowest social stratum, and live upon the coarsest food, and in
hovels of a character before unknown to American workmen. They, as a rule, do not
become citizens, and are certainly not a desirable acquisition to the body politic.
The inevitable tendency of their presence among us is to degrade American labor
and to reduce it to the level of the imported pauper labor.
We find, therefore, that the title of the act, the evil which was intended to be
remedied, the circumstances surrounding the appeal to Congress, the reports of the
committee of each house, all concur in affirming that the intent of Congress was
simply to stay the influx of this cheap unskilled labor.
But, beyond all these matters, no purpose of action against religion can be
imputed to any legislation, state or national, because this is a religious people. This
is historically true. From the discovery of this continent to the present hour, there is
a single voice making this affirmation. . . . The first colonial grant, that made to Sir
Walter Raleigh in 1584, was from Elizabeth, by the grace of God, of England,
Fraunce and Ireland, Queene, defender of the faith, etc., and the grant authorizing
him to enact statutes of the government of the proposed colony provided that they
be not against the true Christian faith nowe professed in the Church of England.
The first charter of Virginia, granted by King James I in 1606, after reciting the
application of certain parties for a charter, commenced the grant in these words:
We, greatly commending, and graciously accepting of, their Desires for the
Furtherance of so noble a Work, which may, by the Providence of Almighty God,
hereafter tend to the Glory of his Divine Majesty, in propagating of Christian
Religion to such People, as yet live in Darkness and miserable Ignorance of the
true Knowledge and Worship of God, and may in time bring the Infidels and
Savages, living in those parts, to human Civility, and to a settled and quiet

59
government; DO, by these our Letters-Patents, graciously accept of, and agree to,
their humble and well intended Desires.
[Justice Brewer then invoked similar language from the Mayflower Compact,
the Fundamental Orders of Connecticut, the charter granted to William Penn to
establish the province of Pennsylvania in 1701, and the Declaration of
Independence, which recognizes that all men are . . . endowed by their Creator
with certain unalienable Rights, appeals to the Supreme Judge of the world for
the rectitude of our intentions, and expressly relies on the Protection of Divine
Providence. He then invoked language in the constitutions of the various states
which in one way or another express a profound reverence for religion, and an
assumption that its influence in all human affairs is essential to the wellbeing of
the community. All of these sources, Justice Brewer observed, affirm and reaffirm
that this is a religious nation. He then continued:]
Suppose, in the Congress that passed this act, some member had offered a bill
which in terms declared that if any Roman Catholic church in this country should
contract with Cardinal Manning to come to this country and enter into its service as
pastor and priest, or any Episcopal church should enter into a like contract with
Canon Farrar, or any Baptist church should make similar arrangements with Rev.
Mr. Spurgeon, or any Jewish synagogue with some eminent rabbi, such contract
should be adjudged unlawful and void, and the church making it be subject to
prosecution and punishment. Can it be believed that it would have received a
minute of approving thought or a single vote? Yet it is contended that such was, in
effect, the meaning of this statute. The construction invoked cannot be accepted as
correct. It is a case where there was presented a definite evil, in view of which the
legislature used general terms with the purpose of reaching all phases of that evil,
and thereafter, unexpectedly, it is developed that the general language thus
employed is broad enough to reach cases and acts which the whole history and life
of the country affirm could not have been intentionally legislated against. It is the
duty of the courts under those circumstances to say that, however broad the
language of the statute may be, the act, although within the letter, is not within the
intention of the legislature, and therefore cannot be within the statute.
The judgment will be reversed, and the case remanded for further proceedings
in accordance with this opinion.

60
Caminetti v. United States
242 U.S. 470
Decided January 15, 1917.

[BACKGROUND: America had a very libertarian attitude toward prostitution in


the nineteenth century. Brothels were tolerated and openly available within
designated vice districts, and every city of even modest size had such a district. In
the early years of the twentieth century, however, a moral panic developed in
America. People came to accept as true the myth that women were regularly being
forced into prostitution, with large scale organizations mostly, controlled by
foreigners, moving these women around the country. Lurid stories spread of young
girls arriving at city train stations, only to be lured away by cadets who would
befriend them and then drug them. The young women would wake up the next
morning and find themselves raped and prisoners in a brothel. The term "white
slave" came from this scenario. Even women who were well ensconced in the cities
were thought to be in danger, and the media spread accounts of girls numbed by
poison darts on the subway or shot at them while walking, then kidnapped and
forced into brothels. Reckless statements by public officials and the media fanned
the growing hysteria.
[The federal response was the White Slave Traffic Act of 1910 (36 Stat. 825),
commonly called the Mann Act because of its congressional sponsorship by
Representative James R. Mann of Illinois. The legislative committee reports and the
discussion on the floor of the Senate and House clearly indicate that the chief
purpose of the act was to make it a crime to coerce transportation of unwilling
women. Congress, however, used broader language. The statute made it a crime to
transport or cause to be transported, or aid or assist in obtaining transportation for
or to persuade, induce, entice, or coerce a woman to travel in interstate or foreign
commerce, . . . if the travel was for the purpose of prostitution or debauchery, or for
any other immoral purpose . . . whether with or without her consent.* This
language went far beyond coerced prostitution and clearly targeted those, both
pimps and madams, who moved quite willing prostitutes from state to state. But
what about the vague language any other immoral purpose? David J. Langum,
Crossing Over the Line: Legislating Morality and the Mann Act (1994).]
Mr. Justice Day delivered the opinion of the court:
[In this case] there was a conviction and sentence for violation of the so-called
White Slave Traffic Act of June 25, 1910 ( 36 Stat. at L. 825, chap. 395, Comp. Stat.

* One of the Act's unintended consequences was blackmail. Scheming women enticed men to cross a
state line with them for a romp in a hotel, only to then threaten to turn them in to the authorities for
violating the Mann Act.

61
1913, 8813)* . . . The indictment [charged petitioner] with transporting and causing
to be transported, and aiding and assisting in obtaining transportation for a certain
woman from Sacramento, California, to Reno, Nevada, in interstate commerce, for
the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid
woman should be and become his mistress. [Defendant] was found guilty and
sentenced to imprisonment for eighteen months and to pay a fine of $1,500. Upon
writ of error to the United States circuit court of appeals for the ninth circuit, that
judgment was affirmed. 136 C. C. A. 147, 220 Fed. 545. . . .
It is contended that the act of Congress is intended to reach only
commercialized vice, or the traffic in women for gain, and that the conduct for
which the [petitioner was] indicted and convicted, however reprehensible in morals,
is not within the purview of the statute when properly construed in the light of its
history and the purposes intended to be accomplished by its enactment. [In this
case,] it was neither charged or proved that the transportation was for gain or for
the purpose of furnishing women for prostitution for hire, and it is insisted that,
such being the case, the acts charged and proved, upon which conviction was had,
do not come within the statute.
It is elementary that the meaning of a statute must, in the first instance, be
sought in the language in which the act is framed, and if that is plain, and if the law
is within the constitutional authority of the lawmaking body which passed it, the
sole function of the courts is to enforce it according to its terms. . . .
Where the language is plain and admits of no more than one meaning, the duty
of interpretation does not arise, and the rules which are to aid doubtful meanings
need no discussion. There is no ambiguity in the terms of this act. It is specifically
made an offense to knowingly transport or cause to be transported, etc., in
interstate commerce, any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose, or with the intent and purpose to
induce any such woman or girl to become a prostitute or to give herself up to
debauchery, or to engage in any other immoral practice.
Statutory words are uniformly presumed, unless the contrary appears, to be
used in their ordinary and usual sense, and with the meaning commonly attributed
to them. To cause a woman or girl to be transported for the purposes of debauchery,
and for an immoral purpose, to wit, becoming a concubine or mistress, for which

*
Sec. 2. That any person who shall knowingly transport or cause to be transported, or aid or assist
in obtaining transportation for, or in transporting, in interstate or foreign commerce, . . . any woman
or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the
intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give
herself up to debauchery, or to engage in any other immoral practice; . . . shall be deemed guilty of a
felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars,
or by imprisonment of not more than five years, or by both such fine and imprisonment, in the
discretion of the court.

62
Caminetti [was] convicted, . . . would seem by the very statement of the facts to
embrace transportation for purposes denounced by the act, and therefore fairly
within its meaning.
While such immoral purpose would be more culpable in morals and attributed
to baser motives if accompanied with the expectation of pecuniary gain, such
considerations do not prevent the lesser offense against morals of furnishing
transportation in order that a woman may be debauched, or become a mistress,
from being the execution of purposes within the meaning of this law. To say the
contrary would shock the common understanding of what constitutes an immoral
purpose when those terms are applied, as here, to sexual relations.
. . . But it is contended that though the words are so plain that they cannot be
misapprehended when given their usual and ordinary interpretation, and although
the sections in which they appear do not in terms limit the offense defined and
punished to acts of commercialized vice, or the furnishing or procuring of
transportation of women for debauchery, prostitution, or immoral practices for hire,
such limited purpose is to be attributed to Congress and engrafted upon the act in
view of the language of 8* and the report which accompanied the law upon its
introduction into and subsequent passage by the House of Representatives.
In this connection, it may be observed that while the title of an act cannot
overcome the meaning of plain and unambiguous words used in its body, the title of
this act embraces the regulation of interstate commerce by prohibiting the
transportation therein for immoral purposes of women and girls, and for other
purposes. It is true that 8 of the act provides that it shall be known and referred
to as the White Slave Traffic Act, and the report accompanying the introduction of
the same into the House of Representatives set forth the fact that a material portion
of the legislation suggested was to meet conditions which had arisen in the past few
years, and that the legislation was needed to put a stop to a villainous interstate
and international traffic in women and girls. Still, the name given to an act by way
of designation or description, or the report which accompanies it, cannot change the
plain import of its words. If the words are plain, they give meaning to the act, and it
is neither the duty nor the privilege of the courts to enter speculative fields in
search of a different meaning.
Reports to Congress accompanying the introduction of proposed laws may aid
the courts in reaching the true meaning of the legislature in cases of doubtful
interpretation. But, as we have already said, and it has been so often affirmed as to
become a recognized rule, when words are free from doubt they must be taken as
the final expression of the legislative intent, and are not to be added to or
subtracted from by considerations drawn from titles or designating names or
reports accompanying their introduction, or from any extraneous source. In other

* Sec. 8. This Act shall be known and referred to as the White-slave traffic Act.

63
words, the language being plain, and not leading to absurd or wholly impracticable
consequences, it is the sole evidence of the ultimate legislative intent.
The fact, if it be so, that the act as it is written opens the door to blackmailing
operations upon a large scale, is no reason why the courts should refuse to enforce it
according to its terms, if within the constitutional authority of Congress. Such
considerations are more appropriately addressed to the legislative branch of the
government, which alone had authority to enact and may, if it sees fit, amend the
law.
It is further insisted that a different construction of the act than is to be
gathered from reading it is necessary in order to save it from constitutional
objections, fatal to its validity. The act has its constitutional sanction in the power
of Congress over interstate commerce. The broad character of that authority was
declared once for all in the judgment pronounced by this court, speaking by Chief
Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, and has since been
steadily adhered to and applied to a variety of new conditions as they have arisen.
It may be conceded, for the purpose of the argument, that Congress has no
power to punish one who travels in interstate commerce merely because he has the
intention of committing an illegal or immoral act at the conclusion of the journey.
But this act is not concerned with such instances. It seeks to reach and punish the
movement in interstate commerce of women and girls with a view to the
accomplishment of the unlawful purposes prohibited.
The transportation of passengers in interstate commerce, it has long been
settled, is within the regulatory power of Congress, under the commerce clause of
the Constitution, and the authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been frequently sustained, and
is no longer open to question.
The judgment . . . is affirmed.
Mr. Justice McReynolds took no part in the consideration or decision of this
case.
Mr. Justice McKenna, dissenting:
Undoubtedly, in the investigation of the meaning of a statute we resort first to
its words, and, when clear, they are decisive. The principle has attractive and
seemingly disposing simplicity, but that it is not easy of application, or, at least,
encounters other principles, many cases demonstrate. The words of a statute may
be uncertain in their signification or in their application. If the words be ambiguous,
the problem they present is to be resolved by their definition; the subject matter
and the lexicons become our guides. But here, even, we are not exempt from putting
ourselves in the place of the legislators. If the words be clear in meaning, but the
objects to which they are addressed be uncertain, the problem then is to determine
the uncertainty. And for this a realization of conditions that provoked the statute
must inform our judgment. Let us apply these observations to the present case.

64
The transportation which is made unlawful is of a woman or girl to become a
prostitute or to give herself up to debauchery, or to engage in any other immoral
practice. Our present concern is with the words any other immoral practice,
which, it is asserted, have a special office. The words are clear enough as general
descriptions; they fail in particular designation; they are class words, not
specifications. Are they controlled by those which precede them? If not, they are
broader in generalization and include those that precede them, making them
unnecessary and confusing. To what conclusion would this lead us? Immoral is a
very comprehensive word. It means a dereliction of morals. In such sense it covers
every form of vice, every form of conduct that is contrary to good order. It will
hardly be contended that in this sweeping sense it is used in the statute. But, if not
used in such sense, to what is it limited and by what limited? If it be admitted that
it is limited at all, that ends the imperative effect assigned to it in the opinion of the
court. But not insisting quite on that, we ask again, By what is it limited? By its
context, necessarily, and the purpose of the statute.
For the context I must refer to the statute; of the purpose of the statute
Congress itself has given us illumination. It devotes a section to the declaration that
the act shall be known and referred to as the White Slave Traffic Act. And its
prominence gives it prevalence in the construction of the statute. It cannot be
pushed aside or subordinated by indefinite words in other sentences, limited even
there by the context. It is a peremptory rule of construction that all parts of a
statute must be taken into account in ascertaining its meaning, and it cannot be
said that 8 has no object. Even if it gives only a title to the act, it has especial
weight. But it gives more than a title; it makes distinctive the purpose of the
statute. The designation white slave traffic has the sufficiency of an axiom. If
apprehended, there is no uncertainty as to the conduct it describes. It is
commercialized vice, immoralities having a mercenary purpose, and this is
confirmed by other circumstances.
The author of the bill was Mr. Mann, and in reporting it from the House
committee on interstate and foreign commerce he declared for the committee that it
was not the purpose of the bill to interfere with or usurp in any way the police
power of the states, and further, that it was not the intention of the bill to regulate
prostitution or the places where prostitution or immorality was practiced, which
were said to be matters wholly within the power of the states, and over which the
Federal government had no jurisdiction. And further explaining the bill, it was said
that the sections of the act had been so drawn that they are limited to the cases in
which there is an act of transportation in interstate commerce of women for the
purposes of prostitution. And again:
The White Slave Trade. A material portion of the legislation suggested
and proposed is necessary to meet conditions which have arisen within the
past few years. The legislation is needed to put a stop to a villainous
interstate and international traffic in women and girls. The legislation is
not needed or intended as an aid to the states in the exercise of their police

65
powers in the suppression or regulation of immorality in general. It does not
attempt to regulate the practice of voluntary prostitution, but aims solely to
prevent panderers and procurers from compelling thousands of women and
girls against their will and desire to enter and continue in a life of
prostitution. Cong. Rec. vol. 50, pp. 3368, 3370.
In other words, it is vice as a business at which the law is directed, using
interstate commerce as a facility to procure or distribute its victims. . . .
Of course, [the] declarations of the report of the committee on interstate
commerce of the House [are not] conclusive of the meaning of the law, but they are
highly persuasive. . . . The report was by the committee charged with the duty of
investigating the necessity for the act, and to inform the House of the results of that
investigation, both of evil and remedy. The report of the committee has, therefore, a
higher quality than debates on the floor of the House. The representations of the
latter may indeed be ascribed to the exaggerations of advocacy or opposition. The
report of a committee is the execution of a duty and has the sanction of duty. There
is a presumption, therefore, that the measure it recommends has the purpose it
declares and will accomplish it as declared. This being the purpose, the words of the
statute should be construed to execute it, and they may be so construed even if their
literal meaning be otherwise. See Church of the Holy Trinity v. United States, it is
a familiar rule that a thing may be within the letter of the statute and yet not
within the statute, because not within its spirit, nor within the intention of its
makers. . . .
[The] principle is the simple one that the words of a statute will be extended or
restricted to execute its purpose. [This principle] rescues legislation from absurdity.
. . . It is the dictate of common sense. Language, even when most masterfully used,
may miss sufficiency and give room for dispute. Is it a wonder, therefore, that when
used in the haste of legislation, in view of conditions perhaps only partly seen or not
seen at all, the consequences, it may be, beyond present foresight, it often becomes
necessary to apply the rule? And it is a rule of prudence and highest sense. It
rescues from crudities, excesses, and deficiencies, making legislation adequate to its
special purpose, rendering unnecessary repeated qualifications, and leaving the
simple and best exposition of a law the mischief it was intended to redress. Nor is
this judicial legislation. It is seeking and enforcing the true sense of a law
notwithstanding its imperfection or generality of expression.
There is much in the present case to tempt to a violation of the rule. Any
measure that protects the purity of women from . . . enticement to degradation finds
an instant advocate in our best emotions; but the judicial function cannot yield to
emotion -- it must, with poise of mind, consider and decide. It should not shut its
eyes to the facts of the world and assume not to know what everybody else knows.
And everybody knows that there is a difference between the occasional immoralities
of men and women and that systematized and mercenary immorality epitomized in
the statute's graphic phrase white slave traffic. And it was such immorality that
was in the legislative mind, and not the other. The other is occasional, not habitual,

66
[and] does not offensively obtrude upon public notice. Interstate commerce is not its
instrument as it is of the other, nor is prostitution its object or its end. It may,
indeed, in instances, find a convenience in crossing state lines, but this is its
accident, not its aid.
There is danger in extending a statute beyond its purpose, even if justified by a
strict adherence to its words. The purpose is studied, all effects measured, not left
at random, -- one evil practice prevented, opportunity given to another. The present
case warns against ascribing such improvidence to the statute under review.
Blackmailers of both sexes have arisen, using the terrors of the construction now
sanctioned by this court as a help -- indeed, the means-for their brigandage. The
result is grave and should give us pause. It certainly will not be denied that legal
authority justifies the rejection of a construction which leads to mischievous
consequences, if the statute be susceptible of another construction. . . .
For these reasons I dissent from the opinion and judgment of the court,
expressing no opinion of the other propositions in the cases.
I am authorized to say that the CHIEF JUSTICE and Mr. Justice Clarke concur
in this dissent.
* * * * *

Consider David J. Langum, Crossing Over the Line: Legislating Morality and the
Mann Act (1994):
By the end of the 1920s, America had had enough of its morals crusade.
Prosecutors in many federal districts reported to Washington that juries
would simply not convict in noncommercial cases unless there were
significant special factors. The government shifted its focus to violations of
the Mann Act involving prostitutes or juveniles. Other noncommercial
prosecutions were limited to select types. For Mann Act prosecutions the
government now targeted its political opponents (actor Charlie Chaplin,
who held radical political views, was prosecuted under the Mann Act as
were many German sympathizers during World War II), black men (such as
boxer Jack Johnson and singer Chuck Berry) who dared to have sexual
relationships with white women, gangsters (the best known is Machine Gun
McGauran, a hit man for Al Capone), and others who were offensive to the
federal government (such as Ku Klux Klan officials).
The Sexual Revolution of the 1960s forced the redefinition of immoral
purpose, and many activities denounced as an immoral purpose in the
1920s, such as strip dancing, cohabitation of an unmarried couple, or even
casual sex, were declared by courts as not covered by the act. Congress was
called on to amend the statute. It was difficult, however, for federal
politicians to be seen as supporting immoral purposes by actually repealing
the act. In 1978 the statute was amended to replace the vague immoral
purpose language with prohibited sexual conduct.. . .

67
Finally, in 1986 the Mann Act was significantly amended, making the
entire statute gender neutral. In other words, under the act the
transportation of any person was prohibited, as was any purpose to
engage in prostitution, or in any sexual activity for which any person can be
charged with a criminal offense. The 1986 amendment essentially left it to
the law of the state into which any person is transported to determine if a
federal violation has occurred. Because the states have decriminalized
fornication, cohabitation, adultery, and sodomy, the Mann Act is now
effectively limited to interstate transportation for prostitution or forced sex.

68
United Steelworkers of America v. Weber
443 U.S. 193 (1979)

MR. JUSTICE BRENNAN delivered the opinion of the Court. . . .


I
In 1974, petitioner United Steelworkers of America (USWA) and petitioner
Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collective-
bargaining agreement covering terms and conditions of employment at 15 Kaiser
plants. The agreement contained, inter alia, an affirmative action plan designed to
eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white
craftwork forces. Black craft-hiring goals were set for each Kaiser plant equal to the
percentage of blacks in the respective local labor forces. To enable plants to meet
these goals, on-the-job training programs were established to teach unskilled
production workers -- black and white -- the skills necessary to become craft-
workers. The plan reserved for black employees 50% of the openings in these newly
created in-plant training programs.
This case arose from the operation of the plan at Kaiser's plant in Gramercy,
La. Until 1974, Kaiser hired as craft-workers for that plant only persons who had
had prior craft experience. Because blacks had long been excluded from craft
unions, few were able to present such credentials. As a consequence, prior to 1974
only 1.83% (5 out of 273) of the skilled craft-workers at the Gramercy plant were
black, even though the work force in the Gramercy area was approximately 39%
black.
Pursuant to the national agreement Kaiser altered its craft hiring practice in
the Gramercy plant. Rather than hiring already trained outsiders, Kaiser
established a training program to train its production workers to fill craft openings.
Selection of craft trainees was made on the basis of seniority, with the proviso that
at least 50% of the new trainees were to be black until the percentage of black
skilled craft-workers in the Gramercy plant approximated the percentage of blacks
in the local labor force.
During 1974, the first year of the operation of the Kaiser-USWA affirmative
action plan, 13 craft trainees were selected from Gramercys production work force.
Of these, seven were black and six white. The most senior black selected into the
program had less seniority than several white production workers whose bids for
admission were rejected. Thereafter one of those white production workers,
respondent Brain Weber (hereafter respondent), instituted this class action in the
United States District Court for the Eastern District of Louisiana.
The complaint alleged that the filling of craft trainee positions at the Gramercy
plant pursuant to the affirmative action program had resulted in junior black
employees receiving training in preference to senior white employees, thus
discriminating against respondent and other similarly situated white employees in

69
violation of 703 (a) 22 and (d) 33 of Title VII [The Civil Rights Act of 1964.] The
District Court held that the plan violated Title VII, entered a judgment in favor of
the plaintiff class, and granted a permanent injunction prohibiting Kaiser and the
USWA from denying plaintiffs, Brian F. Weber and all other members of the class,
access to on-the-job training programs on the basis of race. A divided panel of the
Court of Appeals for the Fifth Circuit affirmed, holding that all employment
preferences based upon race, including those preferences incidental to bona fide
affirmative action plans, violated Title VII's prohibition against racial
discrimination in employment. . . . We reverse.
II
We emphasize at the outset the narrowness of our inquiry. [The] only question
before us [is] whether Title VII forbids private employers and unions from
voluntarily agreeing upon bona fide affirmative action plans that accord racial
preferences in the manner and for the purpose provided in the Kaiser-USWA plan.
. . . Respondent argues that Congress intended in Title VII to prohibit all race-
conscious affirmative action plans. Respondent's argument rests upon a literal
interpretation of 703 (a) and (d) of the Act. Those sections make it unlawful to
discriminate . . . because of . . . race in hiring and in the selection of apprentices
for training programs. Since, the argument runs, . . . Title VII forbids
discrimination against whites as well as blacks, and since the Kaiser-USWA
affirmative action plan operates to discriminate against white employees solely
because they are white, it follows that the Kaiser-USWA plan violates Title VII.
Respondent's argument is not without force. But it overlooks the significance of
the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily
adopted by private parties to eliminate traditional patterns of racial segregation. In
this context respondent's reliance upon a literal construction of 703 (a) and (d) . . . is
misplaced. It is a familiar rule, that a thing may be within the letter of the statute
and yet not within the statute, because not within its spirit, nor within the
intention of its makers. Holy Trinity Church v. United States, 143 U.S. 457, 459
(1892). The prohibition against racial discrimination in 703 (a) and (d) of Title VII

2 Section 703 (a), 78 Stat. 255, as amended, 86 Stat. 109, 42 U.S.C. 2000e-2 (a), provides: (a) . . . It
shall be an unlawful employment practice for an employer - "(1) to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin; or "(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin.
3 Section 703 (d), 78 Stat. 256, 42 U.S.C. 2000e-2 (d), provides: It shall be an unlawful employment

practice for any employer, labor organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training programs to
discriminate against any individual because of his race, color, religion, sex, or national origin in
admission to, or employment in, any program established to provide apprenticeship or other
training.

70
must therefore be read against the background of the legislative history of Title VII
and the historical context from which the Act arose. Examination of those sources
makes clear that an interpretation of the sections that forbade all race-conscious
affirmative action would bring about an end completely at variance with the
purpose of the statute and must be rejected. . . .
Congress primary concern in enacting the prohibition against racial
discrimination in Title VII of the Civil Rights Act of 1964 was with the plight of the
Negro in our economy. 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).
Before 1964, blacks were largely relegated to unskilled and semi-skilled jobs. Ibid.
(remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379-7380
(remarks of Sen. Kennedy). Because of automation the number of such jobs was
rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at 7204
(remarks of Sen. Clark). As a consequence, the relative position of the Negro
worker [was] steadily worsening. . . .
Congress feared that the goals of the Civil Rights Act . . . could not be achieved
unless this trend were reversed. . . . As Senator Humphrey explained to the Senate:
What good does it do a Negro to be able to eat in a fine restaurant if he cannot
afford to pay the bill? What good does it do him to be accepted in a hotel that is too
expensive for his modest income? How can a Negro child be motivated to take full
advantage of integrated educational facilities if he has no hope of getting a job
where he can use that education? Id., at 6547.
. . . Accordingly, it was clear to Congress that [t]he crux of the problem [was] to
open employment opportunities for Negroes in occupations which have been
traditionally closed to them, 110 Cong. Rec. 6548 (1964) (remarks of Sen.
Humphrey), and it was to this problem that Title VII's prohibition against racial
discrimination in employment was primarily addressed.
It plainly appears from the House Report accompanying the Civil Rights Act
that Congress did not intend wholly to prohibit private and voluntary affirmative
action efforts as one method of solving this problem. The Report provides:
No bill can or should lay claim to eliminating all of the causes and
consequences of racial and other types of discrimination against minorities. There
is reason to believe, however, that national leadership provided by the enactment
of Federal legislation dealing with the most troublesome problems will create an
atmosphere conducive to voluntary or local resolution of other forms of
discrimination. H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963).
(Emphasis supplied.)
Given this legislative history, we cannot agree with respondent that Congress
intended to prohibit the private sector from taking effective steps to accomplish the
goal that Congress designed Title VII to achieve. . . . It would be ironic indeed if a
law triggered by a Nation's concern over centuries of racial injustice and intended to
improve the lot of those who had "been excluded from the American dream for so
long," 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first

71
legislative prohibition of all voluntary, private, race-conscious efforts to abolish
traditional patterns of racial segregation and hierarchy.
Our conclusion is further reinforced by examination of the language and
legislative history of 703 (j) of Title VII.5 Opponents of Title VII raised two related
arguments against the bill. First, they argued that the Act would be interpreted to
require employers with racially imbalanced work forces to grant preferential
treatment to racial minorities in order to integrate. Second, they argued that
employers with racially imbalanced work forces would grant preferential treatment
to racial minorities, even if not required to do so by the Act. See 110 Cong. Rec.
8618-8619 (1964) (remarks of Sen. Sparkman). Had Congress meant to prohibit all
race-conscious affirmative action; as respondent urges, it easily could have
answered both objections by providing that Title VII would not require or permit
racially preferential integration efforts. But Congress did not choose such a course.
Rather, Congress added 703 (j) which addresses only the first objection. The section
provides that nothing contained in Title VII shall be interpreted to require any
employer . . . to grant preferential treatment . . . to any group because of the race . .
. of such . . . group on account of a de facto racial imbalance in the employer's work
force. The section does not state that nothing in Title VII shall be interpreted to
permit voluntary affirmative efforts to correct racial imbalances. The natural
inference is that Congress chose not to forbid all voluntary race-conscious
affirmative action.
The reasons for this choice are evident from the legislative record. Title VII
could not have been enacted into law without substantial support from legislators in
both Houses who traditionally resisted federal regulation of private business. Those
legislators demanded as a price for their support that management prerogatives,
and union freedoms . . . be left undisturbed to the greatest extent possible. H. R.
Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703 (j) was proposed
by Senator Dirksen to allay any fears that the Act might be interpreted in such a
way as to upset this compromise. The section was designed to prevent 703 of Title
VII from being interpreted in such a way as to lead to undue Federal Government
interference with private businesses because of some Federal employee's ideas

5 Section 703 (j) of Title VII, 78 Stat. 257, 42 U.S.C. 2000e-2 (j), provides: Nothing contained in this
title shall be interpreted to require any employer, employment agency, labor organization, or joint
labor-management committee subject to this title to grant preferential treatment to any individual
or to any group because of the race, color, religion, sex, or national origin of such individual or group
on account of an imbalance which may exist with respect to the total number or percentage of
persons of any race, color, religion, sex, or national origin employed by any employer, referred or
classified for employment by any employment agency or labor organization, admitted to membership
or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other
training program, in comparison with the total number or percentage of persons of such race, color,
religion, sex, or national origin in any community, State, section, or other area, or in the available
work force in any community, State, section, or other area. Section 703 (j) speaks to substantive
liability under Title VII, but it does not preclude courts from considering racial imbalance as
evidence of a Title VII violation. See Teamsters v. United States, 431 U.S. 324, 339, 340, n. 20
(1977). Remedies for substantive violations are governed by 706 (g), 42 U.S.C. 2000e-5 (g).

72
about racial balance or racial imbalance. 110 Cong. Rec. 14314 (1964) (remarks of
Sen. Miller). See also id., at 9881 (remarks of Sen. Allott); id., at 10520 (remarks of
Sen. Carlson) id., at 11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen.
Dirksen). Clearly, a prohibition against all voluntary, race-conscious, affirmative
action efforts would disserve these ends. Such a prohibition would augment the
powers of the Federal Government and diminish traditional management
prerogatives while at the same time impeding attainment of the ultimate statutory
goals. In view of this legislative history and in view of Congress' desire to avoid
undue federal regulation of private businesses, use of the word "require" rather
than the phrase "require or permit" in 703 (j) fortifies the conclusion that Congress
did not intend to limit traditional business freedom to such a degree as to prohibit
all voluntary, race-conscious affirmative action.7
We therefore hold that Title VII's prohibition in 703 (a) and (d) against racial
discrimination does not condemn all private, voluntary, race-conscious affirmative
action plans. . . . [The Court held that the Kaiser plan was lawful under Title VII
because both its purpose and effect were permissible: it was designed to eliminate
conspicuous racial imbalance in traditionally segregated job categories, and it does
not unnecessarily trammel the interests of white employees because no white
employees lost their jobs, half of those trained in the program will be white, and it
was a temporary measure ending when the percentage of black skilled workers in
the Grammercy plant approximates the percentage of blacks in the local labor
force.]

7 Respondent argues that our construction of 703 conflicts with various remarks in the legislative
record. See, e. g., 110 Cong. Rec. 7213 (1964) (Sens. Clark and Case); id., at 7218 (Sens. Clark and
Case); id., at 6549 (Sen. Humphrey); id., at 8921 (Sen. Williams). We do not agree. In Senator
Humphrey's words, these comments were intended as assurances that Title VII would not allow
establishment of systems "to maintain racial balance in employment." Id., at 11848 (emphasis
added). They were not addressed to temporary, voluntary, affirmative action measures undertaken
to eliminate manifest racial imbalance in traditionally segregated job categories. Moreover, the
comments referred to by respondent all preceded the adoption of 703 (j), 42 U.S.C. 2000e-2 (j). After
703 (j) was adopted, congressional comments were all to the effect that employers would not be
required to institute preferential quotas to avoid Title VII liability, see, e. g., 110 Cong. Rec. 12819
(1964) (remarks of Sen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876 (remarks
of Rep. Lindsay). There was no suggestion after the adoption of 703 (j) that wholly voluntary, race-
conscious, affirmative action efforts would in themselves constitute a violation of Title VII. On the
contrary, as Representative MacGregor told the House shortly before the final vote on Title VII:
Important as the scope and extent of this bill is, it is also vitally important that all
Americans understand what this bill does not cover.
Your mail and mine, your contacts and mine with our constituents, indicates a great
degree of misunderstanding about this bill. People complain about . . . preferential
treatment or quotas in employment. There is a mistaken belief that Congress is legislating
in these areas in this bill. When we drafted this bill we excluded these issues largely
because the problems raised by these controversial questions are more properly handled at
a governmental level closer to the American people and by communities and individuals
themselves." 110 Cong. Rec. 15893 (1964).

73
MR. JUSTICE POWELL and MR. JUSTICE STEVENS took no part in the consideration
or decision of these cases.

MR. JUSTICE BLACKMUN, concurring.


While I share some of the misgivings expressed in MR. JUSTICE REHNQUISTS
dissent, post, p. 219, concerning the extent to which the legislative history of Title
VII clearly supports the result the Court reaches today, I believe that additional
considerations, practical and equitable, only partially perceived, if perceived at all,
by the 88th Congress, support the conclusion reached by the Court today, and I
therefore join its opinion as well as its judgment.
In his dissent from the decision of the United States Court of Appeals for the
Fifth Circuit, Judge Wisdom pointed out that this litigation arises from a practical
problem in the administration of Title VII. The broad prohibition against
discrimination places the employer and the union on what he accurately described
as a high tightrope without a net beneath them. 563 F.2d 216, 230. If Title VII is
read literally, on the one hand they face liability for past discrimination against
blacks, and on the other they face liability to whites for any voluntary preferences
adopted to mitigate the effects of prior discrimination against blacks.
In this litigation, Kaiser denies prior discrimination but concedes that its past
hiring practices may be subject to question. Although the labor force in the
Gramercy area was approximately 39% black, Kaiser's work force was less than
15% black, and its craftwork force was less than 2% black. Kaiser had made some
effort to recruit black painters, carpenters, insulators, and other craftsmen, but it
continued to insist that those hired have five years' prior industrial experience, a
requirement that arguably was not sufficiently job related to justify under Title VII
any discriminatory impact it may have had. . . . The parties dispute the extent to
which black craftsmen were available in the local labor market. They agree,
however, that after critical reviews from the Office of Federal Contract Compliance,
Kaiser and the Steelworkers established the training program in question here and
modeled it along the lines of a Title VII consent decree later entered for the steel
industry. . . . Yet when they did this, respondent Weber sued, alleging that Title VII
prohibited the program because it discriminated against him as a white person and
it was not supported by a prior judicial finding of discrimination against blacks.
Respondent Weber's reading of Title VII, endorsed by the Court of Appeals,
places voluntary compliance with Title VII in profound jeopardy. The only way for
the employer and the union to keep their footing on the tightrope it creates would
be to eschew all forms of voluntary affirmative action. Even a whisper of emphasis
on minority recruiting would be forbidden. Because Congress intended to encourage
private efforts to come into compliance with Title VII, see Alexander v. Gardner-
Denver Co., 415 U.S. 36, 44 (1974), Judge Wisdom concluded that employers and
unions who had committed arguable violations of Title VII should be free to make
reasonable responses without fear of liability to whites. 563 F.2d, at 230.
Preferential hiring along the lines of the Kaiser program is a reasonable response

74
for the employer, whether or not a court, on these facts, could order the same step
as a remedy. The company is able to avoid identifying victims of past
discrimination, and so avoids claims for back pay that would inevitably follow a
response limited to such victims. If past victims should be benefited by the program,
however, the company mitigates its liability to those persons. Also, to the extent
that Title VII liability is predicated on the disparate effect of an employer's past
hiring practices, the program makes it less likely that such an effect could be
demonstrated. And the Court has recently held that work-force statistics resulting
from private affirmative action were probative of benign intent in a disparate
treatment case. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
The arguable violation theory has a number of advantages. It responds to a
practical problem in the administration of Title VII not anticipated by Congress. It
draws predictability from the outline of present law and closely effectuates the
purpose of the Act. Both Kaiser and the United States urge its adoption here.
Because I agree that it is the soundest way to approach this case, my preference
would be to resolve this litigation by applying it and holding that Kaiser's craft
training program meets the requirement that voluntary affirmative action be a
reasonable response to an arguable violation of Title VII. . . .
MR. CHIEF JUSTICE BURGER, dissenting.
The Court reaches a result I would be inclined to vote for were I a Member of
Congress considering a proposed amendment of Title VII. I cannot join the Court's
judgment, however, because it is contrary to the explicit language of the statute and
arrived at by means wholly incompatible with long-established principles of
separation of powers. Under the guise of statutory construction, the Court
effectively rewrites Title VII to achieve what it regards as a desirable result. It
amends the statute to do precisely what both its sponsors and its opponents
agreed the statute was not intended to do. . . .
It is often observed that hard cases make bad law. I suspect there is some truth
to that adage, for the hard cases always tempt judges to exceed the limits of their
authority, as the Court does today by totally rewriting a crucial part of Title VII to
reach a desirable result. Benjamin Cardozo no doubt had this type of case in mind
when he wrote:
The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from consecrated principles. He
is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is
to exercise a discretion informed by tradition, methodized by analogy, disciplined
by system, and subordinated to the primordial necessity of order in the social life.
Wide enough in all conscience is the field of discretion that remains. The Nature of
the Judicial Process 141 (1921).
What Cardozo tells us is beware the good result, achieved by judicially
unauthorized or intellectually dishonest means on the appealing notion that the
desirable ends justify the improper judicial means. For there is always the danger
75
that the seeds of precedent sown by good men for the best of motives will yield a
rich harvest of unprincipled acts of others also aiming at good ends.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
In a very real sense, the Court's opinion is ahead of its time: it could more
appropriately have been handed down five years from now, in 1984, a year
coinciding with the title of a book from which the Court's opinion borrows, perhaps
subconsciously, at least one idea. Orwell describes in his book a governmental
official of Oceania, one of the three great world powers, denouncing the current
enemy, Eurasia, to an assembled crowd:
It was almost impossible to listen to him without being first convinced and
then maddened. . . . The speech had been proceeding for perhaps twenty minutes
when a messenger hurried onto the platform and a scrap of paper was slipped into
the speaker's hand. He unrolled and read it without pausing in his speech. Nothing
altered in his voice or manner, or in the content of what he was saying, but
suddenly the names were different. Without words said, a wave of understanding
rippled through the crowd. Oceania was at war with Eastasia! . . . The banners and
posters with which the square was decorated were all wrong! . . .
[T]he speaker had switched from one line to the other actually in mid-
sentence, not only without a pause, but without even breaking the syntax." G.
Orwell, Nineteen Eighty-Four 181-182 (1949).
Today's decision represents an equally dramatic and equally unremarked switch
in this Court's interpretation of Title VII. . . .

II
Were Congress to act today specifically to prohibit the type of racial
discrimination suffered by Weber, it would be hard pressed to draft language better
tailored to the task than that found in 703 (d) of Title VII:
It shall be an unlawful employment practice for any employer, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training
programs to discriminate against any individual because of his race, color,
religion, sex, or national origin in admission to, or employment in, any
program established to provide apprenticeship or other training. 78 Stat.
256, 42 U.S.C. 2000e-2 (d).
Equally suited to the task would be 703 (a) (2), which makes it unlawful for an
employer to classify his employees in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's race, color, religion, sex, or
national origin. 78 Stat. 255, 42 U.S.C. 2000e-2 (a) (2).
Entirely consistent with these two express prohibitions is the language of 703 (j)
of Title VII, which provides that the Act is not to be interpreted to require any

76
employer . . . to grant preferential treatment to any individual or to any group
because of the race . . . of such individual or group to correct a racial imbalance in
the employer's work force. 42 U.S.C. 2000e-2 (j). Seizing on the word require, the
Court infers that Congress must have intended to permit this type of racial
discrimination. Not only is this reading of 703 (j) outlandish in the light of the flat
prohibitions of 703 (a) and (d), but, as explained in Part III, it is also totally belied
by the Act's legislative history.
Quite simply, Kaiser's racially discriminatory admission quota is flatly
prohibited by the plain language of Title VII. This normally dispositive fact,
however, gives the Court only momentary pause. An interpretation of the statute
upholding Weber's claim would, according to the Court, bring about an end
completely at variance with the purpose of the statute. To support this conclusion,
the Court calls upon the "spirit" of the Act, which it divines from passages in Title
VII's legislative history indicating that enactment of the statute was prompted by
Congress desire to open employment opportunities for Negroes in occupations
which [had] been traditionally closed to them. But the legislative history invoked
by the Court to avoid the plain language of 703 (a) and (d) simply misses the point.
To be sure, the reality of employment discrimination against Negroes provided the
primary impetus for passage of Title VII. But this fact by no means supports the
proposition that Congress intended to leave employers free to discriminate against
white persons. In most cases, [l]egislative history . . . is more vague than the
statute we are called upon to interpret. United States v. Public Utilities Comm'n,
supra, at 320 (Jackson, J., concurring). Here, however, the legislative history of
Title VII is as clear as the language of 703 (a) and (d), and it irrefutably
demonstrates that Congress meant precisely what it said in 703 (a) and (d) -- that
no racial discrimination in employment is permissible under Title VII, not even
preferential treatment of minorities to correct racial imbalance.

III
In undertaking to review the legislative history of Title VII, I am mindful that
the topic hardly makes for light reading, but I am also fearful that nothing short of
a thorough examination of the congressional debates will fully expose the
magnitude of the Court's misinterpretation of Congress' intent.
A
Introduced on the floor of the House of Representatives on June 20, 1963, the
bill -- H. R. 7152 -- that ultimately became the Civil Rights Act of 1964 contained no
compulsory provisions directed at private discrimination in employment. The bill
was promptly referred to the Committee on the Judiciary, where it was amended to
include Title VII. With two exceptions, the bill reported by the House Judiciary
Committee contained 703 (a) and (d) as they were ultimately enacted. Amendments
subsequently adopted on the House floor added 703's prohibition against sex
discrimination and 703 (d)'s coverage of on-the-job training.

77
After noting that [t]he purpose of [Title VII] is to eliminate . . . discrimination
in employment based on race, color, religion, or national origin, the Judiciary
Committee's Report simply paraphrased the provisions of Title VII without
elaboration. H. R. Rep., pt. 1, p. 26. In a separate Minority Report, however,
opponents of the measure on the Committee advanced a line of attack which was
reiterated throughout the debates in both the House and Senate and which
ultimately led to passage of 703 (j). Noting that the word discrimination was
nowhere defined in H. R. 7152, the Minority Report charged that the absence from
Title VII of any reference to "racial imbalance" was a "public relations" ruse and
that the administration intends to rely upon its own construction of
`discrimination' as including the lack of racial balance . . . . H. R. Rep., pt. 1, pp. 67-
68. To demonstrate how the bill would operate in practice, the Minority Report
posited a number of hypothetical employment situations, concluding in each
example that the employer may be forced to hire according to race to racially
balance those who work for him in every job classification or be in violation of
Federal law. Id., at 69 (emphasis in original).
When H. R. 7152 reached the House floor, the opening speech in support of its
passage was delivered by Representative Celler, Chairman of the House Judiciary
Committee and the Congressman responsible for introducing the legislation. A
portion of that speech responded to criticism seriously misrepresent[ing] what the
bill would do and grossly distort[ing] its effects:
[T]he charge has been made that the Equal Employment Opportunity
Commission to be established by title VII of the bill would have the power to
prevent a business from employing and promoting the people it wished, and that a
`Federal inspector' could then order the hiring and promotion only of employees of
certain races or religious groups. This description of the bill is entirely wrong. . . .
Even [a] court could not order that any preference be given to any particular
race, religion or other group, but would be limited to ordering an end of
discrimination. The statement that a Federal inspector could order the
employment and promotion only of members of a specific racial or religious group is
therefore patently erroneous. . . .
The Bill would do no more than prevent . . . employers from discriminating
against or in favor of workers because of their race, religion, or national origin.
It is likewise not true that the Equal Employment Opportunity Commission
would have power to rectify existing racial or religious imbalance in employment
by requiring the hiring of certain people without regard to their qualifications
simply because they are of a given race or religion. Only actual discrimination
could be stopped. 110 Cong. Rec. 1518 (1964) (emphasis added).
Representative Celler's construction of Title VII was repeated by several other
supporters during the House debate.
Thus, the battle lines were drawn early in the legislative struggle over Title VII,
with opponents of the measure charging that agencies of the Federal Government
such as the Equal Employment Opportunity Commission (EEOC), by interpreting
the word discrimination to mean the existence of racial imbalance, would

78
require employers to grant preferential treatment to minorities, and supporters
responding that the EEOC would be granted no such power and that, indeed, Title
VII prohibits discrimination in favor of workers because of their race. Supporters
of H. R. 7152 in the House ultimately prevailed by a vote of 290 to 130, 14 and the
measure was sent to the Senate to begin what became the longest debate in that
body's history.
B
The Senate debate was broken into three phases: the debate on sending the bill
to Committee, the general debate on the bill prior to invocation of cloture, and the
debate following cloture. . . .
Formal debate on the merits of H. R. 7152 began on March 30, 1964. Supporters
of the bill in the Senate had made elaborate preparations for this second round.
Senator Humphrey, the majority whip, and Senator Kuchel, the minority whip,
were selected as the bipartisan floor managers on the entire civil rights bill.
Responsibility for explaining and defending each important title of the bill was
placed on bipartisan "captains." Senators Clark and Case were selected as the
bipartisan captains responsible for Title VII. Vaas, Title VII: Legislative History, 7
B. C. Ind. & Com. L. Rev. 431, 444-445 (1966) (hereinafter Title VII: Legislative
History).
In the opening speech of the formal Senate debate on the bill, Senator
Humphrey addressed the main concern of Title VII's opponents, advising that not
only does Title VII not require use of racial quotas, it does not permit their use.
"The truth," stated the floor leader of the bill, is that this title forbids
discriminating against anyone on account of race. This is the simple and complete
truth about title VII. 110 Cong. Rec. 6549 (1964). Senator Humphrey continued:
Contrary to the allegations of some opponents of this title, there is nothing in
it that will give any power to the Commission or to any court to require hiring,
firing, or promotion of employees in order to meet a racial `quota' or to achieve a
certain racial balance.
That bugaboo has been brought up a dozen times; but it is nonexistent. In fact,
the very opposite is true. Title VII prohibits discrimination. In effect, it says that
race, religion and national origin are not to be used as the basis for hiring and
firing. Title VII is designed to encourage hiring on the basis of ability and
qualifications, not race or religion." Ibid. (emphasis added).
At the close of his speech, Senator Humphrey returned briefly to the subject of
employment quotas: It is claimed that the bill would require racial quotas for all
hiring, when in fact it provides that race shall not be a basis for making personnel
decisions. Id., at 6553. . . .
[In addition, Senators Kuchel, Clark and Case made similar comments.
Southern opponents to the bill were still not satisfied, though. Senator Robertson
(D-Va.) argued that the bill would mandate quotas. Senator H. Williams (D-N.J.)
responded:]

79
Those opposed to H. R. 7152 should realize that to hire a Negro solely because
he is a Negro is racial discrimination, just as much as a `white only' employment
policy. Both forms of discrimination are prohibited by title VII of this bill. The
language of that title simply states that race is not a qualification for employment.
. . . Some people charge that H. R. 7152 favors the Negro, at the expense of the
white majority. But how can the language of equality favor one race or one religion
over another? Equality can have only one meaning, and that meaning is self-
evident to reasonable men. Those who say that equality means favoritism do
violence to common sense." Id., at 8921.
While the debate in the Senate raged, a bipartisan coalition under the
leadership of Senators Dirksen, Mansfield, Humphrey, and Kuchel was working
with House leaders and representatives of the Johnson administration on a number
of amendments to H. R. 7152 designed to enhance its prospects of passage. The so-
called Dirksen-Mansfield amendment was introduced on May 26 by Senator
Dirksen as a substitute for the entire House-passed bill. The substitute bill, which
ultimately became law, left unchanged the basic prohibitory language of 703 (a) and
(d), as well as the remedial provisions in 706 (g). It added, however, several
provisions defining and clarifying the scope of Title VII's substantive prohibitions.
One of those clarifying amendments, 703 (j), was specifically directed at the
opposition's concerns regarding racial balancing and preferential treatment of
minorities, providing in pertinent part: "Nothing contained in [Title VII] shall be
interpreted to require any employer . . . to grant preferential treatment to any
individual or to any group because of the race . . . of such individual or group on
account of" a racial imbalance in the employer's work force. 42 U.S.C. 2000e-2 (j). . .
Contrary to the Court's analysis, the language of 703 (j) is precisely tailored to
the objection voiced time and again by Title VII's opponents. Not once during the 83
days of debate in the Senate did a speaker, proponent or opponent, suggest that the
bill would allow employers voluntarily to prefer racial minorities over white
persons. In light of Title VII's flat prohibition on discrimination against any
individual . . . because of such individual's race, 703 (a), 42 U.S.C. 2000e-2 (a), such
a contention would have been, in any event, too preposterous to warrant response.
Indeed, speakers on both sides of the issue, as the legislative history makes clear,
recognized that Title VII would tolerate no voluntary racial preference, whether in
favor of blacks or whites. The complaint consistently voiced by the opponents was
that Title VII, particularly the word discrimination, would be interpreted by
federal agencies such as the EEOC to require the correction of racial imbalance
through the granting of preferential treatment to minorities. Verbal assurances
that Title VII would not require -- indeed, would not permit -- preferential
treatment of blacks having failed, supporters of H. R. 7152 responded by proposing
an amendment carefully worded to meet, and put to rest, the opposition's charge.
Indeed, unlike 703 (a) and (d), which are by their terms directed at entities -- e. g.,
employers, labor unions -- whose actions are restricted by Title VII's prohibitions,
the language of 703 (j) is specifically directed at entities -- federal agencies and
courts -- charged with the responsibility of interpreting Title VII's provisions.

80
In light of the background and purpose of 703 (j), the irony of invoking the
section to justify the result in this case is obvious. The Court's frequent references
to the voluntary nature of Kaiser's racially discriminatory admission quota bear
no relationship to the facts of this case. Kaiser and the Steelworkers acted under
pressure from an agency of the Federal Government, the Office of Federal Contract
Compliance, which found that minorities were being underutilized at Kaiser's
plants. That is, Kaiser's work force was racially imbalanced. Bowing to that
pressure, Kaiser instituted an admissions quota preferring blacks over whites, thus
confirming that the fears of Title VII's opponents were well founded. Today, 703 (j),
adopted to allay those fears, is invoked by the Court to uphold imposition of a racial
quota under the very circumstances that the section was intended to prevent. . . . .
[Justice Rehnquist also pointed to Senator Ervins June 9 amendment to delete
Title VII. Responding for the sponsors, Senator Clark emphasized that the bill
establishes no quotas. Senator Cotton (R-N.H.) offered an amendment to limit
Title VII to firms having more than 100 employees. He opined that Title VII would
forbid quotas. Although his amendment was defeated, Justice Rehnquist observed
that the sponsors did not dispute the Cotton view.
[When cloture was invoked on June 10, 1964, debate was limited, but several
post-cloture statements by the bills supporters reinforced the earlier view that Title
VII imposed no quotas. The substitute bill was passed on June 19. In final form, the
bill was passed by the House on July 2 and signed by President Johnson that same
day.]
V
Our task in this case, like any other case involving the construction of a statute,
is to give effect to the intent of Congress. To divine that intent, we traditionally look
first to the words of the statute and, if they are unclear, then to the statute's
legislative history. Finding the desired result hopelessly foreclosed by these
conventional sources, the Court turns to a third source -- the spirit of the Act. But
close examination of what the Court proffers as the spirit of the Act reveals it as the
spirit animating the present majority, not the 88th Congress. For if the spirit of the
Act eludes the cold words of the statute itself, it rings out with unmistakable clarity
in the words of the elected representatives who made the Act law. It is equality.
Senator Dirksen, I think, captured that spirit in a speech delivered on the floor of
the Senate just moments before the bill was passed:
. . [T]oday we come to grips finally with a bill that advances the enjoyment of
living; but, more than that, it advances the equality of opportunity.
I do not emphasize the word `equality' standing by itself. It means equality of
opportunity in the field of education. It means equality of opportunity in the field of
employment. It means equality of opportunity in the field of participation in the
affairs of government . . . .
That is it.

81
Equality of opportunity, if we are going to talk about conscience, is the mass
conscience of mankind that speaks in every generation, and it will continue to
speak long after we are dead and gone. 110 Cong. Rec. 14510 (1964).
There is perhaps no device more destructive to the notion of equality than the
numerus clausus -- the quota. Whether described as benign discrimination or
affirmative action, the racial quota is nonetheless a creator of castes, a two-edged
sword that must demean one in order to prefer another. In passing Title VII,
Congress outlawed all racial discrimination, recognizing that no discrimination
based on race is benign, that no action disadvantaging a person because of his color
is affirmative. With today's holding, the Court introduces into Title VII a tolerance
for the very evil that the law was intended to eradicate, without offering even a clue
as to what the limits on that tolerance may be. We are told simply that Kaiser's
racially discriminatory admission quota falls on the permissible side of the line.
By going not merely beyond, but directly against Title VII's language and legislative
history, the Court has sown the wind. Later courts will face the impossible task of
reaping the whirlwind.
* * * * *

Consider William Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L.


Rev. 1479 (1987):
Prevailing approaches to statutory interpretation treat statutes as static texts.
Thus, the leading treatise states that [f]or the interpretation of statutes, intent of
the legislature is the criterion that is most often cited. This intentionalist
approach asks how the legislature originally intended the interpretive question to
be answered, or would have intended the question to be answered had it thought
about the issue when it passed the statute. . . .
Theoretically, this originalist approach to statutory interpretation assumes
that the legislature fixes the meaning of a statute on the date the statute is enacted.
The implicit claim is that a legislator interpreting the statute at the time of
enactment would render the same interpretation as a judge interpreting the same
statute fifty years later. . . .
[But] as society changes, adapts to the statute, and generates new variations of
the problem which gave rise to the statute, unanticipated gaps and ambiguities
proliferate. In such circumstances, it seems sensible that the quest is not properly
for the sense originally intended by the statute, [or] for the sense sought originally
to be put into it, but rather for the sense which can be quarried out of it in the light
of the new situation. Moreover, as time passes, the legal and constitutional context
of the statute may change. Should not an intrepreter ask herself not only what the
legislation means abstractly, or even on the basis of legislative history, but also
what it ought to mean in terms of the needs and goals of our present day society?. .
Three major types of arguments have been invoked in favor of statutory
intentionalism: (1) the formalist argument that the Constitution vests Congress

82
with the exclusive power to create law or policy, leaving courts with no role but to
carry out the intent (or purpose) of Congress; (2) the economic argument that
statutes are contracts between interest groups and legislatures and as such must be
enforced by judges (the agents of the legislature) according to their original terms
and intent; and (3) the legal process argument that it is illegitimate for nonelected
judges to make policy in a majoritarian political system by expanding upon the
original meaning of statutes. None of these arguments, however, justifies statutory
intentionalism when circumstances have changed and the statutory language is not
determinate.
[In Weber, for example, the] statutory text does not decisively answer the
interpretive issue, contrary to labored readings by both the majority and dissenting
opinions. Section 703(d) makes it an unlawful practice for an employer or labor
organization to discriminate against any individual because of his race, color,
religion, sex, or national origin in admission to, or employment in, any program
established to provide apprenticeship or other training. The operative word is
discriminate, which is not defined in the Act. [It is plausible to interpret] the
antidiscrimination rule of section 703(d) to prevent any and every differential
treatment of employees on racial grounds. [But it] is also plausible to interpret the
antidiscrimination rule to penalize only discrimination which is invidious, for the
term discrimination in common usage means something more than just different
treatment. [On] the whole, I consider the textual arguments inconclusive; good
arguments can be made for either position. . . .
The [legislative history] perspective provides some, but not decisive, guidance
for solving the interpretive puzzle. There was a great deal of discussion of quotas
in the legislative debates; supporters of the civil rights bill repeatedly assured
opponents and undecided legislators that the statute would not mandate racial
quotas. The dissenting opinion in Weber meticulously recounted these debates and
argued that the statutory deal was that there would be no mandatory or voluntary
quotas. This is far from clear, however, because nowhere in the legislative history
does any member of Congress explicitly state opposition to both voluntary and
mandatory affirmative action programs. . . .
The majority opinion largely ignored the intentionalist evidence assembled by
the dissenting opinion and countered with a [purposive] argument: the purpose of
Title VII, set forth in the House Judiciary Committee report, was to obtain more
jobs for blacks. That purpose was thwarted in the 1970's by the continued effects of
past discrimination. To fulfill this statutory purpose, the Court reasoned it should
broadly validate voluntary affirmative action programs such as the plan in Weber. .
..
[None of this is dispositive. Ultimately,] I agree with the Weber Court's result
because of the evolutive perspective. The separate concurring opinion of Justice
Blackmun is the most sensible opinion in the Weber case. Justice Blackmun argued
that the evolution of Title VII created a practical dilemma for unions and employers
that justified voluntary affirmative action in many cases. My dynamic

83
interpretation of Title VII would start with this insight and broaden it to include
our changing concept of discrimination. An assumption of most supporters of Title
VII in 1964 was that equality of opportunity for minorities would in due time yield
equality of result in employment. As the statute was implemented by the courts and
the Equal Employment Opportunity Commission (EEOC), however, it became
apparent that formally equal opportunities were not always leading to significantly
greater representation of minorities in the workforce. American society came to
understand that the invidious effects of discrimination might last long after the
discrimination itself ceased and that more affirmative measures were needed to
afford any reasonable chance for a color-blind society in the future. Consequently,
there was greater pressure on employers and unions to undertake voluntary efforts
to re-evaluate their employment practices. . . .
Once the most blatant forms of discrimination were eliminated, the EEOC and
other enforcers sought to eliminate more subtle forms of discrimination, such as
facially neutral job classifications which had the effect of excluding minorities. The
Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), held that a job
qualification test that was not demonstrably discriminatory in purpose nonetheless
would violate Title VII if it had the effect of excluding a group on the basis of race.
This decision underscored the idea that results matter, but also generated a
practical dilemma for companies seeking to comply with Title VII. Even if they were
not treating blacks and other minorities differently from white males, companies
and unionslike those in Weberfaced potential Title VII liability if the numbers
of blacks and other minorities in their workforce remained too low. Given the
Supreme Court's endorsement of voluntary programs, the natural response was
voluntary affirmative action programs such as the one in Weber.
This dynamic approach to the Weber problem is particularly persuasive because
it recognizes not only that the very nature of the problem had changed since 1964,
but also that the legal and societal context of Title VII had changed. In 1964, the
legal culturelegislators, judges, administrators, and commentatorsfocused on
how to root out discrimination inspired by racial animus. People thought that
rooting out actual prejudice would create a color-blind society. The intellectual focus
changed over the next fifteen years, as the legal community came to realize that
discrimination could be just as invidious even when it could not be established that
prejudice was at its root. The concept of the continuing effects of historical patterns
of discrimination suggested that current institutions might perpetuate
discrimination even though no one in those institutions remained personally
prejudiced. This insight was not a historical concern of the 1964 Act, but it evolved
into a current concern and was recognized in subsequent statutes, judicial decisions,
and commentary.
Indeed, the legal cultures rethinking of the concept of discrimination has
entailed a more positive vision, in which voluntary affirmative action plays a critical
role. Employers may desire to implement affirmative action for reasons unrelated to
their own past discriminationincluding a desire to promote workplace or societal

84
diversity as a positive good or to improve service or to appeal to minority
communities. Weber subserves this positive vision as well. . . .
Weber suggests a lesson: when societal conditions change in ways not
anticipated by Congress and, especially, when the legal and constitutional context
of the statute decisively shifts as well, this current perspective should, and will,
affect the statutes interpretation, notwithstanding contrary inferences from the
historical evidence. The harder question is whether the evolutive perspective should
be similarly persuasive in the face of more determinate statutory language. This
problem poses the possible clash between the rule of law values of the textual
perspective and the justice values of the evolutive perspective.

85
A Matter of Interpretation: Federal Courts and the Law
Antonin Scalia
1997
We live in an age of legislation, and most new law is statutory law. [The] state
of the science of statutory interpretation in American law is accurately described by
a prominent treatise on the legal process as follows:
Do not expect anybodys theory of statutory interpretation, whether it is your
own or somebody elses, to be an accurate statement of what courts actually do with
statutes. The hard truth of the matter is that American courts have no intelligible,
generally accepted, and consistently applied theory of statutory interpretation.*
Surely this is a sad commentary: We American judges have no intelligible
theory of what we do most. [So] utterly unformed is the American law of statutory
interpretation that not only is its methodology unclear, but even its very objective
is. Consider the basic question: What are we looking for when we construe a
statute?
You will find it frequently said in judicial opinions [that] the judges objective in
interpreting a statute is to give effect to the intent of the legislature. This
principle, in one form or another, goes back at least as far as Blackstone. [But if]
one accepts the principle that the object of judicial interpretation is to determine the
intent of the legislature [there is a danger] that, under the guise or even the self-
delusion of pursuing unexpressed legislative intents, [judges] will in fact pursue
their own objectives and desires. . . .
When you are told to decide, not on the basis of what the legislature said, but on
the basis of what the legislature meant, and are assured that there is no necessary
connection between the two, your best shot at figuring out what the legislature
meant is to ask yourself what a wise and intelligent person should have meant; and
that will surely bring you to the conclusion that the law means what you think it
ought to mean which is precisely how judges decide things under the common law.
As Dean Landis of Harvard Law School [put] it in a 1930 article:
[T]he gravest sins are perpetrated in the name of the intent of the legislature.
[To] condone [the] practice of talking in terms of the intent of the legislature, as if
the legislature had attributed a particular meaning to certain words, when it is
apparent that the intent is that of the judge, is to condone atavistic practices too
reminiscent of the medicine man.*
. . . To give some concrete form to the danger I warn against, [consider] Church
of the Holy Trinity v. United States. [Clearly, the defendants act] was within the
letter of the statute: end of case. Congress can enact foolish statutes as well as wise
ones, and it is not for courts to decide which is which and rewrite the former. . . .
Church of the Holy Trinity is cited to us whenever counsel wants us to ignore the

* Henry M. Hart, Jr. & Albert Sacks, The Legal Process 1169 (1994).
* James M. Landis, A Note on Statutory Construction, 43 Harv. L. Rev. 886, 891 (1930).

86
narrow, deadening text of the statute, and pay attention to the life-giving legislative
intent. It is nothing but an invitation to judicial lawmaking. . . .
[A recent argument to accord] courts the power to revise statutes is set forth in
Professor Eskridges recent [work], Dynamic Statutory Interpretation, in which he
argues that it is proper for the judge who applies a statute to consider not only
what the statute means abstractly, or even on the basis of legislative history, but
also what it ought to mean in terms of the needs and goals of our present day
society.. . .
. . . What I think is needed is [abandonment] of [this approach]. It is simply not
compatible with democratic theory that laws mean whatever they ought to mean,
and that unelected judges decide what that is. It may well be that the statutory
interpretation adopted by the Court in Church of the Holy Trinity produced a
desirable result; and it may even be (though I doubt it) that it produced the
unexpressed result actually intended by Congress, rather than merely the one
desired by the Court. Regardless, the decision was wrong because it failed to follow
the text. The text is the law, and it is the text that must be observed. . . .
The philosophy of interpretation I [endorse] is known as textualism. In some
sophisticated circles, it is considered simpleminded wooden, unimaginative,
pedestrian. It is none of that. To be a textualist in good standing, one need not be
too dull to perceive the broader social purposes that a statute is designed, or could
be designed, to serve; or too hide-bound to realize that new times require new laws.
One need only hold that belief that judges have no authority to pursue those
broader purposes or write those new laws. [Of] all the criticisms leveled against
textualism, the most mindless is that it is formalistic. The answer to that is, of
course its formalistic! The rule of law is about form. . . . Long live formalism. It is
what makes a government a government of laws and not of men. . . .
Let me turn now [to] an interpretative device whose widespread use is relatively
new: legislative history, by which I mean the statements made is the floor debates,
committee reports, and even committee testimony, leading up to the enactment of
the legislation. My view that the objective indication of the words, rather than the
intent of the legislature, is what constitutes the law leads me, of course, to the
conclusion that legislative history should not be used as an authoritative indication
of a statutes meaning. This was the traditional English, and the traditional
American practice. Chief Justice Taney wrote [in 1845]:
In expounding this law, the judgment of the court cannot, in any degree, be
influenced by the construction placed upon it by individual members of Congress in
the debate which took place on its passage, nor by the motives or reasons assigned
by them for supporting or opposing amendments that were offered. The law as it
passed is the will of the majority of both houses, and the only mode in which that
will is spoken is in the act itself; and we must gather their intention from the
language there used, comparing it, when any ambiguity exists, with the laws upon

87
the same subject, and looking, if necessary, to the public history of the times in
which it was passed.*
That uncompromising view generally prevailed in this country until the present
century. The movement to change it gained momentum in the late 1920s and 1930s,
driven, believe it or not, by frustration with common-law judges use of legislative
intent and phonied-up canons to impose their own views in those days views
opposed to progressive social legislation.* [Extensive] use of legislative history in
this country dates only from about the 1940s. [In] the past decades, however, we
have developed a legal culture in which lawyers routinely and I do mean routinely
make no distinction between words used in the text of a statute and words in the
legislative history. [Resort] to legislative history has become so common that
lawyerly wags have popularized a humorous quip inverting the oft-recited (and oft-
ignored) rule as to when its use is appropriate: One should consult the text of the
statute, the joke goes, only when the legislative history is ambiguous. Alas, that
is no longer funny. . . .
As I have said, I object to the use of legislative history on principle, since I reject
intent of the legislature as the proper criterion of the law. What is most
exasperating about the use of legislative history, however, is that it does not even
make sense for those who accept legislative intent as the criterion. It is much more
likely to produce a false or contrived legislative intent than a genuine one. The first
and most obvious reason for this is that, with respect to 99.99 percent of the issues
of construction reaching the courts, there is no legislative intent, so that any clues
provided by the legislative history are bound to be false. Those issues almost
invariably involve points of relative detail, compared with the major sweep of the
statute in question. That a majority of both house of Congress . . . entertained any
view with regard to such issues is utterly beyond belief. For a virtual certainty, the
majority was blissfully unaware of the existence of the issue, much less had any
preference as to how it should be resolved.
But assuming, contrary to all reality, that the search for legislative intent is a
search for something that exists, that something is not likely to be found in the
archives of legislative history. [The floor of Congress] is rarely crowded for a debate,
[and] it is not even certain that the members of the issuing committees have found
time to read [their own committee reports]. . . . Ironically, but quite understandably,
the more courts have relied upon legislative history, the less worthy of reliance it
has become. [Nowadays], when it is universally known and expected that judges
will resort to floor debates and (especially) committee reports as authoritative
expressions of legislative intent, affecting the courts rather than informing the
Congress has become the primary purpose of the exercise. [One] of the routine tasks
of the Washington lawyer-lobbyist is to draft language that sympathetic legislators
can recite in a prewritten floor debate or, even better, insert into a committee
report. . . .

* Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (emphasis added by Scalia).


* [Recall canon 15.]

88
I think it is time to call an end to a brief and failed experiment, if not for
reasons of principle then for reasons of practicality. [The] most immediate and
tangible change the abandonment of legislative history would effect is this: Judges,
lawyers, and clients will be saved an enormous amont of time and expense. . . .
* * * * *
Consider the following responses to Justice Scalia by Gordon Wood and Ronald
Dworkin:
Justice Scalia is certainly right in stressing the extraordinary degree of
discretionary power that American judges now wield. . . . But [that] power is the
product of immense changes in our legal and judicial culture which have occurred
over the past two hundred years. . . . [Moreover,] his remedy of textualism seems
scarcely commensurate with the severity of the problem and may in fact be no
solution at all. Textualism, as Justice Scalia defines it, appears to me to be as
permissive and open to arbitrary judicial discretion and expansion as the use of
legislative intent or other interpretative methods, if the text-minded judge is so
inclined. . . . [Wood.]
[Justice Scalias] argument rests of a crucial distinction between law and
intention, [and] he is scornful of decisions like Holy Trinity, in which the Supreme
Court, conceding that the letter of a statute forbade what the church had done,
speculated that Congress did not intend that result. [The] law, as Scalia
emphasizes, is what Congress has said, . . . not by what some proportion of its
members wanted or expected or assumed would happen, or would have wanted or
expected or assumed if they had thought of the case. Not everyone agrees with that
judgment. Some lawyers think that it accords better with democracy if judges defer
to reasonable assumptions about what most legislators wanted or would have
wanted, even when the language they used does not embody those actual or
hypothetical wishes. After all, these lawyers argue, legislation should reflect what
those who have been elected by the people actually think best for the country. Scalia
disagrees with that judgment: he thinks it more democratic to give semantic
intention priority over expectation intention when the two conflict, as they
putatively did in Holy Trinity. [Dworkin.]
Dworkin misses the point here. Textualism is better for democracy b/c it
incentivizes the legislator to write statutes with knowledge that they will be
interpreted IAW with their text. Thus will avoid unintentional ambiguities, or
include intentional ones (such as cruel and unusual)

89
Rapanos
v.
United States

547 U.S. 715 (2008)

JUSTICE SCALIA announced the judgment of the Court, and delivered an opinion,
in which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join.
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of
land in Michigan that he owned and sought to develop. This parcel included 54
acres of land with sometimes-saturated soil conditions. The nearest body of
navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos
that his saturated fields were waters of the United States, 33 U. S. C. 1362(7),
that could not be filled without a permit. Twelve years of criminal and civil
litigation ensued.
The burden of federal regulation on those who would deposit fill material in
locations denominated waters of the United States is not trivial. In deciding
whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps)
exercises the discretion of an enlightened despot, relying on such factors as
economics, aesthetics, recreation, and in general, the needs and welfare of the
people, 33 CFR 320.4(a) (2004). The average applicant for an individual permit
spends 788 days and $271,596 in completing the processnot counting costs of
mitigation or design changes. [O]ver $1.7 billion is spent each year by the private
and public sectors obtaining wetlands permits. These costs cannot be avoided,
because the Clean Water Act impose[s] criminal liability, as well as steep civil
fines, on a broad range of ordinary industrial and commercial activities. In this
litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63
months in prison and hundreds of thousands of dollars in criminal and civil fines.
The enforcement proceedings against Mr. Rapanos are a small part of the
immense expansion of federal regulation of land use that has occurred under the
Clean Water Actwithout any change in the governing statuteduring the past
five Presidential administrations. In the last three decades, the Corps and the
Environmental Protection Agency (EPA) have interpreted their jurisdiction over
the waters of the United States to cover 270-to-300 million acres of swampy lands
in the United Statesincluding half of Alaska and an area the size of California in
the lower 48 States. . . .
I
Congress passed the Clean Water Act (CWA or Act) in 1972. The Acts stated
objective is to restore and maintain the chemical, physical, and biological integrity
of the Nations waters. 86 Stat. 816, 33 U. S. C. 1251(a). The Act also states that
[i]t is the policy of Congress to recognize, preserve, and protect the primary

90
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to
plan the development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with the Administrator in
the exercise of his authority under this chapter. 1251(b).
One of the statutes principal provisions is 33 U. S. C. 1311(a), which provides
that the discharge of any pollutant by any person shall be unlawful. The
discharge of a pollutant is defined broadly to include any addition of any pollutant
to navigable waters from any point source, 1362(12), and pollutant is defined
broadly to include not only traditional contaminants but also solids such as
dredged soil, . . . rock, sand, [and] cellar dirt, 1362(6). And, most relevant here,
the CWA defines navigable waters as the waters of the United States. . . .
1362(7).
The Act also provides certain exceptions to its prohibition of the discharge of
any pollutant by any person. 1311(a). Section 1342(a) authorizes the
Administrator of the EPA to issue a permit for the discharge of any pollutant,
notwithstanding section 1311(a) of this title. Section 1344 authorizes the Secretary
of the Army, acting through the Corps, to issue permits for the discharge of
dredged or fill material into the navigable waters at specified disposal sites.
1344(a), (d). It is the discharge of dredged or fill materialwhich, unlike
traditional water pollutants, are solids that do not readily wash downstreamthat
we consider today.
For a century prior to the CWA, we had interpreted the phrase navigable
waters of the United States in the Acts predecessor statutes to refer to interstate
waters that are navigable in fact or readily susceptible of being rendered so. See
The Daniel Ball, 77 U.S. 557 (1871). After passage of the CWA, the Corps initially
adopted this traditional judicial definition for the Acts term navigable waters. See
39 Fed. Reg. 12119, codified at 33 CFR 209.120(d)(1) (1974). [The] Corps [later]
adopted a far broader definition. See 40 Fed. Reg. 3132431325 (1975); 42 Fed. Reg.
37144 (1977). The Corps new regulations deliberately sought to extend the
definition of the waters of the United States to the outer limits of Congresss
commerce power. See id., at 37144, n. 2.
The Corps current regulations interpret the waters of the United States to
include, in addition to traditional interstate navigable waters, [a]ll interstate
waters including interstate wetlands, 328.3(a)(2); [a]ll other waters such as
intrastate lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation or destruction of which could affect interstate or foreign
commerce, 328.3(a)(3); [t]ributaries of [such] waters, 328.3(a)(5); and
[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are
themselves wetlands), 328.3(a)(7). The regulation defines adjacent wetlands as
those bordering, contiguous [to], or neighboring waters of the United States.
328.3(c). It specifically provides that [w]etlands separated from other waters of

91
the United States by man-made dikes or barriers, natural river berms, beach dunes
and the like are adjacent wetlands. Ibid. . . .
II
We consider [in this case] whether [three] Michigan wetlands, which lie near
ditches or man-made drains that eventually empty into traditional navigable
waters, constitute waters of the United States within the meaning of the Act.
Petitioners, [the] Rapanos and their affiliated businesses, deposited fill material
without a permit into wetlands on three sites near Midland, Michigan: the
Salzburg site, the Hines Road site, and the Pine River site. The wetlands at
the Salzburg site are connected to a man-made drain, which drains into Hoppler
Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and
Lake Huron. The wetlands at the Hines Road site are connected to something called
the Rose Drain, which has a surface connection to the Tittabawassee River. And
the wetlands at the Pine River site have a surface connection to the Pine River,
which flows into Lake Huron. It is not clear whether the connections between these
wetlands and the nearby drains and ditches are continuous or intermittent, or
whether the nearby drains and ditches contain continuous or merely occasional
flows of water.
The United States brought civil enforcement proceedings against the Rapanos
petitioners. The District Court found that the three described wetlands were
within federal jurisdiction because they were adjacent to other waters of the
United States, and held petitioners liable for violations of the CWA at those sites.
On appeal, the United States Court of Appeals for the Sixth Circuit affirmed,
holding that there was federal jurisdiction over the wetlands at all three sites
because there were hydrological connections between all three sites and
corresponding adjacent tributaries of navigable waters.. . .
We granted certiorari . . . to decide whether these wetlands constitute waters of
the United States under the Act. . . .
III
The Rapanos petitioners contend that the terms navigable waters and waters
of the United States in the Act must be limited to the traditional definition of The
Daniel Ball, 77 U.S. 557 (1870), which required that the waters be navigable in
fact, or susceptible of being rendered so. But this definition cannot be applied
wholesale to the CWA. The Act uses the phrase navigable waters as a defined
term, and the definition is simply the waters of the United States. 33 U. S. C.
1362(7). Moreover, the Act provides, in certain circumstances, for the substitution
of state for federal jurisdiction over navigable waters other than those waters
which are presently used, or are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or foreign commerce . . .
including wetlands adjacent thereto. 1344(g)(1) (emphasis added). This provision
shows that the Acts term navigable waters includes something more than
traditional navigable waters. . . .

92
We need not decide the precise extent to which the qualifiers navigable and of
the United States restrict the coverage of the Act. Whatever the scope of these
qualifiers, the CWA authorizes federal jurisdiction only over waters. 33 U. S. C.
1362(7). The only natural definition of the term waters, [clear] evidence from
other provisions of the statute, and this Courts canons of construction all confirm
that the waters of the United States in 1362(7) cannot bear the expansive
meaning that the Corps would give it.
The Corps expansive approach might be arguable if the CSA defined navigable
waters as water of the United States. But the waters of the United States is
something else. The use of the definite article (the) and the plural number
(waters) show plainly that 1362(7) does not refer to water in general. In this
form, the waters refers more narrowly to water [a]s found in streams and bodies
forming geographical features such as oceans, rivers, [and] lakes, or the flowing or
moving masses, as of waves or floods, making up such streams or bodies. Websters
New International Dictionary 2882 (2d ed. 1954) (hereinafter Websters Second). On
this definition, the waters of the United States include only relatively permanent,
standing or flowing bodies of water. The definition refers to water as found in
streams, oceans, rivers, lakes, and bodies of water forming geographical
features. Ibid. All of these terms connote continuously present, fixed bodies of
water, as opposed to ordinarily dry channels through which water occasionally or
intermittently flows. Even the least substantial of the definitions terms, namely
streams, connotes a continuous flow of water in a permanent channelespecially
when used in company with other terms such as rivers, lakes, and oceans.
None of these terms encompasses transitory puddles or ephemeral flows of water.
The restriction of the waters of the United States to exclude channels
containing merely intermittent or ephemeral flow also accords with the
commonsense understanding of the term. In applying the definition to ephemeral
streams, wet meadows, storm sewers and culverts, directional sheet flow during
storm events, drain tiles, man-made drainage ditches, and dry arroyos in the
middle of the desert, the Corps has stretched the term waters of the United States
beyond parody. The plain language of the statute simply does not authorize this
Land Is Waters approach to federal jurisdiction.
In addition, the Acts use of the traditional phrase navigable waters (the
defined term) further confirms that it confers jurisdiction only over relatively
permanent bodies of water. The Act adopted that traditional term from its
predecessor statutes. On the traditional understanding, navigable waters included
only discrete bodies of water. For example, in The Daniel Ball, we used the terms
waters and rivers interchangeably. . . . Plainly, because such waters had to be
navigable in fact or susceptible of being rendered so, the term did not include
ephemeral flows. . . . [I]t is one thing to give a word limited effect and quite another
to give it no effect whatever. That limited effect includes, at bare minimum, the
ordinary presence of water. . . .

93
Most significant of all, the CWA itself categorizes the channels and conduits
that typically carry intermittent flows of water separately from navigable waters,
by including them in the definition of point source. The Act defines point
source as any discernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation, or vessel or other floating
craft, from which pollutants are or may be discharged. 33 U. S. C. 1362(14). It also
defines discharge of a pollutant as any addition of any pollutant to navigable
waters from any point source. 1362(12)(A) (emphases added). The definitions thus
conceive of point sources and navigable waters as separate and distinct
categories. The definition of discharge would make little sense if the two
categories were significantly overlapping. The separate classification of ditch[es],
channel[s], and conduit[s]which are terms ordinarily used to describe the
watercourses through which intermittent waters typically flowshows that these
are, by and large, not waters of the United States. . . .
Even if the phrase the waters of the United States were ambiguous as applied
to intermittent flows, our own canons of construction would establish that the
Corps interpretation of the statute is impermissible. [The] Governments expansive
interpretation would result in a significant impingement of the States traditional
and primary power over land and water use. Regulation of land use [is] a
quintessential state and local power. The extensive federal jurisdiction urged by the
Government would authorize the Corps to function as a de facto regulator of
immense stretches of intrastate landan authority the agency has shown its
willingness to exercise with the scope of discretion that would befit a local zoning
board. We ordinarily expect a clear and manifest statement from Congress to
authorize an unprecedented intrusion into traditional state authority. The phrase
the waters of the United States hardly qualifies.
Likewise, [the] Corps interpretation stretches the outer limits of Congresss
commerce power and raises difficult questions about the ultimate scope of that
power. Even if the term the waters of the United States were ambiguous as
applied to channels that sometimes host ephemeral flows of water (which it is not),
we would expect a clearer statement from Congress to authorize an agency theory of
jurisdiction that presses the envelope of constitutional validity. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S.
568, 575 (1988).
In sum, on its only plausible interpretation, the phrase the waters of the
United States includes only those relatively permanent, standing or continuously
flowing bodies of water forming geographic features that are described in ordinary
parlance as streams[,] oceans, rivers, [and] lakes. See Websters Second 2882.
The phrase does not include channels through which water flows intermittently or
ephemerally, or channels that periodically provide drainage for rainfall. The Corps
expansive interpretation of the the waters of the United States is thus not based
on a permissible construction of the statute.. . .

94
V
[R]espondents and many amici admonish that narrowing the definition of the
waters of the United States will hamper federal efforts to preserve the Nations
wetlands. It is not clear that the state and local conservation efforts that the CWA
explicitly calls for are in any way inadequate for the goal of preservation. In any
event, a Comprehensive National Wetlands Protection Act is not before us, and the
wis[dom] of such a statute, is beyond our ken. What is clear, however, is that
Congress did not enact one when it granted the Corps jurisdiction over only the
waters of the United States.
VI
In an opinion long on praise of environmental protection and notably short on
analysis of the statutory text and structure, the dissent would hold that the waters
of the United States include any wetlands adjacent (no matter how broadly
defined) to tributaries (again, no matter how broadly defined) of traditional
navigable waters. For legal support of its policy-laden conclusion, the dissent relies
[on] Congress deliberate acquiescence in the Corps regulations in 1977. [This] is
demonstrably inadequate to support the apparently limitless scope that the dissent
would permit the Corps to give to the Act. . . .
[We have] asserted in no uncertain terms our oft-expressed skepticism towards
reading the tea leaves of congressional inaction:
Although we have recognized congressional acquiescence to
administrative interpretations of a statute in some situations, we have done
so with extreme care. Failed legislative proposals are a particularly
dangerous ground on which to rest an interpretation of a prior statute.
The relationship between the actions and inactions of the 95th Congress
and the intent of the 92d Congress in passing [1344(a)] is also considerably
attenuated. Because subsequent history is less illuminating than the
contemporaneous evidence, respondents face a difficult task in overcoming
the plain text and import of [1344(a)]. Solid Waste Agency of Northern
Cook County v. U..S. Army Corps of Eng'rs, 531 U. S. 159, 169 (2001).
Congress takes no governmental action except by legislation. What the dissent
refers to as Congress deliberate acquiescence should more appropriately be called
Congresss failure to express any opinion. We have no idea whether the Members
failure to act in 1977 was attributable to their belief that the Corps regulations
were correct, or rather to their belief that the courts would eliminate any excesses,
or indeed simply to their unwillingness to confront the environmental lobby. . . .
Finally, we could not agree more with the dissents statement, that [w]hether
the benefits of particular conservation measures outweigh their costs is a classic
question of public policy that should not be answered by appointed judges. Neither,
however, should it be answered by appointed officers of the Corps of Engineers in
contradiction of congressional direction. It is the dissents opinion, and not ours,
which appeals not to a reasonable interpretation of enacted text, but to the great
95
environmental benefits that a patently unreasonable interpretation can achieve. We
have begun our discussion by mentioning, to be sure, the high costs imposed by that
interpretationbut they are in no way the basis for our decision, which rests,
plainly and simply, upon the limited meaning that can be borne by the phrase
waters of the United States. . . .
VII
JUSTICE KENNEDYs opinion concludes that our reading of the Act is
inconsistent with its text, structure, and purpose. His own opinion, however, leaves
the Acts text and structure virtually unaddressed. . . . One would think, after
reading JUSTICE KENNEDYs exegesis, that the crucial provision of the text of the
CWA was a jurisdictional requirement of significant nexus between wetlands and
navigable waters. In fact, however, that phrase appears nowhere in the Act. . . . Our
interpretation of the phrase is [consistent] with what the Act does establish as the
jurisdictional criterion: waters of the United States. Wetlands are waters of the
United States if they bear the significant nexus of physical connection, which
makes them as a practical matter indistinguishable from waters of the United
States. What other nexus could conceivably cause them to be waters of the United
States? JUSTICE KENNEDYs test is that they, either alone or in combination with
similarly situated lands in the region, significantly affect the chemical, physical,
and biological integrity of other covered waters more readily understood as
navigable. But what possible linguistic usage would accept that whatever (alone
or in combination) affects waters of the United States is waters of the United
States?
Only by ignoring the text of the statute [does] JUSTICE KENNEDY reach the
conclusion he has arrived at. Instead of limiting its meaning by reference to the text
it was applying, he purports to do so by reference to what he calls the purpose of
the statute. Its purpose is to clean up the waters of the United States, and therefore
anything that might significantly affect the purity of those waters bears a
significant nexus to those waters, and thus (he never says this, but the text of the
statute demands that he mean it) is those waters. This is the familiar tactic of
substituting the purpose of the statute for its text, freeing the Court to write a
different statute that achieves the same purpose. [But] clean water is not the only
purpose of the statute. So is the preservation of primary state responsibility for
ordinary land-use decisions. 33 U. S. C. 1251(b). JUSTICE KENNEDYs test takes no
account of this purpose. More fundamentally, however, the test simply rewrites the
statute, using for that purpose the gimmick of significant nexus. It would have
been an easy matter for Congress to give the Corps jurisdiction over all wetlands
(or, for that matter, all dry lands) that significantly affect the chemical, physical,
and biological integrity of waters of the United States. It did not do that, but
instead explicitly limited jurisdiction to waters of the United States.. . .
VIII

96
We vacate the judgments of the Sixth Circuit [and] remand for further
proceedings.
It is so ordered.

JUSTICE KENNEDY, concurring in the judgment.


[This case] requires the Court to decide whether the term navigable waters in
the Clean Water Act extends to wetlands that do not contain and are not adjacent to
waters that are navigable in fact. . . .
The objective of the Clean Water Act (Act), is to restore and maintain the
chemical, physical, and biological integrity of the Nations waters. 33 U. S. C.
1251(a). To that end, the statute, among other things, prohibits the discharge of
any pollutant by any person except as provided in the Act. 1311(a). As relevant
here, the term discharge of a pollutant means any addition of any pollutant to
navigable waters from any point source. 1362(12). . . .
The statutory term to be interpreted and applied in [this case] is the term
navigable waters. The outcome turns on whether that phrase reasonably describes
certain Michigan wetlands the Corps seeks to regulate. Under the Act [t]he term
navigable waters means the waters of the United States. . . . 1362(7). In a
regulation the Corps has construed the term waters of the United States to
include not only waters susceptible to use in interstate commercethe traditional
understanding of the term navigable waters of the United States, see, e.g., The
Daniel Ball, 77 U.S. 557 (1871)but also tributaries of those waters and, of
particular relevance here, wetlands adjacent to those waters or their tributaries. 33
CFR 328.3(a)(1), (5), (7) (2005). . . .
Contrary to the pluralitys description, wetlands are not simply moist patches of
earth. They are defined as those areas that are inundated or saturated by surface
or ground water at a frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation typically adapted for
life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs,
and similar areas. 328.3(b). The Corps Wetlands Delineation Manual, including
over 100 pages of technical guidance for Corps officers, interprets this definition of
wetlands to require: (1) prevalence of plant species typically adapted to saturated
soil conditions, determined in accordance with the United States Fish and Wildlife
Services National List of Plant Species that Occur in Wetlands; (2) hydric soil,
meaning soil that is saturated, flooded, or ponded for sufficient time during the
growing season to become anaerobic, or lacking in oxygen, in the upper part; and (3)
wetland hydrology, a term generally requiring continuous inundation or saturation
to the surface during at least five percent of the growing season in most years.
Under the Corps regulations, wetlands are adjacent to tributaries, and thus
covered by the Act, even if they are separated from other waters of the United
States by man-made dikes or barriers, natural river berms, beach dunes and the
like. 328.3(c). . . .

97
The pluralitys opinion begins from a correct premise. As the plurality points
out, [in] enacting the Clean Water Act Congress intended to regulate at least some
waters that are not navigable in the traditional sense. This conclusion is supported
by the evident breadth of congressional concern for protection of water quality and
aquatic ecosystems. It is further compelled by statutory text, for the text is explicit
in extending the coverage of the Act to some nonnavigable waters. . . .
From this reasonable beginning the plurality proceeds to impose two limitations
on the Act; but these limitations, it is here submitted, are without support in the
language and purposes of the Act. . . . First, because the dictionary defines waters
to mean water [a]s found in streams and bodies forming geographical features
such as oceans, rivers, [and] lakes, or the flowing or moving masses, as of waves or
floods, making up such streams or bodies, (quoting Websters New International
Dictionary 2882 (2d ed. 1954) (hereinafter Websters Second)), the plurality would
conclude that the phrase navigable waters permits Corps and EPA jurisdiction
only over relatively permanent, standing or flowing bodies of water,a category
that in the pluralitys view [excludes] intermittent or ephemeral streams. Second,
the plurality asserts that wetlands fall within the Act only if they bear a
continuous surface connection to bodies that are waters of the United States in
their own rightwaters, that is, that satisfy the pluralitys requirement of
permanent standing water or continuous flow.
The pluralitys first requirementpermanent standing water or continuous flow
. . . makes little practical sense in a statute concerned with downstream water
quality. The merest trickle, if continuous, would count as a water subject to
federal regulation, while torrents thundering at irregular intervals through
otherwise dry channels would not. . . . To be sure, Congress could draw a line to
exclude irregular waterways, but nothing in the statute suggests it has done so.
Quite the opposite, a full reading of the dictionary definition precludes the
pluralitys emphasis on permanence: The term waters may mean flood or
inundation, Websters Second 2882, events that are impermanent by definition.
Thus, although of course the Acts use of the adjective navigable indicates a focus
on waterways rather than floods, Congress use of waters instead of water does
not necessarily carry the connotation of relatively permanent, standing or flowing
bodies of water. [In] any event, even granting the pluralitys preferred definition
that waters means water [a]s found in streams and bodies forming geographical
features such as oceans, rivers, [and] lakes, (quoting Websters Second 2882)the
dissent is correct to observe that an intermittent flow can constitute a stream, in
the sense of a current or course of water or other fluid, flowing on the earth,
(quoting Websters Second 2493), while it is flowing. It follows that the Corps can
reasonably interpret the Act to cover the paths of such impermanent streams. . . .
Also incorrect is the pluralitys attempt to draw support from the statutory
definition of point source as any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, or vessel or

98
other floating craft, from which pollutants are or may be discharged. 33 U. S. C.
1362(14). This definition is central to the Acts regulatory structure, for the term
discharge of a pollutant is defined in relevant part to mean any addition of any
pollutant to navigable waters from any point source, 1362(12). Interpreting the
point-source definition, the plurality presumes, first, that the point-source examples
describe watercourses through which intermittent waters typically flow, and
second, that point sources and navigable waters are separate and distinct
categories. From this the plurality concludes, by a sort of negative inference, that
navigable waters may not be intermittent. The conclusion is unsound. Nothing in
the point-source definition requires an intermittent flow. Polluted water could flow
night and day from a pipe, channel, or conduit and yet still qualify as a point source;
any contrary conclusion would likely exclude, among other things, effluent streams
from sewage treatment plants. As a result, even were the statute read to require
continuity of flow for navigable waters, certain water-bodies could conceivably
constitute both a point source and a water. At any rate, as the dissent observes, the
fact that point sources may carry continuous flow undermines the pluralitys
conclusion that covered waters under the Act may not be discontinuous.
The pluralitys second limitationexclusion of wetlands lacking a continuous
surface connection to other jurisdictional watersis also unpersuasive. [The]
question is what circumstances permit a bog, swamp, or other nonnavigable
wetland to constitute a navigable water under the Actas 1344(g)(1), if nothing
else, indicates is sometimes possible. . . .
In sum the pluralitys opinion is inconsistent with the Acts text, structure,
and purpose. As a fallback the plurality suggests that avoidance canons would
compel its reading even if the text were unclear. [The plurality argues that the
Corps approach would raise significant questions of Commerce Clause authority
and encroach on traditional state land-use regulation. [But] the pluralitys
interpretation does not fit the avoidance concerns it raises. On the one hand, when
a surface-water connection is lacking, the plurality forecloses jurisdiction over
wetlands that abut navigable-in-fact waterseven though such navigable waters
were traditionally subject to federal authority. On the other hand, by saying the Act
covers wetlands (however remote) possessing a surface-water connection with a
continuously flowing stream (however small), the pluralitys reading would permit
applications of the statute as far from traditional federal authority as are the
waters it deems beyond the statutes reach. Even assuming, then, that federal
regulation of remote wetlands and nonnavigable waterways would raise a difficult
Commerce Clause issue notwithstanding those waters aggregate effects on national
water quality, the pluralitys reading is not responsive to this concern. As for States
responsibilities and rights, 1251(b), it is noteworthy that 33 States plus the
District of Columbia have filed an amici brief in this litigation asserting that the
Clean Water Act is important to their own water policies. See Brief for States of
New York et al. 13. These amici note, among other things, that the Act protects
downstream States from out-of-state pollution that they cannot themselves
regulate.
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It bears mention also that the pluralitys overall tone and approach . . . seems
unduly dismissive of the interests asserted by the United States in these cases.
Important public interests are served by the Clean Water Act in general and by the
protection of wetlands in particular. To give just one example, amici here have
noted that nutrient-rich runoff from the Mississippi River has created a hypoxic, or
oxygen-depleted, dead zone in the Gulf of Mexico that at times approaches the size
of Massachusetts and New Jersey. Brief for Association of State Wetland Managers
et al. 2123; Brief for Environmental Law Institute 23. Scientific evidence indicates
that wetlands play a critical role in controlling and filtering runoff. It is true, as the
plurality indicates, that environmental concerns provide no reason to disregard
limits in the statutory text, but in my view the pluralitys opinion is not a correct
reading of the text. The limits the plurality would impose, moreover, give
insufficient deference to Congress purposes in enacting the Clean Water Act and to
the authority of the Executive to implement that statutory mandate. . . .
* * * * *
While the plurality reads nonexistent requirements into the Act, the dissent
reads a central requirement outnamely, the requirement that the word
navigable in navigable waters be given some importance. [The] dissent would
permit federal regulation whenever wetlands lie alongside a ditch or drain, however
remote and insubstantial, that eventually may flow into traditional navigable
waters. The deference owed to the Corps interpretation of the statute does not
extend so far.
Congress choice of words creates difficulties, for the Act contemplates
regulation of certain navigable waters that are not in fact navigable. Nevertheless,
the word navigable in the Act must be given some effect. [Consistent] with the
need to give the term navigable some meaning, the Corps jurisdiction over
wetlands depends upon the existence of a significant nexus between the wetlands in
question and navigable waters in the traditional sense. The required nexus must be
assessed in terms of the statutes goals and purposes. Congress enacted the law to
restore and maintain the chemical, physical, and biological integrity of the Nations
waters, 33 U. S. C. 1251(a), and it pursued that objective by restricting dumping
and filling in navigable waters, 1311(a), 1362(12). With respect to wetlands, the
rationale for Clean Water Act regulation is, as the Corps has recognized, that
wetlands can perform critical functions related to the integrity of other waters
functions such as pollutant trapping, flood control, and runoff storage. Accordingly,
wetlands possess the requisite nexus, and thus come within the statutory phrase
navigable waters, if the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical, physical, and
biological integrity of other covered waters more readily understood as navigable.
When, in contrast, wetlands effects on water quality are speculative or
insubstantial, they fall outside the zone fairly encompassed by the statutory term
navigable waters.. . .

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As applied to wetlands adjacent to navigable-in-fact waters, the Corps
conclusive standard for jurisdiction rests upon a reasonable inference of ecologic
interconnection, and the assertion of jurisdiction for those wetlands is sustainable
under the Act by showing adjacency alone. [Through] regulations or adjudication,
the Corps may choose to identify categories of tributaries that, due to their volume
of flow (either annually or on average), their proximity to navigable waters, or other
relevant considerations, are significant enough that wetlands adjacent to them are
likely, in the majority of cases, to perform important functions for an aquatic system
incorporating navigable waters. The Corps existing standard for tributaries,
however, provides no such assurance. . . .
I would vacate the judgment of the Court of Appeals and remand for
consideration whether the specific wetlands at issue possess a significant nexus
with navigable waters.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE
BREYER join, dissenting.
The narrow question presented [is] whether wetlands adjacent to tributaries of
traditionally navigable waters are waters of the United States subject to the
jurisdiction of the Army Corps. . . . The broader question is whether regulations that
have protected the quality of our waters for decades, that were implicitly approved
by Congress, and that have been repeatedly enforced in case after case, must now
be revised in light of the creative criticisms voiced by the plurality and JUSTICE
KENNEDY today. Rejecting more than 30 years of practice by the Army Corps, the
plurality disregards the nature of the congressional delegation to the agency and
the technical and complex character of the issues at stake. JUSTICE KENNEDY
similarly fails to defer sufficiently to the Corps, though his approach is far more
faithful [to] principles of statutory interpretation than is the pluralitys.
In my view, the proper analysis is straightforward. The Army Corps has
determined that wetlands adjacent to tributaries of traditionally navigable waters
preserve the quality of our Nations waters by, among other things, providing
habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of
adjacent waters, and reducing downstream flooding by absorbing water at times of
high flow. The Corps resulting decision to treat these wetlands as encompassed
within the term waters of the United States is a quintessential example of the
Executives reasonable interpretation of a statutory provision. . . .
I
. . . The cases before us today concern wetlands that are adjacent to navigable
bodies of water [or] their tributaries. Specifically, these wetlands abut tributaries
of traditionally navigable waters. The Corps has concluded that such wetlands play
important roles in maintaining the quality of their adjacent waters, and
consequently in the waters downstream. Among other things, wetlands can offer
nesting, spawning, rearing and resting sites for aquatic or land species; serve as
valuable storage areas for storm and flood waters; and provide significant water
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purification functions. [Given] that wetlands serve these important water quality
roles and given the ambiguity inherent in the phrase waters of the United States,
the Corps has reasonably interpreted its jurisdiction to cover non-isolated wetlands.
This conclusion is [confirmed] by Congress deliberate acquiescence in the
Corps regulations in 1977. Both Chambers conducted extensive debates about the
Corps regulatory jurisdiction over wetlands, rejected efforts to limit this
jurisdiction, and appropriated funds for a National Wetlands Inventory to help
the States in the development and operation of programs under this Act.. . .
The Corps exercise of jurisdiction is reasonable even though not every
wetland adjacent to a traditionally navigable water or its tributary will perform all
(or perhaps any) of the water quality functions generally associated with wetlands.
[Jurisdiction] does not depend on a wetland-by-wetland inquiry. Instead, it is
enough that wetlands adjacent to tributaries generally have a significant nexus to
the watersheds water quality. If a particular wetland is not significantly
intertwined with the ecosystem of adjacent waterways, then the Corps may allow
its development simply by issuing a permit.. . .
Seemingly alarmed by the costs involved, the plurality shies away from
[recognition] that jurisdiction is not a case-by-case affair. I do not agree with the
pluralitys assumption that the costs of preserving wetlands are unduly high. It is
true that the cost of 404 permits are high for those who must obtain thembut
these costs amount to only a small fraction of 1% of the $760 billion spent each year
on private and public construction and development activity. More significant than
the pluralitys exaggerated concern about costs, however, is the fact that its
omission of any discussion of the benefits that the regulations at issue have
produced sheds a revelatory light on the quality (and indeed the impartiality) of its
cost-benefit analysis. The importance of wetlands for water quality is hard to
overstate. See, e.g., U. S. Congress, Office of Technology Assessment, Wetlands:
Their Use and Regulation. Unsurprisingly, the Corps approach has the
overwhelming endorsement of numerous amici curiae, including 33 States. . . .
In final analysis, however, concerns about the appropriateness of the Corps
30-year implementation of the Clean Water Act should be addressed to Congress or
the Corps rather than to the Judiciary. Whether the benefits of particular
conservation measures outweigh their costs is a classic question of public policy that
should not be answered by appointed judges. The fact that large investments are
required to finance large developments merely means that those who are most
adversely affected by the Corps permitting decisions are persons who have the
ability to communicate effectively with their representatives. Unless and until they
succeed in convincing Congress (or the Corps) that clean water is less important
today than it was in the 1970s, we continue to owe deference to regulations
satisfying the evident breadth of congressional concern for protection of water
quality and aquatic ecosystems.. . .

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III
[The] pluralitys creative opinion is utterly unpersuasive. The plurality imposes
two novel conditions on the exercise of the Corps jurisdiction that can only muddy
the jurisdictional waters. As JUSTICE KENNEDY observes, these limitations . . . are
without support in the language and purposes of the Act. The impropriety of
crafting these new conditions is highlighted by the fact that no party or amicus has
suggested either of them.
First, ignoring the importance of preserving jurisdiction over water beds that
are periodically dry, the plurality imposes a requirement that only tributaries with
the relatively permanent presence of water fall within the Corps jurisdiction.
Under the pluralitys view, then, the Corps can regulate polluters who dump dredge
into a stream that flows year round but may not be able to regulate polluters who
dump into a neighboring stream that flows for only 290 days of the yeareven if
the dredge in this second stream would have the same effect on downstream waters
as the dredge in the year-round one.
To find this arbitrary distinction compelled by the statute, the plurality cites
a dictionary for a proposition that it does not contain. The dictionary treats
streams as waters but has nothing to say about whether streams must contain
water year round to qualify as streams. (Citing Websters New International
Dictionary 2493 (2d ed. 1954). From this, the plurality somehow deduces that
streams can never be intermittent or ephemeral (i.e., flowing for only part of the
year). But commonsense and common usage demonstrate that intermittent streams,
like perennial streams, are still streams. This was true well before the passage of
the Act in 1972. E.g., Websters Third New International Dictionary 1180 (1961)
(hereinafter Websters Third) (linking intermittent with stream). Indeed, we
ourselves have used the term intermittent stream as far back as 1932.
Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 335 (1933). . . .
The plurality attempts to bolster its arbitrary jurisdictional line by citing two
tangential statutory provisions and two inapplicable canons of construction. None
comes close to showing that Congress directly spoke to whether waters requires
the relatively permanent presence of water.
The first provision relied on by the pluralitythe definition of point source
in 33 U. S. C. 1362(14)has no conceivable bearing on whether permanent
tributaries should be treated differently from intermittent ones, since pipe[s],
ditch[es], channel[s], tunnel[s], conduit[s], [and] well[s] can all hold water
permanently as well as intermittently. The second provision is 1251(b), which
announces a congressional policy to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent pollution, to plan development, and
to consult with the EPA. Under statutory additions made in 1977 when Congress
considered and declined to alter the Corps interpretation of its broad regulatory
jurisdiction, the States may run their own 404 programs. 1344(g)(h). As

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modified, 1251(b) specifically recognizes this role for the States as part of their
primary responsibility for preventing water pollution. . . .
The two canons of construction relied on by the plurality similarly fail to
overcome the deference owed to the Corps. First, the plurality claims that concerns
about intruding on state power to regulate land use compel the conclusion that the
phrase waters of the United States does not cover intermittent streams. As we
have recognized, however, Congress found it essential that discharge of pollutants
be controlled at the source, [quoting S. Rep. No. 92414, p. 77 (1972)], and the
Corps can define waters broadly to accomplish this aim. Second, the plurality
suggests that the canon of constitutional avoidance applies because the Corps
approach might exceed the limits of our Commerce Clause authority. [Such] a
concern [is] plainly not warranted here. The wetlands in these cases are not
isolated but instead are adjacent to tributaries of traditionally navigable waters
and play important roles in the watershed, such as keeping water out of the
tributaries or absorbing water from the tributaries. There is no constitutional
reason why Congress cannot, under the commerce power, treat the watersheds as a
key to flood control on navigable streams and their tributaries. Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 525 (1941).
Most importantly, the plurality disregards the fundamental significance of
the Clean Water Act. As then-Justice Rehnquist explained when writing for the
Court in 1981, the Act was not merely another law but rather was viewed by
Congress as a total restructuring and complete rewriting of the existing water
pollution legislation. Milwaukee v. Illinois, 451 U. S. 304 (1981). Congress intent
in enacting the [Act] was clearly to establish an all-encompassing program of water
pollution regulation, and the most casual perusal of the legislative history
demonstrates that . . . views on the comprehensive nature of the legislation were
practically universal. Id., at 318. The Corps has concluded that it must regulate
pollutants at the time they enter ditches or streams with ordinary high-water
markswhether perennial, intermittent, or ephemeralin order to properly control
water pollution. Because there is ambiguity in the phrase waters of the United
States and because interpreting it broadly to cover such ditches and streams
advances the purpose of the Act, the Corps approach should command our
deference. Intermittent streams can carry pollutants just as perennial streams can,
and their regulation may prove as important for flood control purposes. The
inclusion of all identifiable tributaries that ultimately drain into large bodies of
water within the mantle of federal protection is surely wise.
The pluralitys second statutory invention is as arbitrary as its first.
Trivializing the significance of changing conditions in wetlands environments, the
plurality imposes a separate requirement that the wetland has a continuous
surface connection with its abutting waterway such that it is difficult to determine
where the water ends and the wetland begins. An intermittent, physically
remote hydrologic connection between the wetland and other waters is not enough.
Under this view, wetlands that border traditionally navigable waters or their

104
tributaries and perform the essential function of soaking up overflow waters during
hurricane seasonthus reducing flooding downstreamcan be filled in by
developers with impunity, as long as the wetlands lack a surface connection with
the adjacent waterway the rest of the year.
The plurality begins reasonably enough by recognizing that the Corps may
appropriately regulate all wetlands adjacent to other waters. This recognition is
wise, since the statutory text clearly accepts this standard. Title 33 U. S. C.
1344(g)(1), added in 1977, includes adjacent wetlands in its description of
waters and thus expressly stated that the term waters included adjacent
wetlands.. . .
The plurality goes on, however, to define adjacent to as meaning with a
continuous surface connection to other water. It is unclear how the plurality
reached this conclusion, though it plainly neglected to consult a dictionary. Even its
preferred Websters Second defines the term as [l]ying near, close, or contiguous;
neighboring; bordering on and acknowledges that [o]bjects are ADJACENT when
they lie close to each other, but not necessarily in actual contact. Websters Second
32 (emphasis added. In any event, the proper question is not how the plurality
would define adjacent, but whether the Corps definition is reasonable.
The Corps defines adjacent as bordering, contiguous, or neighboring, and
specifies that [w]etlands separated from other waters of the United States by man-
made dikes or barriers, natural river berms, beach dunes and the like are adjacent
wetlands. This definition is plainly reasonable, both on its face and in terms of the
purposes of the Act. While wetlands that are physically separated from other waters
may perform less valuable functions, this is a matter for the Corps to evaluate in its
permitting decisions. . . .
V
Congress passed the Clean Water Act in response to wide-spread
recognitionbased on events like the 1969 burning of the Cuyahoga River in
Clevelandthat our waters had become appallingly polluted. The Act has largely
succeeded in restoring the quality of our Nations waters. Where the Cuyahoga
River was once coated with industrial waste, [t]oday, that location is lined with
restaurants and pleasure boatslips. By curtailing the Corps jurisdiction of more
than 30 years, the plurality needlessly jeopardizes the quality of our waters. In
doing so, the plurality disregards the deference it owes the Executive, the
congressional acquiescence in the Executives position, and its own obligation to
interpret laws rather than to make them. While JUSTICE KENNEDYs approach has
far fewer faults, nonetheless it also fails to give proper deference to the agencies
entrusted by Congress to implement the Clean Water Act.
I respectfully dissent from the decision of five Members of this Court to
vacate and remand. I close, however, by noting an unusual feature of the Courts
judgment in these this case. It has been our practice in a case coming to us from a
lower federal court to enter a judgment commanding that court to conduct any

105
further proceedings pursuant to a specific mandate. That prior practice has, on
occasion, made it necessary for Justices to join a judgment that did not conform to
their own views. In this case, however, while both the plurality and JUSTICE
KENNEDY agree that there must be a remand for further proceedings, their
respective opinions define different tests to be applied on remand. Given that all
four Justices who have joined this opinion would uphold the Corps jurisdiction in
both of these casesand in all other cases in which either the pluralitys or JUSTICE
KENNEDYs test is satisfiedon remand each of the judgments should be reinstated
if either of those tests is met.

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PART IV

THE PROBLEM OF PROOF

I. BAD CHARACTER

Defendant is accused of beating Victim to death with a tire iron. Defendant maintains that he was at
home asleep at the time of Victims death. The prosecutor wants to present evidence that the defendant
has three prior convictions for violent assault.

Should the evidence be admissible?

PEOPLE OF THE STATE OF NEW YORK V. JOSEPH ZACKOWITZ

Court of Appeals of New York

254 NY 192 (1930)


CARDOZO, Ch. J.
On November 10, 1929, shortly after midnight, the defendant shot Frank
Coppola and killed him without justification or excuse. A crime is admitted. What is
doubtful is the degree only.
Four young men, of whom Coppola was one, were at work repairing an
automobile in a Brooklyn street. A woman, the defendant's seventeen-year-old wife
Fluff, walked by on the opposite side. One of the men spoke to her insultingly, or
so at least she understood him. The twenty-four-year-old defendant, who had
dropped behind to buy a newspaper, came up to find his wife in tears. He was told
she had been insulted, though she did not then repeat the words. Enraged, he stepped
across the street and upbraided the offenders with words of coarse profanity. He
informed them, so the survivors testify, that if they did not get out of there in five
minutes, he would come back and bump them all off.
Rejoining his wife, he walked with her to their apartment house located close at
hand. He was heated with liquor which he had been drinking at a dance. Within the
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apartment he induced her to tell him what the insulting words had been. A youth had
asked her to lie with him, and had offered her two dollars. With rage aroused again,
the defendant went back to the scene of the insult and found the four young men still
working at the car. In a statement to the police, he said that he had armed himself at
the apartment with a twenty-five calibre automatic pistol. In his testimony at the trial
he said that this pistol had been in his pocket all the evening. Words and blows
followed, and then a shot. The defendant kicked Coppola in the stomach. There is
evidence that Coppola went for him with a wrench. The pistol came from the pocket,
and from the pistol a single shot, which did its deadly work. The defendant walked
away and at the corner met his wife who had followed him from the home. The two
took a taxicab to Manhattan where they spent the rest of the night at the dwelling of a
friend. On the way the defendant threw his pistol into the river. He was arrested on
January 7, 1930, about two months following the crime.
At the trial the vital question was the defendant's state of mind at the moment of
the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he
so inflamed by drink or by anger or by both combined that, though he knew the
nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment?
(People v. Caruso, 246 N. Y. 437, 446). If he went forth from his apartment with a
preconceived design to kill, how is it that he failed to shoot at once? How reconcile
such a design with the drawing of the pistol later in the heat and rage of an affray?
These and like questions the jurors were to ask themselves and answer before
measuring the defendant's guilt. Answers consistent with guilt in its highest grade can
reasonably be made. Even so, the line between impulse and deliberation is too narrow
and elusive to make the answers wholly clear. . . . With only the rough and ready tests
supplied by their experience of life, the jurors were to look into the workings of
another's mind, and discover its capacities and disabilities, its urges and inhibitions, in
moments of intense excitement. Delicate enough and subtle is the inquiry, even in the
most favorable conditions, with every warping influence excluded. There must be no
blurring of the issues by evidence illegally admitted and carrying with it in its
admission an appeal to prejudice and passion.
Evidence charged with that appeal was, we think, admitted here. Not only was it
admitted, but the changes were rung upon it by prosecutor and judge. Almost at the
opening of the trial the People began the endeavor to load the defendant down with
the burden of an evil character. He was to be put before the jury as a man of
murderous disposition. To that end they were allowed to prove that at the time of the
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encounter and at that of his arrest he had in his apartment, kept there in a radio box,
three pistols and a tear-gas gun. There was no claim that he had brought these
weapons out at the time of the affray, no claim that with any of them he had
discharged the fatal shot. He could not have done so, for they were all of different
calibre. The end to be served by laying the weapons before the jury was something
very different. The end was to bring persuasion that here was a man of vicious and
dangerous propensities, who because of those propensities was more likely to kill with
deliberate and premeditated design than a man of irreproachable life and amiable
manners. Indeed, this is the very ground on which the introduction of the evidence is
now explained and defended. The District Attorney tells us in his brief that the
possession of the weapons characterized the defendant as a desperate type of
criminal, a person criminally inclined. The dissenting opinion, if it puts the
argument less bluntly, leaves the substance of the thought unchanged. Defendant
was presented to the jury as a man having dangerous weapons in his possession,
making a selection therefrom and going forth to put into execution his threats to kill.
The weapons were not brought by the defendant to the scene of the encounter. They
were left in his apartment where they were incapable of harm. In such circumstances,
ownership of the weapons, if it has any relevance at all, has relevance only as
indicating a general disposition to make use of them thereafter, and a general
disposition to make use of them thereafter is without relevance except as indicating a
desperate type of criminal, a criminal affected with a murderous propensity. . . .
If a murderous propensity may be proved against a defendant as one of the
tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental
importance for the protection of the innocent, must be first declared away.
Fundamental hitherto has been the rule that character is never an issue in a criminal
prosecution unless the defendant chooses to make it one (Wigmore, Evidence, vol. 1,
55, 192). In a very real sense a defendant starts his life afresh when he stands
before a jury, a prisoner at the bar. There has been a homicide in a public place. The
killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law
has set its face against the endeavor to fasten guilt upon him by proof of character or
experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, 57, 192;
People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it
has failed. . . . The principle back of the exclusion is one, not of logic, but of policy.
There may be cogency in the argument that a quarrelsome defendant is more likely to
start a quarrel than one of milder type, a man of dangerous mode of life more likely

109
than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to
the innocent if character is accepted as probative of crime. The natural and inevitable
tendency of the tribunal whether judge or jury is to give excessive weight to the
vicious record of crime thus exhibited, and either to allow it to bear too strongly on
the present charge, or to take the proof of it as justifying a condemnation irrespective
of guilt of the present charge (Wigmore, Evidence, vol. 1, 194, and cases cited).
A different question would be here if the pistols had been bought in expectation
of this particular encounter. They would then have been admissible as evidence of
preparation and design (Wigmore, Evidence, vol. 1, 238; People v. Scott, 153 N. Y. 40).
A different question would be here if they were so connected with the crime as to
identify the perpetrator, if he had dropped them, for example, at the scene of the
affray (People v. Hill, 198 N. Y. 64). They would then have been admissible as tending
to implicate the possessor (if identity was disputed), no matter what the opprobrium
attached to his possession. Different, also, would be the question if the defendant had
been shown to have gone forth from the apartment with all the weapons on his
person. To be armed from head to foot at the very moment of an encounter may be a
circumstance worthy to be considered, like acts of preparation generally, as a proof of
preconceived design. There can be no such implication from the ownership of
weapons which one leaves behind at home.
The endeavor was to generate an atmosphere of professional criminality. It was an
endeavor the more unfair in that, apart from the suspicion attaching to the possession
of these weapons, there is nothing to mark the defendant as a man of evil life. He was
not in crime as a business. He did not shoot as a bandit shoots in the hope of
wrongful gain. He was engaged in a decent calling, an optician regularly employed,
without criminal record, or criminal associates. If his own testimony be true, he had
gathered these weapons together as curios, a collection that interested and amused
him. Perhaps his explanation of their ownership is false. There is nothing stronger
than mere suspicion to guide us to an answer. Whether the explanation be false or
true, he should not have been driven by the People to the necessity of offering it.
Brought to answer a specific charge, and to defend himself against it, he was placed in
a position where he had to defend himself against another, more general and
sweeping. He was made to answer to the charge, pervasive and poisonous even if
insidious and covert, that he was a man of murderous heart, of criminal disposition. . .
.

110
The judgment of conviction should be reversed, and a new trial ordered.
POUND, J. (dissenting).
The indictment herein accuses defendant of the crime of murder in the first
degree on November 10, 1929, by shooting Frank Coppola with a revolver. . . .
Nearly two months after the killing of Coppola, the police entered defendants
home in connection with his arrest and found there concealed in a box in the radio
three revolvers and a tear-gas bomb, together with a supply of cartridges suitable for
use both in the revolvers and the bomb. Defendant had in his confession, which was
received without objection, admitted that he had these weapons in his home at the
time of the killing. . . . The People, as a part of their principal case, introduced these
articles in evidence over defendant's objection and exception. . . . The possession of
these dangerous weapons [without a license] was a separate crime. (Penal Law,
1897.) The broad question is whether it had any connection with the crime charged.
The substantial rights of the defendant must be protected. Where the penalty is death,
we must grant a new trial if justice requires it. . . .
The People may not prove against a defendant crimes not alleged in the
indictment committed on other occasions . . . unless such proof tends to establish (1)
motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan
embracing the commission of two or more crimes so related to each other that proof
of the one tends to establish the other; (5) the identity of the person charged with the
commission of the crime on trial. These exceptions are stated generally and not with
categorical precision and are not all-inclusive. (People v. Molineux, 168 N. Y. 264.). . . .
The central question is whether the evidence at issue has such a connection with the
crime charged as to be admissible. . . . If so, the fact that it constitutes another distinct
crime does not render it inadmissible. . . .
As the District Attorney argues in his brief, if defendant had been arrested at the
time of the killing and these weapons had been found on his person, the People
would not have been barred from proving the fact, and the further fact that they were
nearby in his apartment should not preclude the proof as bearing on the entire deed
of which the act charged forms a part. Defendant was presented to the jury as a man
having dangerous weapons in his possession, making a selection therefrom and going
forth to put into execution his threats to kill; not as a man of a dangerous disposition
in general, but as one who, having an opportunity to select a weapon to carry out his
threats, proceeded to do so. . . . The case would have been quite different if the
111
weapons came into defendants possession after the killing. The proof would then be
of separate crimes unconnected with the killing and its admission reversible error
under the Molineux Case (supra). . . .
The judgment of conviction should be affirmed.
LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CARDOZO, Ch. J.;
POUND, J., dissents in opinion in which CRANE and HUBBS, JJ., concur.

CONSIDER THE FOLLOWING:

Defendant is accused of beating Victim to death with a tire iron. Defendant claims self-defense and
that he struck Victim only after Victim attacked him. Defense counsel wants to present evidence that
Victim had been convicted on three separate occasions for violent assault. Should the evidence be
admissible?

Defendant is accused of murdering Victim. The prosecutor calls W to the stand to testify that the day
before Victims death Victim told W that he (Victim) had seen Defendant rape X. Should the
evidence be admissible?

II. HEARSAY

CRAWFORD V. WASHINGTON
541 U.S. 36 (2004)

The most notorious instances of civil-law examination occurred in the great


political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir
Walter Raleigh for treason. Lord Cobham, Raleighs alleged accomplice, had
implicated him in an examination before the Privy Council and in a letter. At Raleighs
trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself:
Cobham is absolutely in the Kings mercy; to excuse me cannot avail him; by
accusing me he may hope for favour. Suspecting that Cobham would recant, Raleigh
demanded that the judges call him to appear, arguing that [t]he Proof of the
Common Law is by witness and jury: let Cobham be here, let him speak it. Call my
accuser before my face. The judges refused and, despite Raleighs protestations
112
that he was being tried by the Spanish Inquisition, the jury convicted, and Raleigh
was sentenced to death.

See http://www.youtube.com/watch?v=51IepW5AoMM

THE FEDERAL RULES OF EVIDENCE (1975)

RULE 801.
(c) Hearsay. Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.

MOORE V. UNITED STATES

429 U.S. 20 (1976)


PER CURIAM.
John David Moore, Jr., was convicted in a bench trial of possession of heroin with
intent to distribute it, in violation of 21 U.S.C. 841 (a) (1). The Court of Appeals
summarily affirmed the judgment of conviction.
In early January 1975, police officers received a tip from an informant that Moore
and others were in possession of heroin at Moores apartment. The police obtained
a search warrant and entered the apartment, where they found Moore lying face down
near a coffee table in the living room. Also present in the apartment was a woman
who was sitting on a couch in the same room. Bags containing heroin were found
both on top of and beneath the coffee table, and they were seized along with various
narcotics paraphernalia.
At trial, the prosecution adduced no evidence showing that Moore was in
possession of the heroin in the apartment in which he and the woman were found
other than his proximity to the narcotics at the time the warrant was executed and an
out-of-court statement by unidentified informant.

113
Detective Uribe testified at trial to the informants statement: A confidential
informant told me the day before the arrest that the apartment in which John David
Moore was found was Moores apartment and that Moore was in possession of
heroin. The apartment the informant identified as Moores apartment was the one
in which defendant was found with the heroin.
In adjudging Moore guilty, the trial court found that Moore had been in close
proximity to the seized heroin, that it was his apartment, and that he had, therefore,
been in possession of the contraband. In making these findings, the court expressly
relied on the statement of the informant. Defense counsel objected to the courts
reliance upon Detective Uribes testimony, which he deemed hearsay, but the judge
overruled the objection.
There can be no doubt that the informants out-of-court declaration that the
apartment in question belonged to Moore was hearsay and thus inadmissible in
evidence on the issue of Moores guilt. Introduction of this testimony deprived Moore
of the opportunity to cross-examine the informant as to exactly what he meant by
Moores apartment and what factual basis, if any, there was for believing that
Moore was a tenant or regular resident there. Moore was similarly deprived of the
chance to show that the informants recollection was erroneous or that he was not
credible. The courts reliance on this hearsay statement in determining petitioners
guilt or innocence was error.
Although the only competent evidence of Moore possession of the narcotics was
his proximity to them in an apartment in which another person was also present, and
of which he was not shown to be the tenant or even a regular resident, the Solicitor
General now argues that the error in admitting the hearsay evidence was harmless.
That is far from clear. Whether or not the evidence of proximity alone, when viewed
in the light most favorable to the prosecution, could suffice to prove beyond a
reasonable doubt that Moore was in possession of the heroin, the fact is that the trial
court did not find Moore guilty on that evidence alone.
The petition for a writ of certiorari is granted, the judgment of the Court of
Appeals is vacated, and the case is remanded to that court so it may determine
whether the wrongful admission of the hearsay evidence was harmless error.
It is so ordered. . . .

114
CONSIDER THE FOLLOWING:

Defendant is accused of murdering Victim. The prosecutor calls W to the stand to testify that the day
before Victims death Victim told W that he (Victim) had seen Defendant rape X. Should the
evidence be admissible?

Plaintiff is injured in a car accident. He claims that one consequence of the accident is that he lost the
ability to speak. Defense counsel calls W to testify that three weeks after the accident Plaintiff told
him that he (Plaintiff) had met President Obama. Plaintiffs counsel objects on grounds of hearsay.
Should the evidence be admissible?

Plaintiff sues Defendant for defamation. Plaintiff claims that defendant falsely told her (Plaintiffs)
boss that she (Plaintiff) had used cocaine at a party. Plaintiffs counsel calls Plaintiffs boss to testify
that Defendant had told him that he had seen Plaintiff use cocaine at a party. Defense counsel objects
on grounds of hearsay. Should the evidence be admissible?

HOWARD L. SILVER, administrator


v.
NEW YORK CENTRAL RAILROAD COMPANY

Supreme Judicial Court of Massachusetts, Suffolk


329 Mass. 14, 105 N.E.2d 923 (1952)

WILKINS, J.
On January 14, 1948, Frances Silver became a passenger, bound from Boston to
Cincinnati, on a train operated by the defendant railroad. The following morning the
Pullman car in which she had a berth was detached at Cleveland and stood for nearly
four hours in the yard to await connection with the next train to Cincinnati. She was
suffering from a circulatory ailment known as Raynauds disease. The temperature in
the car became too cold for her, and she experienced ill effects. Mrs. Silver, who will
be referred to as the plaintiff, brought this action against the defendant railroad. Upon
her death from a cause apparently unrelated to this case, the administrator of her
estate was substituted as party plaintiff. . . . The judge found for the plaintiff against
the railroad. . . .

115
Certain basic facts are not in dispute. The plaintiff, who was 58 years of age,
boarded the train at Boston, on January 14, 1948, at 4:50 P.M. She occupied a lower
berth in the rear car, which was the only through car to Cincinnati. The train was
scheduled to arrive in Cleveland at 6:20 A.M. the following day, but did not do so
until 8:40 A.M., too late for the intended connection for Cincinnati. This necessitated
a lay-over in Cleveland until the next train for Cincinnati, which left at 12:30 P.M. In
Cleveland the weather bureau records show that the temperature at 5:35 A.M. was
one degree below zero Fahrenheit and 26 degrees above zero at 9 P.M. The plaintiff
reached Cincinnati without further event, but because of her tendency to develop
Raynauds syndrome and the exposure to cold in Cleveland the condition of her
hands required that she be hospitalized. There was a discoloration of the right ring
finger showing an area of impending gangrene to the tip; there was demarcation of
the area of the left ring finger which was formerly occupied by a vesicle, and the tip of
the finger was gray in color and cool to touch; she complained of pain, numbness,
discoloration, and coldness of her fingers; and it was diagnosed as an obliterative
arterial disease, or, in other words, the arteries of her upper extremities were
structurally involved, causing a lack of proper circulation to the fingers. . . .
Findings as to the plaintiff's experience at Cleveland could have been based upon
statements she had made before suit was brought. She woke up about 9 A.M. because
she was cold. She rang for the porter but no one came. She was alone in the car,
which was standing in the yard and not at a platform. The station was inaccessible.
She went to the washroom and got dressed. She had to bundle up with her coat and
furs, and put on a pair of woolen gloves. She rang twice more. Still no one came. She
thought that the temperature was below freezing. She was extremely cold. She went
back into her berth. The car remained in the same condition until connected with the
Cincinnati train after 12 P.M. At that time the temperature outside was 10 to 15
degrees, and the car had been without any heat whatsoever for about three hours
with that temperature outside. . . .
As part of its obligation to furnish suitable accommodations, it is the undoubted
duty of a common carrier to provide the heat necessary for the health, comfort, and
safety of passengers during the performance of the transportation contract. 10 Am.
Jur., Carriers, 1337. 48 Am. Jur., Sleeping Car Companies, 13. 13 C.J.S., Carriers,
744, page 1398. 33 A.L.R. 168. . . .

116
We . . . turn to questions of evidence. . . . The porter in the plaintiffs car was
rightly allowed to testify as to the temperature conditions in that car. He was giving at
first hand his experience with the same conditions which confronted the plaintiff. But
he was not permitted to give evidence that eleven other passengers in that car made
no complaint to him as to the temperature while at Cleveland. This is a somewhat
different proposition, as it was sought to draw from the silence of those passengers a
deduction that the car was not too cold, otherwise they would have spoken.
In certain courts evidence of absence of complaints by customers has been
excluded on the issue of defective quality of goods sold, and the hearsay rule has been
relied upon or referred to. . . . In Menard v. Cashman, 94 N.H. 428, 433-434, which was
an action of tort arising out of a fall on an allegedly defective stairway in a business
block, it was held proper to exclude testimony of a tenant that none of her customers
had ever complained of any defects, the court saying that the testimony had the
characteristics of hearsay, and that if it was not hearsay, it was only evidence of
inconclusive silence. . . .
Evidence as to absence of complaints from customers other than the plaintiff has
been admitted in four cases, all relating to breach of warranty in the sale of food, in
this Commonwealth. In Landfield v. Albiani Lunch Co. 268 Mass. 528, for example, the
plaintiff alleged that he had been made ill by eating beans purchased at the defendant's
restaurant. Subject to his exception, evidence was admitted that on that day and on
the day preceding no complaint as to the beans was made by any other customer. In
upholding the ruling on evidence, it was said:
The fact that others than the plaintiff ate of the food complained of
without ill effects is competent evidence that it was not unwholesome. . . .
There is a reasonable inference based on common experience that one who
ate and suffered as he believed in consequence would make complaint. There
is a further reasonable inference, based on logic, that if no one complained no
one suffered.
In the case at bar, should the circumstances of the plaintiff and of the other
passengers as to exposure to the cold be shown to be substantially the same, the
negative evidence that none of the others spoke of it to the porter might properly be
admitted. The evidence would not be equivocal, and would then be offered on the
basis of a common condition which all in the car encountered. The porter's duties
should be shown to include the receipt of that sort of complaints from those

117
passengers. It should appear that he was present and available to be spoken to. . . .
This would not seem to be a situation where one might prefer to remain silent rather
than to make any statement. Indeed, if the car was too cold, ordinary prudence might
seem to require that one speak out. There would be no ambiguity of inference. . . .
Unlike the unknown users of a stairway in a business block, the uniform result of
silence in the cases of a large number of passengers, here apparently eleven, would not
be inconclusive. . . .

WRIGHT V. DOE D. TATHAM

Exchequer Chamber
112 Eng. Rep. 488 (1837)

[Action for ejectment. Plaintiffs lessor claimed as heir, defendant as devisee of


John Marsden, whose steward he had been. The case hinged upon the testamentary
capacity of Marsden. Defendant offered in evidence certain letters received by
Marsden from persons since dead. The first letter was from a cousin, describing his
voyage to America; the second from Rev. Marton asking that Marsden have his
attorney propose terms of agreement as to an undescribed matter in dispute between
Marsden and the parish; the third was a letter of gratitude from Rev. Ellershaw upon
resigned a curacy to which Marsden had appointed him. The letters were excluded
from the trial. The following is an excerpt from Baron Parkes opinion in the
Exchequer Chamber]:
PARKE, B . . . It is argued that the letters would be admissible because they are
evidence of the treatment of the testator as a competent person by individuals
acquainted with his habits and personal character; that they are more than mere
statements to a third person indicating an opinion of Marsdens competence; they are
acts done towards the testator by them, which would not have been done if he had
been incompetent, and from which, therefore, a legitimate inference may be derived
that he was so.
Each of the three letters, no doubt, indicates that in the opinion of the writer the
testator was a rational person. . . . There is no question but that, if any one of these
writers had been present at trial, his evidence, founded on personal observation, that
the testator a sane person, would be admissible on this issue. . . .

118
But the question is whether the contents of these letters are evidence of the facts
to be proved upon this issue, -- that is, the actual existence of the qualities which the
testator is, in those letters, by implication, stated to possess: and those letters may be
consider in this respect to be on the same footing as if they had contained a direct and
positive statement that he was competent. For this purpose, they are mere hearsay
evidence, statements of the writers, not on oath, of the truth of the matter in question
with this addition, that they have acted upon the statements on the faith of their being
true, by their sending the letters to the testator. That the so acting cannot give a
sufficient sanction for the truth of the statement is perfectly plain. . . .
The conclusion at which I have arrived is that proof of a particular fact, which is
not of itself a matter in issue, but which is relevant only as implying a statement or
opinion of a third person on the matter in issue, is inadmissible in all cases in which
such a statement or opinion not on oath would be of itself inadmissible; and, there, in
this case the letters which are offered only to prove the competence of the testator,
that is the truth of the implied statements therein contained, were properly rejected. . .
.
THE FEDERAL RULES OF EVIDENCE

RULE 801.
(a) Statement A statement is (1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by him as an assertion.

119
UNITED STATES V. LONG
United States Court of Appeals for the District of Columbia Circuit
905 F. 2d 1572 (1990)
CLARENCE THOMAS, Circuit Judge:
Keith Long was convicted of possession of cocaine with intent to distribute. . . .
During the search of Mayfields apartment, the telephone rang and a police officer
answered it. An identified female voice asked to speak with Keith. The officer
replied that Keith was busy. The caller then asked if Keith still had any stuff. The
officer asked the caller what she meant, and the caller responded a fifty.20 The
officer said yeah. The caller then asked whether Mike could come around to pick
up the fifty. Again, the officer answered yes.
Before trial, Longs counsel moved to exclude evidence of this telephone
conversation as inadmissible hearsay. The trial judge denied the motion. At trial, the
police officer who had taken the call testified about the conversation. . . . In this
appeal, Long renews his hearsay challenge to the introduction of the officers
testimony.
. . . The crucial distinction under Rule 801 is between intentional and
unintentional messages, regardless of whether they are express or implied. It is
difficult to imagine any question, or for that matter any act, that does not in some way
convey an implicit message. One of the principal goals of the hearsay rule is to
exclude declarations when their veracity cannot be tested through cross-examination.
When a declarant does not intend to communicate anything, however, his sincerity is
not in question and the need for cross-examination is sharply diminished. Thus, an
unintentional message is presumptively more reliable.
. . . Long has not provided any evidence to suggest that the caller, through her
questions, intended to assert that he was involved in drug dealing. . . . Long has thus
failed to satisfy the intent requirement of Rule 801 . . . and the judge did not err in
admitting the testimony concerning the callers questions.

20 A fifty refers to a bag of crack cocaine worth fifty dollars. . . .


120
CONSIDER THE FOLLOWING:

Plaintiff sues Defendant for a hit-and-run accident. Defendant denies that she was involved in any
such accident. Defendant calls W to the stand to testify that he heard X say that he had run over
Plaintiff. Plaintiff objects on grounds of hearsay. Should the evidence be admissible?

Defendant is prosecuted for the murder of Victim. The prosecutor calls W to the stand. W will testify
that just before he died Victim told him that Defendant shot him. Defense counsel objects on grounds
of hearsay. Should the evidence be admissible?

Plaintiff sues Defendant for breach of contract. Plaintiff calls W to the stand and W testifies she saw
Defendant and Plaintiff shake hands of the deal. Thereafter, there is a mistrial and a new trial is
scheduled. W moves out of the jurisdiction. At the new trial, Plaintiff wants to introduce into evidence
a transcript of Ws testimony in the first trial. Defendant objects on grounds of hearsay. Should the
evidence be admissible?

121
Part V

Clear and Present Danger

Congress shall make no law . . . abridging the freedom of


speech, or of the press. . . .

122
Shaffer v. United States
255 F. 886 (9th Cir. 1919)

Shaffer was convicted of violating the Espionage Act of 1917. The indictment
alleged that Shaffer had mailed a book, The Finished Mystery, which contained
several treasonable, disloyal, and seditious utterances, specifying the following
passages in particular:
Standing opposite to these Satan has placed [a] certain delusion which
is best described by the word patriotism, but which in reality is murder, the
spirit of the very devil. [If] you say it is a war of defense against wanton and
intolerable aggression, I must reply that [it] has yet to be proved that
Germany has any intention or desire of attacking us. [The] war itself is
wrong. Its prosecution will be a crime. There is not a question raised, an
issue involved, a cause at stake, which is worth the life of one blue-jacket on
the sea or one khaki-coat in the trenches.
The Court of Appeals affirmed the conviction:

It is true that disapproval of war and the advocacy of peace are not
crimes under the Espionage Act; but the question here [is] whether the
natural and probable tendency and effect of [the publication] are such as are
calculated to produce the result condemned by the statute. [It cannot] be
said, as a matter of law, that the reasonable and natural effect of [the]
publication was not to obstruct [the] recruiting or enlistment service, and
thus to injure the service of the United States. Printed matter may tend to
obstruct [the] service, even if it contains no mention of recruiting or
enlistment, and no reference to the military service of the United States.
[The] service may be obstructed by attacking the justice of the cause for
which the war is waged, and by undermining the spirit of loyalty which
inspires men to enlist or to register for conscription in the service of their
country. [To] teach that patriotism is murder and the spirit of the devil, and
that the war against Germany was wrong and its prosecution a crime, is to
weaken patriotism and the purpose to enlist or to render military service in
the war.
It is argued that the evidence fails to show that [Shaffer] committed the
act willfully and intentionally. But there is enough in the evidence to show
the hostile attitude of his mind against the prosecution of the war by the
United States, and that the books were intentionally concealed on his
premises. He must be presumed to have intended the natural and probable
consequences of what he knowingly did.
* * * * *
Shaffer reflects the then-prevailing view of the lower federal courtsthat
speech could constitutionally be punished as an attempt to cause some forbidden or

123
otherwise undesirable conduct if the natural and reasonable tendency of the
expression might be to bring about the conduct, and if the speaker intended such a
result. Under this view, intent could be inferred from the tendency of the speech
itself, on the theory that one intends the natural and foreseeable consequences of
ones acts. Through the twin doctrines of bad tendency and constructive intent,
decisions like Shaffer routinely converted criticism of the war and the draft into
criminal attempts to cause insubordination or obstruct recruiting. The relatively
modest provisions of the 1917 act were thus converted into essentially open-ended
restrictions of seditious expression.
Other representative prosecutions under the Espionage Act include the
following:
(1) Rose Pastor Stokes was convicted for saying, I am for the people and the
government is for the profiteers, during an antiwar talk to the Womens Dining
Club of Kansas City. Although there were no soldiersindeed, no menin her
intended audience, the government successfully argued that she had violated the
act because our armiescan operate and succeed only so far as they are supported
and maintained by the folks at home, and Stokess statement had the tendency to
chill enthusiasm, extinguish confidence, and retard cooperation of mothers,
sisters, and sweethearts. She was sentenced to ten years in prison.
(2) The Reverend Clarence H. Waldron was convicted for distributing a
pamphlet stating that if Christians [are] forbidden to fight to preserve the Person
of their Lord and Master, they may not fight to preserve themselves, or any city
they should happen to dwell in. The government charged that in distributing this
pamphlet Waldron had obstructed the recruiting service. He was sentenced to
fifteen years in prison.
(3) Robert Goldstein was convicted for producing and exhibiting a motion
picture about the American Revolution. The Spirit of 76 depicted Paul Reveres
ride, the signing of the Declaration of Independence, and Washington at Valley
Forge. But it also included a scene accurately portraying the Wyoming Valley
Massacre, in which British soldiers bayoneted women and children. The
government charged that this could promote insubordination because it negatively
portrayed Americas ally in the war against Germany. Goldstein was sentenced to
ten years in prison.

124
Masses Publishing Co. v. Patten

244 F. 535 (S.D.N.Y. 1917)


[In July 1917, the postmaster of New York, acting on the direction of the
Postmaster General, advised the plaintiff, a publishing company engaged in the
production of a monthly revolutionary journal called The Masses, that the August
issue of the journal would be denied access to the mails under the Espionage Act of
1917. The Masses regularly featured a remarkable collection of writers, poets,
playwrights, and philosophers, including Max Eastman, John Reed, Vachel
Lindsay, Emma Goldman, Carl Sandburg, Bertrand Russell, Louis Untermeyer,
and Sherwood Anderson. Iconoclastic, impertinent, and confrontational, it was filled
with sparkling social satire, intellectual commentary, and political criticism.
Plaintiff applied for a preliminary injunction to forbid the postmaster to refuse to
accept the August issue for mailing. While objecting generally that the whole
purport of the issue was in violation of the law, on the ground that it tended to
produce a violation of the law, to encourage the enemies of the United States, and to
hamper the government in the conduct of the war, the postmaster specified four
cartoons and four pieces of text as especially falling within the act.]
LEARNED HAND, DISTRICT JUDGE.
It must be remembered at the outset, and the distinction is of critical
consequence throughout, that no question arises touching the war powers of
Congress. It may be that Congress may forbid the mails to any matter which tends
to discourage the successful prosecution of the war. It may be that the fundamental
personal rights of the individual must stand in abeyance, even including the right of
the freedom of the press, though that is not here in question.
[The postmasters] position is that to arouse discontent and disaffection among
the people with the prosecution of the war and with the draft tends to promote a
mutinous and insubordinate temper among the troops. This [is] true; men who
become satisfied that they are engaged in an enterprise dictated by the
unconscionable selfishness of the rich, and effectuated by a tyrannous disregard for
the will of those who must suffer and die, will be more prone to insubordination
than those who have faith in the cause and acquiesce in the means. Yet to interpret
the word cause so broadly would [involve] necessarily as a consequence the
suppression of all hostile criticism, and of all opinion except what encouraged and
supported the existing policies, or which fell within the range of temperate
argument. It would contradict the normal assumption of democratic government
that the suppression of hostile criticism does not turn upon the justice of its
substance or the decency and propriety of its temper. Assuming that the power to
repress such opinion may rest in Congress in the throes of a struggle for the very
existence of the state, its exercise is so contrary to the use and wont of our people
that only the clearest expression of such a power justifies the conclusion that it was
intended.

125
The [postmasters] position, therefore, in so far as it involves the suppression of
the free utterance of abuse and criticism of the existing law, or of the policies of the
war, is not, in my judgment, supported by the language of the statute. Yet there has
always been a recognized limit to such expressions. [One] may not counsel or advise
others to violate the law as it stands. Words are not only the keys of persuasion, but
the triggers of action, and those which have no purport but to counsel the violation
of law cannot by any latitude of interpretation be a part of that public opinion which
is the final source of government in a democratic state. [To] counsel or advise a man
to an act is to urge upon him either that it is his interest or his duty to do it. While,
of course, this may be accomplished as well by indirection as expressly, since words
carry the meaning that they impart, the definition is exhaustive, I think, and I shall
use it. Political agitation, by the passions it arouses or the convictions it engenders,
may in fact stimulate men to the violation of law. Detestation of existing policies is
easily transformed into forcible resistance of the authority which puts them in
execution, and it would be folly to disregard the causal relation between the two.
Yet to assimilate agitation, legitimate as such, with direct incitement to violent
resistance, is to disregard the tolerance of all methods of political agitation which in
normal times is a safeguard of free government. The distinction is not a scholastic
subterfuge, but a hard-bought acquisition in the fight for freedom, and the purpose
to disregard it must be evident when the power exists. If one stops short of urging
upon others that it is their duty or their interest to resist the law, it seems to me
one should not be held to have attempted to cause its violation. If that be not the
test, I can see no escape from the conclusion that under this section every political
agitation which can be shown to be apt to create a seditious temper is illegal. I am
confident that by such language Congress had no such revolutionary purpose in
view.
It seems to me, however, quite plain that none of the language and none of the
cartoons in this paper can be thought directly to counsel or advise insubordination
or mutiny, without a violation of their meaning quite beyond any tolerable
understanding. I come, therefore, to the third phrase of the section, which forbids
any one from willfully obstructing the recruiting or enlistment service of the United
States. I am not prepared to assent to the plaintiffs position that this only refers to
acts other than words, nor that the act thus defined must be shown to have been
successful. One may obstruct without preventing, and the mere obstruction is an
injury to the service; for it throws impediments in its way. Here again, however,
since the question is of the expression of opinion, I construe the sentence, so far as it
restrains public utterance, as [limited] to the direct advocacy of resistance to the
recruiting and enlistment service. If so, the inquiry is narrowed to the question
whether any of the challenged matter may be said to advocate resistance to the
draft, taking the meaning of the words with the utmost latitude which they can
bear.
As to the cartoons it seems to me quite clear that they do not fall within such a
test. Certainly the nearest is that entitled Conscription, [See Perilous Times at
page 165] and the most that can be said of that is that it may breed such animosity
126
to the draft as will promote resistance and strengthen the determination of those
disposed to be recalcitrant. There is no intimation that, however hateful the draft
may be, one is in duty bound to resist it, certainly none that such resistance is to
ones interest. I cannot, therefore, [assent] to the assertion that any of the cartoons
violate the act.
The text offers more embarrassment. The poem to Emma Goldman and
Alexander Berkman,* at most, goes no further than to say that they are martyrs in
the cause of love among nations. Such a sentiment holds them up to admiration,
and hence their conduct to possible emulation. The paragraph in which the editor
offers to receive funds for their appeal also expresses admiration for them, but goes
no further. The paragraphs upon conscientious objectors are of the same kind. They
go no further than to express high admiration for those who have held and are
holding out for their convictions even to the extent of resisting the law. [That] such
comments have a tendency to arouse emulation in others is clear enough, but that
they counsel others to follow these examples is not so plain. Literally at least they
do not, and while, as I have said, the words are to be taken, not literally, but
according to their full import, the literal meaning is the starting point for
interpretation. One may admire and approve the course of a hero without feeling
any duty to follow him. There is not the least implied intimation in these words that
others are under a duty to follow. The most that can be said is that, if others do
follow, they will get the same admiration and the same approval. Now, there is
surely an appreciable distance between esteem and emulation; and unless there is
here some advocacy of such emulation, I cannot see how the passages can be said to
fall within the law. [The] question before me is quite the same as what would arise
upon a motion to dismiss an indictment at the close of the proof: Could any
reasonable man say, not that the indirect result of the language might be to arouse
a seditious disposition, for that would not be enough, but that the language directly
advocated resistance to the draft? I cannot think that upon such language any
verdict would stand.
It follows that the plaintiff is entitled to the usual preliminary injunction.
* * * * * *

* A Tribute
Josephine Bell
....
Emma Goldman and Alexander Berkman
Are in prison tonight,
But they have made themselves elemental forces,
Like the water that climbs down the rocks:
Like the wind in the leaves:
Like the gentle night that holds us:
They are working on our destinies:
They are forging the love of the nations: . . .
Tonight they lie in prison.

127
Judge Hands opinion was reversed on appeal. Masses Publishing Co. v. Patten,
246 F. 24 (2d Cir. 1917). The court of appeals flatly rejected Judge Hands
construction of the act: If the natural and reasonable effect of what is said is to
encourage resistance to a law, and the words are used in an endeavor to persuade to
resistance, it is immaterial that the duty to resist is not mentioned, or the interest
of the persons addressed in resistance is not suggested. Other reactions to Judge
Hands formulation were equally unsupportive, and after 1921, Judge Hand himself
abandoned his advocacy of the Masses approach. Parts of the formula, however,
have reappeared in contemporary tests of subversive advocacy. See Yates and
Brandenburg, infra this chapter. The Masses itself was soon driven out of business,
and its editors were prosecuted under the Espionage Act of 1917.
From the moment he was assigned the case, Judge Hand fully appreciated its
significance for him personally. Hand knew he was under consideration for
promotion to the court of appeals, a promotion he richly deserved and much desired.
He wrote his wife that if the case were not quickly settled, his decision would go
against the government, and then whoop-la your little man is in the mud. He
added that there are times when the old bunk about an independent and fearless
judiciary means a good deal. Not surprisingly, because of his opinion in Masses,
Judge Hand was passed over for promotion by President Wilson. Gerald Gunther,
Learned Hand: The Man and the Judge 155 (1995).

128
Schenck v. United States
249 U.S. 47 (1919)

MR. JUSTICE HOLMES delivered the opinion of the court.


[The defendants were convicted of conspiracy to violate section 3 of the Espionage
Act of 1917 by circulating to men who had been called and accepted for military
service a document alleged to be calculated to obstruct the recruiting and
enlistment service.]
The document in question, upon its first printed side, recited the 1st section of
the Thirteenth Amendment, said that the idea embodied in it was violated by the
Conscription Act, and that a conscript is little better than a convict. In impassioned
language it intimated that conscription was despotism in its worst form and a
monstrous wrong against humanity, in the interest of Wall Streets chosen few. It
said: Do not submit to intimidation; but in form at least confined itself to peaceful
measures, such as a petition for the repeal of the act. The other and later printed
side of the sheet was headed, Assert Your Rights. It stated reasons for alleging
that anyone violated the Constitution when he refused to recognize your right to
assert your opposition to the draft, and went on: If you do not assert and support
your rights, you are helping to deny or disparage rights which it is the solemn duty
of all citizens and residents of the United States to retain. It described the
arguments on the other side as coming from cunning politicians and a mercenary
capitalist press, and even silent consent to the Conscription Law as helping to
support an infamous conspiracy. It denied the power to send our citizens away to
foreign shores to shoot up the people of other lands, and added that words could not
express the condemnation such cold-blooded ruthlessness deserves, etc., winding up,
You must do your share to maintain, support, and uphold the rights of the people
of this country. Of course the document would not have been sent unless it had
been intended to have some effect, and we do not see what effect it could be
expected to have upon persons subject to the draft except to influence them to
obstruct the carrying of it out. The defendants do not deny that the jury might find
against them on this point.
But it is said, suppose that was the tendency of this circular, it is protected by the
First Amendment to the Constitution. Two of the strongest expressions are said to
be quoted respectively from well-known public men. It well may be that the
prohibition of laws abridging the freedom of speech is not confined to previous
restraints, although to prevent them may have been the main purpose, as intimated
in Patterson v. Colorado, 205 U.S. 454, 462. We admit that in many places and in
ordinary times the defendants, in saying all that was said in the circular, would
have been within their constitutional rights. But the character of every act depends
upon the circumstances in which it is done. The most stringent protection of free
speech would not protect a man in falsely shouting fire in a theater, and causing a
panic. It does not even protect a man from an injunction against uttering words that
may have all the effect of force. The question in every case is whether the words

129
used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree. When a nation is at
war many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight, and that no
Court could regard them as protected by any constitutional right. It seems to be
admitted that if an actual obstruction of the recruiting service were proved, liability
for words that produced that effect might be enforced. The Statute of 1917, in 4,
punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking,
or circulating a paper,) its tendency and the intent with which it is done, are the
same, we perceive no ground for saying that success alone warrants making the act
a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed, that case might be
said to dispose of the present contention if the precedent covers all media
concludendi. But as the right to free speech was not referred to specially we have
thought fit to add a few words.
Judgments affirmed.

* * * * *

Consider the Courts decisions in Frohwerk and Debs, handed down on the same
day, in the spring of 1919, exactly one week after Schenck.

130
Frohwerk v. United States
_______________________________________
249 U.S. 204 (1919)

As a result of their participation in the preparation and publication of a series


of articles in the Missouri Staats Zeitung, a German-language newspaper,
Frohwerk and Gleeser were convicted under the Espionage Act of 1917 of conspiring
to cause disloyalty, mutiny, and refusal of duty in the military and naval forces of
the United States. Frohwerk was sentenced to a fine and to ten years
imprisonment. The Court, speaking through Justice Holmes, unanimously rejected
Frohwerks contention that his conviction violated the first amendment. Justice
Holmes described two of the articles as follows:
The first begins by declaring it a monumental and inexcusable mistake
to send our soldiers to France [and] that it appears to be outright murder
without serving anything practical. [A subsequent article,] after deploring
the draft riots in Oklahoma and elsewhere in language that might be
taken to convey an innuendo of a different sort, [says] that [the] talk about
legal remedies is all very well for those who are past the draft age and have
no boys to be drafted, and [then] goes on to give a picture, made as moving
as the writer was able to make it, of the sufferings of a drafted man, [and of
his] reaching the conviction that this is but a war to protect some rich mens
money. Who then, it is asked, will pronounce a verdict of guilty upon him if
he stops reasoning and follows the first impulse of nature: self-preservation.
Justice Holmes began his analysis in Frohwerk by observing that the first
amendment cannot have been, and obviously was not, intended to give immunity
for every possible use of language. Neither Hamilton nor Madison, nor any other
competent person then or later ever supposed that to make criminal the counseling
of murder within the jurisdiction of Congress would be an unconstitutional
interference with free speech. Justice Holmes then turned to the crux of the issue:
It may be that all this may be said or written even in time of war in circumstances
that would not make it a crime. [But] we must take the case on the record as it is,
and on the record it is impossible to say that it might not have been found that the
circulation of the paper was in quarters where a little breath would be enough to
kindle a flame [and that] fact was known and relied upon by those who sent the
paper out. Justice Holmes therefore concluded that we find ourselves unable to
say that the articles could not furnish a basis for a conviction.

131
Debs v. United States
_______________________________________
249 U.S. 211 (1919)

Eugene V. Debs was the national leader and spiritual father of the Socialist
Party. In 1916, Debs received almost a million votes in his campaign as Socialist
Party candidate for the presidency of the United States. One of every sixteen voters
supported him. A major national figure, Debs strongly opposed both conscription
and the U.S. intervention in the war. On June 16, 1918, to demonstrate his support
of those who had been jailed for their opposition to the federal government, Debs
visited three Socialists who were then in prison in Canton, Ohio, for violating the
Espionage Act. Only a short distance from the prison, he made a bold and
provocative speech to a crowd of some twelve hundred listeners. Although his
address dealt mainly with the history and ideals of socialism, he also spoke directly
about the three martyrs for freedom:

I have just returned from a visit over yonder [pointing to the


workhouse], where three of our most loyal comrades are paying the
penalty for their devotion to the cause of the working class. [Applause].
They have come to realize, as many of us have, that it is extremely
dangerous to exercise the constitutional right of free speech in a
country fighting to make democracy safe in the world. [Applause] I
realize that, in speaking to you this afternoon, there are certain
limitations placed upon the right of free speech. I must be exceedingly
careful, prudent, as to what I say, and even more careful and prudent
as to how I say it. [Laughter]. I may not be able to say all I think;
[Laughter and applause] but I am not going to say anything that I do
not think. [Applause]. . . . [Our three comrades] are simply paying the
penalty, that all men have paid in all the ages of history for standing
erect, and for seeking to pave the way to better conditions for mankind.
[Applause]. . . . They tell us that we live in a great free republic; that
our institutions are democratic; that we are a free and self-governing
people. [Laughter]. This is too much, even for a joke. [Laughter]. But it
is not a subject for levity; it is an exceedingly serious matter.

For this speech, Debs was arrested, tried, and convicted under the Espionage
Act for obstructing the recruiting and enlistment service of the United States. He
was sentenced to a prison term of ten years.
The Supreme Court, speaking once again through Justice Holmes, unanimously
rejected Debss claim that the conviction violated the first amendment. Justice
Holmes noted at the outset that [t]he main theme of the speech was socialism, its
growth, and a prophecy of its ultimate success. With that we have nothing to do, but
if a part of the manifest intent of the more general utterances was to encourage
those present to obstruct the recruiting service and if in passages such
132
encouragement was directly given, the immunity of the general theme may not be
enough to protect the speech. Indeed, if one purpose of the speech, whether
incidental or not does not matter, was to oppose [the] war, and if, in all the
circumstances, that would be its probable effect, it would not be protected.
Turning to the speech itself, Justice Holmes observed that Debs had specifically
praised several persons who had previously been convicted of aiding or encouraging
others to refuse induction. Moreover, Debs had stated that he had to be prudent
and might not be able to say all that he thought, thus intimating to his hearers,
Justice Holmes reasoned, that they might infer that he meant more. Toward the
end of his address, Debs told his audience that you need to know that you are fit
for something better than slavery and cannon fodder.
In such circumstances, Justice Holmes concluded that Debss first amendment
claim had in practical effect been disposed of in [Schenck]. Justice Holmes
emphasized that the jury in Debs had been most carefully instructed that they
could not find the defendant guilty for advocacy of any of his opinions unless the
words used had as their natural tendency and reasonably probable effect to obstruct
the recruiting service [and] unless the defendant had the specific intent to do so in
his mind. As in Frohwerk, Justice Holmes made no reference in Debs to clear and
present danger.

In 1920, while in prison, Debs was the Socialist candidate for President. He again
received almost a million votes. President Harding released him from prison in
1921.

133
Abrams v. United States
250 U.S. 616 (1919)

[Although czarist Russia, like the United States, had declared war on Germany,
the Bolsheviks, on seizing power, signed a peace treaty with Germany. In the
summer of 1918, the United States sent a contingent of marines to Vladivostok and
Murmansk. The defendants in Abrams, a group of Russian immigrants who were
self-proclaimed socialists and anarchists, perceived the expedition as an attempt to
crush the Russian Revolution. In protest, they distributed several thousand copies
of each of two leaflets, one of which was written in English, the other in Yiddish.
The leaflets, which were thrown from a window and circulated secretly, called for a
general strike. The defendants were arrested by the military police, and after a
controversial trial, they were convicted of conspiring to violate various provisions of
the Sedition Act of 1918. The overall flavor of the trial is captured in the trial
judges remarks just prior to sentencing:
These defendants took the stand. They talked about capitalists and
producers, and I tried to figure out what a capitalist and what a producer is
as contemplated by them. After listening carefully to all they had to say, I
came to the conclusion that a capitalist is a man with a decent set of clothes,
a minimum of $1.25 in his pocket, and a good character. And when I tried to
find out what the prisoners had produced, I was unable to find out anything
at all. So far as I can learn, not one of them ever produced so much as a
single potato. The only thing they know how to raise is hell, and to direct it
against the government of the United States. [But] we are not going to help
carry out the plans mapped out by the Imperial German Government, and
which are being carried out by Lenin and Trotsky. I have heard of the
reported fate of the poor little daughters of the Czar, but I wont talk about
that now. I might get mad. I will now sentence the prisoners.
The defendants were sentenced to prison terms ranging from three to twenty
years. The Supreme Court affirmed the convictions on two counts: one charging a
violation of the provision prohibiting conspiracy to incite, provoke or encourage
resistance to the United States (count 3); the other charging a violation of the
provision prohibiting conspiracy to urge curtailment of the production of war
materials with intent [to] cripple or hinder the United States in the prosecution of
the war (count 4). Speaking for the Court, Justice Clarke summarily rejected the
defendants first amendment argument, noting simply that [t]his contention is
sufficiently discussed and is definitely negatived in [Schenck] and [Frohwerk].]
Mr. Justice Holmes dissenting.
The first of these leaflets says that the Presidents cowardly silence about the
intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington.

134
It intimates that German militarism combined with allied capitalism to crush the
Russian revolution.[It] says that there is only one enemy of the workers of the
world and that is capitalism; that it is a crime for workers of America, &c., to fight
the workers republic of Russia, and ends Awake! Awake, you Workers of the
World! Revolutionists. A note adds It is absurd to call us pro-German. We hate
and despise German militarism more than do you hypocritical tyrants. We have
more reasons for denouncing German militarism than has the coward of the White
House.
The other leaflet, headed WorkersWake Up, with abusive language says
that [the] hypocrites shall not fool the Russian emigrants and friends of Russia in
America. It tells the Russian emigrants that they now must spit in the face of the
false military propaganda by which their sympathy and help to the prosecution of
the war have been called forth and says that with the money they have lent or are
going to lend they will make bullets not only for the Germans but also for the
Workers Soviets of Russia, and further, Workers in the ammunition factories, you
are producing bullets, bayonets, cannon, to murder not only the Germans, but also
your dearest, best, who are in Russia and are fighting for freedom. It then appeals
to the same Russian emigrants at some length not to consent to the inquisitionary
expedition to Russia, and says that the destruction of the Russian revolution is
the politics of the march to Russia. The leaflet winds up by saying Workers, our
reply to this barbarous intervention has to be a general strike!, and after a few
words on the spirit of revolution, exhortations not to be afraid, and some usual tall
talk ends Woe unto those who will be in the way of progress. Let solidarity live!
The Rebels.
I never have seen any reason to doubt [that]Schenck, Frohwerk and Debs were
rightly decided. I do not doubt for a moment that by the same reasoning that would
justify punishing persuasion to murder, the United States constitutionally may
punish speech that produces or is intended to produce a clear and imminent danger
that it will bring about forthwith certain substantive evils that the United States
constitutionally may seek to prevent. The power undoubtedly is greater in time of
war than in time of peace because war opens dangers that do not exist at other
times.
But as against dangers peculiar to war, as against others, the principle of the
right to free speech is always the same. It is only the present danger of immediate
evil or an intent to bring it about that warrants Congress in setting a limit to the
expression of opinion where private rights are not concerned. Congress certainly
cannot forbid all effort to change the mind of the country. Now nobody can suppose
that the surreptitious publishing of a silly leaflet by an unknown man, without
more, would present any immediate danger that its opinions would hinder the
success of the government arms or have any appreciable tendency to do so.
In this case sentences of twenty years imprisonment have been imposed for the
publishing of two leaflets that I believe the defendants had as much right to publish

135
as the Government has to publish the Constitution of the United States now vainly
invoked by them.
Persecution for the expression of opinions seems to me perfectly logical. If you
have no doubt of your premises or your power and want a certain result with all
your heart you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think the speech impotent,
as when a man says that he has squared the circle, or that you do not care whole-
heartedly for the result, or that you doubt either your power or your premises. But
when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideasthat the best test
of truth is the power of the thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes safely can be
carried out. That at any rate is the theory of our Constitution. It is an experiment,
as all life is an experiment. Every year if not every day we have to wager our
salvation upon some prophecy based upon imperfect knowledge. While that
experiment is part of our system I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate interference
with the lawful and pressing purposes of the law that an immediate check is
required to save the country. I wholly disagree with the argument of the
Government that the First Amendment left the common law as to seditious libel in
force. History seems to me against the notion. I had conceived that the United
States through many years had shown its repentance for the Sedition Act of 1798,
by repaying fines that it imposed. Only the emergency that makes it immediately
dangerous to leave the correction of evil counsels to time warrants making any
exception to the sweeping command, Congress shall make no lawabridging the
freedom of speech. Of course I am speaking only of expressions of opinion and
exhortations, which were all that were uttered here, but I regret that I cannot put
into more impressive words my belief that in their conviction upon this indictment
the defendants were deprived of their rights under the Constitution of the United
States.
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.
* * * * * *

136
Gitlow v. New York

268 U.S. 652 (1925)

MR. JUSTICE SANFORD delivered the opinion of the Court.

Benjamin Gitlow was indicted in the Supreme Court of New York, with three
others, for the statutory crime of criminal anarchy. [He] was separately tried,
convicted, and sentenced to imprisonment.
The contention here is that the statute, by its terms and as applied in this case,
is repugnant to the due process clause of the Fourteenth Amendment. Its material
provisions are:
161. Advocacy of criminal anarchy. Any person [who] advocates,
advises, or teaches the duty, necessity or propriety of overthrowing
[organized] government by force or violence, or by assassination of [any] of
the executive officials of government, or by any unlawful means; [is] guilty
of a felony.
[The] defendant is a member of the Left Wing Section of the Socialist Party, a
dissenting branch or faction of that party formed in opposition to its dominant
policy of moderate Socialism.[The] Left Wing Section was organized nationally at
a conference in New York City in June, 1919, attended by ninety delegates from
twenty different States. The conference elected a National Council, of which the
defendant was a member, and left to it the adoption of a manifesto. This was
published in The Revolutionary Age, the official organ of the Left Wing. The
defendant [arranged] for the printing [and publication of the first issue of the paper,
which contained the Left Wing Manifesto].
[The indictment charged that, as a result of his involvement in the publication
of the manifesto, he had advocated, advised and taught the duty, necessity and
propriety of overthrowing and overturning organized government by force, violence
and unlawful means.]
There was no evidence of any effect resulting from the publication and
circulation of the Manifesto. [The Manifesto] condemned the dominant moderate
Socialism for its recognition of the necessity of the democratic parliamentary state;
repudiated its policy of introducing Socialism by legislative measures; and
advocated, in plain and unequivocal language, the necessity of accomplishing the
Communist Revolution by a militant and revolutionary Socialism, based on the
class struggle and mobilizing the power of the proletariat in action, through mass
industrial revolts developing into mass political strikes and revolutionary mass
action, for the purpose of conquering and destroying the parliamentary state and
establishing in its place, through a revolutionary dictatorship of the proletariat,
the system of Communist Socialism.

137
The statute does not penalize the utterance or publication of abstract doctrine
or academic discussion having no quality of incitement to any concrete action. It is
not aimed against mere historical or philosophical essays. It does not restrain the
advocacy of changes in the form of government by constitutional and lawful means.
What it prohibits is language advocating, advising or teaching the overthrow of
organized government by unlawful means. These words imply urging to action.
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as
suggested by counsel, mere prediction that industrial disturbances and
revolutionary mass strikes will result spontaneously in an inevitable process of
evolution in the economic system. It advocates and urges in fervent language mass
action which shall progressively foment industrial disturbances and through
political mass strikes and revolutionary mass action overthrow and destroy
organized parliamentary government. It concludes with a call to action in these
words: The proletariat revolution and the Communist reconstruction of society
the struggle for theseis now indispensable.The Communist International calls
the proletariat of the world to the final struggle! This [is] the language of direct
incitement. [That] the jury were warranted in finding that the Manifesto advocated
not merely the abstract doctrine of overthrowing organized government by force,
violence and unlawful means, but action to that end, is clear.
For present purposes we may and do assume that freedom of speech and of the
presswhich are protected by the First Amendment from abridgment by
Congressare among the fundamental personal rights and liberties protected by
the due process clause of the Fourteenth Amendment from impairment by the
States.
It is a fundamental principle, long established, that the freedom of speech and
of the press which is secured by the Constitution, does not confer an absolute right
to speak or publish, without responsibility, whatever one may choose, or an
unrestricted and unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom. [A] State
may punish utterances endangering the foundations of organized government and
threatening its overthrow by unlawful means. These imperil its own existence as a
constitutional State. Freedom of speech and press [does] not deprive a State of the
primary and essential right of self preservation.
By enacting the present statute the State has determined, through its
legislative body, that utterances advocating the overthrow of organized government
by force, violence and unlawful means, are so inimical to the general welfare and
involve such danger of substantive evil that they may be penalized in the exercise of
its police power. That determination must be given great weight. Every
presumption is to be indulged in favor of the validity of the statute. Mulger v.
Kansas, 123 U.S. 623, 661. And the case is to be considered in the light of the
principle that the State is primarily the judge of regulations required in the interest
of public safety and welfare; and that its police statutes may only be declared
unconstitutional where they are arbitrary or unreasonable attempts to exercise

138
authority vested in the State in the public interest. Great Northern Ry. v. Clara
City, 246 U.S. 434, 439. That utterances inciting to the overthrow of organized
government by unlawful means, present a sufficient danger of substantive evil to
bring their punishment within the range of legislative discretion, is clear. Such
utterances, by their very nature, involve danger to the public peace and to the
security of the State. They threaten breaches of the peace and ultimate revolution.
And the immediate danger is none the less real and substantial, because the effect
of a given utterance cannot be accurately foreseen. The State cannot reasonably be
required to measure the danger from every such utterance in the nice balance of a
jewelers scale. A single revolutionary spark may kindle a fire that, smouldering for
a time, may burst into a sweeping and destructive conflagration. It cannot be said
that the State is acting arbitrarily or unreasonably when in the exercise of its
judgment as to the measures necessary to protect the public peace and safety, it
seeks to extinguish the spark without waiting until it has enkindled the flame or
blazed into the conflagration. It cannot reasonably be required to defer the adoption
of measures for its own peace and safety until the revolutionary utterances lead to
actual disturbances of the public peace or imminent and immediate danger of its
own destruction; but it may, in the exercise of its judgment, suppress the
threatened danger in its incipiency.
We cannot hold that the present statute is an arbitrary or unreasonable
exercise of the police power of the State unwarrantably infringing the freedom of
speech or press; and we must and do sustain its constitutionality.
This being so it may be applied to every utterancenot too trivial to be beneath
the notice of the lawwhich is of such a character and used with such intent and
purpose as to bring it within the prohibition of the statute. [In] other words, when
the legislative body has determined generally, in the constitutional exercise of its
discretion, that utterances of a certain kind involve such danger of substantive evil
that they may be punished, the question whether any specific utterance coming
within the prohibited class is likely, in and of itself, to bring about the substantive
evil, is not open to consideration. It is sufficient that the statute itself be
constitutional and that the use of the language comes within its prohibition.
It is clear that the question in such cases is entirely different from that involved
in those cases where the statute merely prohibits certain acts involving the danger
of substantive evil, without any reference to language itself, and it is sought to
apply its provisions to language used by the defendant for the purpose of bringing
about the prohibited results. There, if it be contended that the statute cannot be
applied to the language used by the defendant because of its protection by the
freedom of speech or press, it must necessarily be found, as an original question,
without any previous determination by the legislative body, whether the specific
language used involved such likelihood of bringing about the substantive evil as to
deprive it of the constitutional protection. In such cases it has been held that the
general provisions of the statute may be constitutionally applied to the specific
utterance of the defendant if its natural tendency and probable effect was to bring

139
about the substantive evil which the legislative body might prevent. [Schenck;
Debs.][That test] has no application to [cases] like the present, where the legislative
body itself has previously determined the danger of substantive evil arising from
utterances of a specified character.
Affirmed.
MR. JUSTICE HOLMES dissenting.
Mr. Justice Brandeis and I are of opinion that this judgment should be reversed.
The general principle of free speech, it seems to me, must be taken to be included in
the Fourteenth Amendment, in view of the scope that has been given to the word
liberty as there used, although perhaps it may be accepted with a somewhat
larger latitude of interpretation than is allowed to Congress by the sweeping
language that governs, or ought to govern, the laws of the United States. If I am
right, then I think that the criterion sanctioned by the full court in [Schenck]
applies: The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that [the state] has a right to prevent. It
is true that in my opinion this criterion was departed from in [Abrams], but the
convictions that I expressed in that case are too deep for it to be possible for me as
yet to believe that it [has] settled the law. If what I think the correct test is applied,
it is manifest that there was no present danger of an attempt to overthrow the
government by force on the part of the admittedly small minority who shared the
defendants views. It is said that this Manifesto was more than a theory, that it was
an incitement. Every idea is an incitement. It offers itself for belief, and, if believed,
it is acted on unless some other belief outweighs it, or some failure of energy stifles
the movement at its birth. The only difference between the expression of an opinion
and an incitement in the narrower sense is the speakers enthusiasm for the result.
Eloquence may set fire to reason. But whatever may be thought of the redundant
discourse before us, it had no chance of starting a present conflagration. If, in the
long run, the beliefs expressed in proletarian dictatorship are destined to be
accepted by the dominant forces of the community, the only meaning of free speech
is that they should be given their chance and have their way.
If the publication of this document had been laid as an attempt to induce an
uprising against government at once, and not at some indefinite time in the future,
it would have presented a different question.

* * * * *

Benjamin Gitlow was represented at trial by Clarence Darrow. Gitlow


informed Darrow that if put on the witness stand, he would not deny, but affirm
and defend every communist principle in the Left Wing Manifesto. That was not
welcome news to Darrow, but he realized Gitlow was beyond argument: Well, I
suppose a revolutionist must have his say in court even if it kills him. When

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Gitlow addressed the court, he made his position clear: I am a revolutionist. [I]n
order to bring about socialism, capitalist governments must be overthrown. My
whole life has been dedicated to the movement which I am in. No jail will change
my opinion. [Darrow] tried to soften the message [by presenting] Gitlow as one in a
long line of eccentric dreamers, but to no avail. Defendants in similar prosecutions
were pardoned by New York Governor Al Smith, who explained that The public
assertion of an erroneous doctrine is perhaps the surest way to disclose the error,
but Gitlow declined a pardon so he could enable the ACLU to take his case to the
Supreme Court. Shortly after the Court upheld his conviction, Gitlow was pardoned
by Governor Smith. Years later, after being disillusioned by developments in the
Soviet Union, Gitlow publicly repudiated his former views. In 1939, he testified
before the Dies Committee (the forerunner of the House Un-American Activities
Committee) and by the 1950s he was testifying regularly against alleged
Communists in prosecutions under the Smith Act and condemned the ACLU for
being too-willing to defend Communists. Lendler, The Time to Kill a Snake: Gitlow
v. New York and the Bad-Tendency Doctrine, 36 J. Sup. Ct. Hist. 11 (No. 1) (2011).

141
Whitney v. California
274 U.S. 357 (1927)

MR. JUSTICE SANFORD delivered the opinion of the Court.

[In 1919, Anita Whitney attended the national convention of the Socialist Party
in Chicago as a delegate of the local Oakland branch of the party. At this
convention, the party split between the radicals and the old-line Socialists. The
radicals, supported by the Oakland branch delegates, formed the Communist Labor
Party and promulgated a platform similar in style and substance to the Left Wing
Manifesto at issue in Gitlow. Shortly thereafter, Whitney attended a convention
held in Oakland for the purpose of organizing a California branch of the Communist
Labor Party. At this convention, she sponsored a moderate resolution calling for the
achievement of the partys goals through the political process. This resolution was
defeated, however, and the convention adopted the more militant national platform.
Whitney remained at the convention until it adjourned and remained a member of
the party. As a result of her activities at the Oakland convention, she was charged
with violating the California Criminal Syndicalism Act, which prohibited any
person [to] knowingly become a member of any organization that advocates the
commission of crime, sabotage, or unlawful acts of force and violence or unlawful
methods of terrorism as a means of accomplishing a change in industrial ownership
or control, or effecting any political change. For an excellent account of Ms.
Whitneys life and of the trial and appellate proceedings in the case, see Blasi, The
First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney
v. California, 29 Wm. & Mary L. Rev. 653 (1988).]
The first count of the information, on which the conviction was had, charged
that [at the Oakland convention] the defendant, in violation of the Criminal
Syndicalism Act, did then and there [knowingly become] a member of [a group]
organized [to advocate] criminal syndicalism.
[At her trial, Whitney] testified that it was not her intention that the
Communist Labor Party of California should be an instrument of terrorism or
violence. [But by] enacting the provisions of the Syndicalism Act the State has
declared, [for an individual] to knowingly be or become a member of [an
organization that advocates criminal syndicalism] involves such danger to the
public peace and the security of the State [that] these acts should be penalized in
the exercise of its police power. That determination must be given great weight.
The essence of the offense denounced by the Act [partakes] of the nature of a
criminal conspiracy. [That] such united and joint action involves even greater
danger to the public peace and security than the isolated utterances and acts of
individuals, is clear. We cannot hold that, as here applied, the Act is an
unreasonable or arbitrary exercise of the police power of the State.

142
Affirmed.
MR. JUSTICE BRANDEIS, concurring.
[Although] the rights of free speech and assembly are fundamental, they are not
in their nature absolute. Their exercise is subject to restriction, if the particular
restriction proposed is required in order to protect the state from destruction or
from serious injury, political, economic or moral. That the necessity which is
essential to a valid restriction does not exist unless speech would produce, or is
intended to produce, a clear and imminent danger of some substantive evil which
the state constitutionally may seek to prevent has been settled. See [Schenck].
It is said to be the function of the legislature to determine whether at a
particular time and under the particular circumstances the formation of, or
assembly with, a society organized to advocate criminal syndicalism constitutes a
clear and present danger of substantive evil; and that by enacting the law here in
question the legislature of California determined that question in the affirmative.
Compare [Gitlow]. The legislature must obviously decide, in the first instance,
whether a danger exists which calls for a particular protective measure. But where
a statute is valid only in case certain conditions exist, the enactment of the statute
cannot alone establish the facts which are essential to its validity.
This court has not yet fixed the standard by which to determine when a danger
shall be deemed clear; how remote the danger may be and yet be deemed present;
and what degree of evil shall be deemed sufficiently substantial to justify resort to
abridgment of free speech and assembly as the means of protection. To reach sound
conclusions on these matters, we must bear in mind why a state is, ordinarily,
denied the power to prohibit dissemination of social, economic and political doctrine
which a vast majority of its citizens believes to be false and fraught with evil
consequence.
Those who won our independence believed that the final end of the state was to
make men free to develop their faculties; and that in its government the
deliberative forces should prevail over the arbitrary. They valued liberty both as an
end and as a means. They believed liberty to be the secret of happiness and courage
to be the secret of liberty. They believed that freedom to think as you will and to
speak as you think are means indispensable to the discovery and spread of political
truth; that without free speech and assembly discussion would be futile; that with
them, discussion affords ordinarily adequate protection against the dissemination of
noxious doctrine; that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a fundamental principle of the
American government. They recognized the risks to which all human institutions
are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting

143
remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by lawthe argument of
force in its worst form. Recognizing the occasional tyrannies of governing majorities,
they amended the Constitution so that free speech and assembly should be
guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of speech to free
men from the bondage of irrational fears. To justify suppression of free speech there
must be reasonable ground to fear that serious evil will result if free speech is
practiced. There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one. Every denunciation of existing law tends in some
measure to increase the probability that there will be violation of it. Condonation of
a breach enhances the probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching syndicalism increases it.
Advocacy of lawbreaking heightens it still further. But even advocacy of violation,
however reprehensible morally, is not a justification for denying free speech where
the advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and conspiracy,
must be borne in mind. In order to support a finding of clear and present danger it
must be shown either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe that such advocacy
was then contemplated.
Those who won our independence by revolution were not cowards. They did not
fear political change. They did not exalt order at the cost of liberty. To courageous,
self-reliant men, with confidence in the power of free and fearless reasoning applied
through the processes of popular government, no danger flowing from speech can be
deemed clear and present, unless the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If there
be time to expose through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech, not enforced
silence. Only an emergency can justify repression. Such must be the rule if
authority is to be reconciled with freedom. Such, in my opinion, is the command of
the Constitution. It is, therefore, always open to Americans to challenge a law
abridging free speech and assembly by showing that there was no emergency
justifying it.
Moreover, even imminent danger cannot justify resort to prohibition of these
functions essential to effective democracy, unless the evil apprehended is relatively
serious. Prohibition of free speech and assembly is a measure so stringent that it
would be inappropriate as the means for averting a relatively trivial harm to
society. A police measure may be unconstitutional merely because the remedy,
although effective as means of protection, is unduly harsh or oppressive. Thus, a

144
state might, in the exercise of its police power, make any trespass upon the land of
another a crime, regardless of the results or of the intent or purpose of the
trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to
commit the trespass. But it is hardly conceivable that this court would hold
constitutional a statute which punished as a felony the mere voluntary assembly
with a society formed to teach that pedestrians had the moral right to cross
unenclosed, unposted, waste lands and to advocate their doing so, even if there was
imminent danger that advocacy would lead to a trespass. The fact that speech is
likely to result in some violence or in destruction of property is not enough to justify
its suppression. There must be the probability of serious injury to the state. Among
freemen, the deterrents ordinarily to be applied to prevent crime are education and
punishment for violations of the law, not abridgment of the rights of free speech and
assembly.
The California Syndicalism Act recites, in 4:
[This] act concerns and is necessary to the immediate preservation of
the public peace and safety, for the reason that at the present time large
numbers of persons are going from place to place in this state advocating,
teaching and practicing criminal syndicalism.
This legislative declaration satisfies the requirement of the Constitution of the
state concerning emergency legislation. [But] it does not preclude inquiry into the
question whether, at the time and under the circumstances, the conditions existed
which are essential to validity under the Federal Constitution. As a statute, even if
not void on its face, may be challenged because invalid as applied, [the] result of
such an inquiry may depend upon the specific facts of the particular case. Whenever
the fundamental rights of free speech and assembly are alleged to have been
invaded, it must remain open to a defendant to present the issue whether there
actually did exist at the time a clear danger; whether the danger, if any, was
imminent; and whether the evil apprehended was one so substantial as to justify
the stringent restriction interposed by the legislature. The legislative declaration,
like the fact that the statute was passed and was sustained by the highest court of
the state, creates merely a rebuttable presumption that these conditions have been
satisfied. [For technical reasons, Justice Brandeis ultimately voted to uphold the
conviction.]
MR. JUSTICE HOLMES joins in this opinion.

* * * * *
Consider Harry Kalven, A Worthy Tradition: Freedom of Speech in America 158
(1988):
Although Whitney marks the sixth consecutive decision in which the
majority has either ignored the clear and present danger test or found it
inapplicable, Justice Brandeis [continues to assert that it has been settled
that clear and present danger is the test for restrictions of speech]. The
145
stamina and tactics of these classic dissents are remarkable. In professional
lawyering terms, the performance of Justices Holmes and Brandeis is
outrageous. They keep insisting that they are adhering to the Courts true
rule adopted in Schenck [even though they] have been told [repeatedly] by
the majority that clear and present danger is not now and never was the
general [test]. Yet we are all deeply in their debt for their outrageous
behavior. They have kept alive a counter-tension in the tradition, and their
towering prestige has invested the slogan with almost mesmerizing force.
Like twin Moses come down from Mount Sinai bearing the true
Commandment, they see little need to argue that the formula is rightly
derived from the First Amendment, merely that it is.
In the decade following Whitney, the Court handed down three decisions
concerning subversive advocacy and the right of association. Although the Court did
not expressly reconsider its earlier decisions in these cases, in each case the Court
found a technical way to invalidate the conviction. Thus, after an era of nine
consecutive affirmances of convictions for subversive advocacy, the Court in the
next decade offered three consecutive reversals. See Fiske v. Kansas, 274 U.S. 380
(1927); De Jonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242
(1937).

146
Dennis v. United States
341 U.S. 494 (1951)

MR. CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion
in which MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON join.
Petitioners were indicted for violation of the conspiracy provisions of the Smith
Act during the period of April 1945, to July, 1948. [A] verdict of guilty as to all the
petitioners was returned by the jury. [The] Court of Appeals affirmed.
Sections 2 and 3 of the Smith Act provide as follows:
Sec. 2.
(a) It shall be unlawful for any person
(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the
United States by force or violence, or by the assassination of any officer of such
government.
Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to
commit, any of the acts prohibited by the provisions ofthis title.
The indictment charged the petitioners with willfully and knowingly conspiring
(1) to organize as the Communist Party of the United States of America a society,
group and assembly of persons who teach and advocate the overthrow and
destruction of the Government of the United States by force and violence, and (2)
knowingly and willfully to advocate and teach the duty and necessity of
overthrowing and destroying the Government of the United States by force and
violence.
The trial of the case extended over nine months, six of which were devoted to
the taking of evidence, resulting in a record of 16,000 pages. Our limited grant of
the writ of certiorari has removed from our consideration any question as to the
sufficiency of the [evidence]. Whether on this record petitioners did in fact advocate
the overthrow of the Government by force and violence is not before us, and we
must base any discussion of this point upon the conclusion [of] the Court of Appeals,
which [held] that the record in this case amply supports the necessary finding of the
jury that petitioners, the leaders of the Communist Party in this country, [intended]
to initiate a violent revolution whenever the propitious occasion appeared.
[The petitioners attack] the statute on the grounds that by its terms it prohibits
academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is
contrary to all concepts of a free speech and a free press. [But the] very language of
the Smith Act [demonstrates that it] is directed at advocacy, 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.

147
The rule we deduce from [the Espionage Act] cases is that where an offense is
specified by a statute in nonspeech or nonpress terms, a conviction relying upon
speech or press as evidence of violation may be sustained only when the speech or
publication created a clear and present danger of attempting or accomplishing the
prohibited crime.
[In Gitlow and Whitney, the] legislature had found that a certain kind of speech
was, itself, harmful and unlawful. [In such circumstances, the Court held that the
test was] whether the statute was reasonable.[Although] no case subsequent to
Whitney and Gitlow has expressly overruled the majority opinions in those cases,
there is little doubt that subsequent opinions have inclined toward the Holmes-
Brandeis rationale.
In this case we are [thus] squarely presented with the application of the clear
and present danger test, and must decide what that phrase imports. We first note
that [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, the literal problem which is presented is what has been meant by the use
of the phrase clear and present danger.
Obviously, the words 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 the
signal is awaited. If Government is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to commit them to a course whereby
they will strike when the leaders feel the circumstances permit, action by the
Government is required. The argument that there is no need for Government to
concern itself, for Government is strong, it possesses ample powers to put down a
rebellion, it may defeat the revolution with ease needs no answer. For that is not
the question. Certainly an attempt to overthrow the Government by force, even
though doomed from the outset because of inadequate numbers or power of the
revolutionists, is a sufficient evil for Congress to prevent. The damage which such
attempts create both physically and politically to a nation makes it impossible to
measure the validity in terms of the probability of success, or the immediacy of a
successful attempt.
Chief Judge Learned Hand, writing for the majority below, interpreted the
phrase as follows: In each case [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.[We] adopt this statement of the rule. As articulated by Chief
Judge Hand, it is as succinct and inclusive as any other we might devise at this
time. It takes into consideration those factors which we deem relevant, and relates
their significances. More we cannot expect from words.
Likewise, we are in accord with the court below, which affirmed the trial courts
finding that the requisite danger existed. The mere fact that from the period 1945 to
1948 petitioners activities did not result in an attempt to overthrow the
Government by force and violence is of course no answer to the fact that there was a

148
group that was ready to make the attempt. The formation by petitioners of such a
highly organized conspiracy, with rigidly disciplined members subject to call when
the leaders, these petitioners, felt that the time had come for action, coupled with
the inflammable nature of world conditions, similar uprisings in other countries,
and the touch-and-go nature of our relations with countries with whom petitioners
were in the very least ideologically attuned, convince us that their convictions were
justified on this score. And this analysis disposes of the contention that a conspiracy
to advocate, as distinguished from the advocacy itself, cannot be constitutionally
restrained, because it comprises only the preparation. It is the existence of the
conspiracy which creates the danger.
[Affirmed.]
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, concurring.
Primary responsibility for adjusting the interests which compete in the
situation before us of necessity belongs to the Congress. [We] are to set aside the
judgment of those whose duty it is to legislate only if there is no reasonable basis for
it. [After canvassing the entire corpus of the Courts first amendment jurisprudence,
Justice Frankfurter set forth the following conclusions.]
First. Free-speech cases are not an exception to the principle that we are not
legislators, that direct policy-making is not our province. [Second.] A survey of the
relevant decisions indicates that the results which we have reached are on the
whole those that would ensue from careful weighing of conflicting interests. [Third.]
Not every type of speech occupies the same position on the scale of values. [On] any
scale of values, [speech advocating the overthrow of the government by force and
violence] ranks low. Throughout our decisions there has recurred a distinction
between the statement of an idea which may prompt its hearers to take unlawful
action, and advocacy that such action be taken.
These general considerations underlie decision of the case before us. On the one
hand is the interest in security. [In] determining whether application of the statute
to the defendants is within the constitutional powers of Congress, we [must
consider] whatever is relevant to a legislative judgment. [We] may take account of
evidence brought forward at this trial and elsewhere, much of which has long been
common knowledge, [that] would amply justify a legislature in concluding that
recruitment of additional members of the Party would create a substantial danger
to national security.
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.
[Moreover, a] public interest is not wanting in granting freedom to speak their
minds even to those who advocate the overthrow of the Government by force. For, as
the evidence in this case abundantly illustrates, coupled with such advocacy is
149
criticism of defects in our society. [We must also recognize that suppressing]
advocates of overthrow inevitably will also silence critics who do not advocate
overthrow but fear that their criticism may be so construed. [It] is self-delusion to
think that we can punish [the defendants] for their advocacy without adding to the
risks run by loyal citizens who honestly believe in some of the reforms these
defendants advance. It is a sobering fact that in sustaining the convictions before us
we can hardly escape restriction on the interchange of ideas.
It is not for us to decide how we would adjust the clash of interests which this
case presents were the primary responsibility for reconciling it ours. Congress has
determined that the danger created by advocacy of overthrow justifies the ensuing
restriction on freedom of speech. [To] make validity of legislation depend on judicial
reading of events still in the womb of time [is] to charge the judiciary with duties
beyond its equipment.
MR. JUSTICE JACKSON, concurring.
I would save [the clear and present danger standard], unmodified, for
application as a rule of reason in the kind of case for which it was devised. When
the issue is criminality of a hot-headed speech on a street corner, or circulation of a
few incendiary pamphlets, or parading by some zealots behind a red flag, [it] is not
beyond the capacity of the judicial process to gather, comprehend, and weigh the
necessary materials for decision whether it is a clear and present danger of
substantive evil or a harmless letting off of steam. [But] unless we are to hold our
government captive in a judge-made verbal trap, we must approach the problem of
a well-organized, nation-wide conspiracy [as] realistically as our predecessors faced
the trivialities that were being prosecuted until they were checked with a rule of
reason.
The highest degree of constitutional protection is due to the [individual]. But
even an individual cannot claim that the Constitution protects him in advocating or
teaching overthrow of government by force or violence. [I] think direct incitement by
speech or writing can be made a crime, and I think there can be a conviction
without also proving that the odds favored its success by 99 to 1, or some other
extremely high ratio.
MR. JUSTICE BLACK, dissenting.
[The] other opinions in this case show that the only way to affirm these
convictions is to repudiate directly or indirectly the established clear and present
danger rule. This the Court does in a way which greatly restricts the protections
afforded by the First Amendment. The opinions for affirmance indicate that the
chief reason for jettisoning the rule is the expressed fear that advocacy of
Communist doctrine endangers the safety of the Republic. Undoubtedly, a
governmental policy of unfettered communication of ideas does entail dangers. To
the Founders of this Nation, however the benefits derived from free expression were
worth the risk.

150
Public opinion being what it now is, 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.
MR. JUSTICE DOUGLAS, dissenting.
If this were a case where those who claimed protection under the First
Amendment were teaching the techniques of sabotage, the assassination of the
President, the filching of documents from public files, the planting of bombs, the art
of street warfare, and the like, I would have no doubts. The freedom to speak is not
absolute; the teaching of methods of terror and other seditious conduct should be
beyond the pale. [This] case was argued as if those were the facts. [But] the fact is
that no such evidence was introduced at the trial.
So far as the present record is concerned, what petitioners did was to organize
people to teach and themselves teach the Marxist-Leninist doctrine contained
chiefly in four books: Stalin, Foundations of Leninism (1924); Marx and Engels,
Manifesto of the Communist Party (1848); Lenin, The State and Revolution (1917);
History of the Communist Party of the Soviet Union (B.) (1939).
The opinion of the Court does not outlaw these texts nor condemn them to the
fire, as the Communists do literature offensive to their creed. But if the books
themselves are not outlawed, if they can lawfully remain on library shelves, by
what reasoning does their [use] become a crime? [The] Act, as construed; requires
the element of intentthat those who teach the creed believe in it. The crime then
depends not on what is taught but on who the teacher is. 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.
There comes a time when even speech loses its constitutional immunity. Speech
innocuous one year may at another time fan such destructive flames that it must be
halted in the interests of the safety of the Republic. That is the meaning of the clear
and present danger test. When conditions are so critical that there will be no time
to avoid the evil that the speech threatens, it is time to call a halt.
[If] we are to take judicial notice of the threat of Communists within the nation,
it should not be difficult to conclude that as a political party they are of little
consequence. [Communism] in the world scene is no bogeyman; but Communism as
a political faction or party in this country plainly is. Communism has been so
thoroughly exposed in this country that it has been crippled as a political force. Free
speech has destroyed it as an effective political party.
How it can be said that there is a clear and present danger that this advocacy
will succeed is, therefore, a mystery. [In] America, [the Communists] are miserable
merchants of unwanted ideas; their wares remain unsold. The fact that their ideas
are abhorrent does not make them powerful. [Thus], if we are to proceed on the
basis of judicial notice, it is impossible for me to say that the Communists in this

151
country are so potent or so strategically deployed that they must be suppressed for
their speech.

* * * * *
Note that Judge Learned Hand, the author of Masses, also wrote the opinion for
the court of appeals in Dennis. By the time of Dennis, Judge Hand had come to
accept that Masses had found little professional support. As he put it, he had bid
a long farewell to my little toy ship which set out quite bravely on the shortest
voyage ever made. As a lower court judge who took seriously his obligation to
follow Supreme Court precedents, Judge Hand did his best to make sense of an
array of rulings on clear and present dangera standard he disliked from the
outset. Although upholding the convictions under his reformulated version of the
standard, Judge Hand insisted repeatedly that the prosecution was a mistake.
As he wrote a friend shortly after the decision, Personally I should never have
prosecuted those birds.So far as all this will do anything, it will encourage the
faithful and maybe help the [Partys] Committee on Propaganda. G. Gunther,
Learned Hand: The Man and the Judge 600-603 (1994). Note that the Smith Act
prohibited only the express advocacy of unlawful conduct. Consider G. Stone,
Perilous Times: Free Speech in Wartime 402 (2004):
In June 1951, [Hand] wrote Frankfurter, [S]o far as the
Constitution goes, I cannot see why it should protect any speech which
contains aid[ing], abetting, counsel[ling] etc., to violate any law. Six
months later he wrote [that]every society which promulgates a law
means that it shall be obeyed until it is changed, and any society which
lays down means by which its laws can be changed makes those means
exclusive.If [this be] so, how in Gods name can an incitement to do
what will be unlawful if done, be itself lawful? In this sense, then, not
only was Learned Hand faithfully following Supreme Court precedents
rather than his own inclinations in Dennis, but his own inclinations
would have led him to the very same outcome, though for quite
different reasons.

152
Yates v. United States
___________________________________
354 U.S. 298 (1957)

JUSTICE HARLAN delivered the opinion of the Court. . . .


[We are] faced with the question whether the Smith Act prohibits advocacy [of]
forcible overthrow as an abstract principle, divorced from any effort to instigate
action to that end, so long as such advocacy [is] engaged in with evil intent. We hold
that it does not. [The] distinction between advocacy of abstract doctrine and
advocacy directed at promoting unlawful action is one that has been consistently
recognized in the opinions of this Court, [and] was heavily underscored in [Gitlow].
[We] need not, however, decide the issue before us in terms of constitutional
compulsion, for our first duty is to construe this statute. In doing so we should not
assume that Congress chose to disregard a constitutional danger zone so clearly
marked.
[We reject the proposition] that mere doctrinal justification of forcible
overthrow, if engaged in with the intent to accomplish overthrow, is punishable
[under] the Smith Act. That sort of advocacy, even though uttered with the hope
that it may ultimately lead to violent revolution, is too remote from concrete action
to be regarded as the kind of indoctrination preparatory to action which was
condemned in Dennis.[The] essential distinction is that those to whom the advocacy
is addressed must be urged to do something, now or in the future, rather than
merely to believe in something.

* * * * *

Consider Kingsley International Pictures Corp. v. Regents of New York, 360


U.S. 684 (1959), in which the Court held unconstitutional a New York statute
prohibiting the issuance of a license to exhibit nonobscene motion pictures that
portray acts of sexual immorality [as] desirable, acceptable, or proper patterns of
behavior. The state applied the statute to deny a license to the film Lady
Chatterleys Lover because its theme was that adultery was proper behavior.
The Court observed that the state was attempting to prevent the exhibition of a
motion picture because that picture advocates an ideathat adultery under certain
circumstances may be proper behavior. Yet the First Amendments basic guarantee
is of freedom to advocate ideas. The state, quite simply, has thus struck at the heart
of constitutionally protected liberty. In response to the states argument that its
action was justified because the motion picture attractively portrays a relationship
which is contrary to [the] legal code of its citizenry, the Court maintained that the
state misconceives what it is that the Constitution protects. The first amendment,
the Court declared, protects advocacy of the opinion that adultery may sometimes

153
be proper, no less than advocacy of socialism or the single tax. Indeed, quoting
Justice Brandeiss opinion in Whitney, the Court explained that advocacy of
conduct proscribed by law is [not]a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the advocacy
would be immediately acted on.
Consider also Bond v. Floyd, 385 U.S. 116 (1966), in which the Court held that
the Georgia House of Representatives could not constitutionally refuse to seat
Julian Bond, a duly elected representative, because of his statements, and
statements to which he subscribed, criticizing the policy of the federal government
in Vietnam and the operation of the selective service system. Four days before Bond
was scheduled to be sworn in, the Student Nonviolent Coordinating Committee
(SNCC), a civil rights organization of which Bond was the communications director,
issued a statement declaring its opposition to United States involvement in Viet
Nam. The statement concluded by announcing: We are in sympathy with, and
support, the men in this country who are unwilling to respond to a military draft.
In a unanimous opinion, the Court observed that Bond could not have been
constitutionally convicted under [the federal statute] which punishes any person
who counsels, aids, or abets another to refuse or evade registration. The Court
explained that, although the SNCC statement expressed sympathy with, and
support for, those who refused to respond to a military draft, that statement alone
cannot be interpreted as a call to unlawful refusal to be drafted. The Court thus
concluded that Bond could not have been convicted for these statements
consistently with the First Amendment. [Citing Yates.]

154
Brandenburg v. Ohio

395 U.S. 444 (1969)

PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio
Criminal Syndicalism statute of advocat[ing]the duty, necessity, or propriety of
crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform and of voluntarily assembl[ing] with
any society, group or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism. He was fined $1,000 and sentenced to one to 10
years imprisonment.
The record shows that a man, identified at trial as the appellant, telephoned an
announcer-reporter on the staff of a Cincinnati television station and invited him to
come to a Ku Klux Klan rally to be held at a farm in Hamilton County. With the
cooperation of the organizers, the reporter and a cameraman attended the meeting
and filmed the events. Portions of the films were later broadcast on the local station
and on a national network.
The prosecutions case rested on the films and on testimony identifying the
appellant as the person who communicated with the reporter and who spoke at the
rally. The State also introduced into evidence several articles appearing in the film,
including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by
the speaker in the films.
One film showed 12 hooded figures, some of whom carried firearms. They were
gathered around a large wooden cross, which they burned. No one was present other
than the participants and the newsman who made the film. Most of the words
uttered during the scene were incomprehensible when the film was projected, but
scattered phrases could be understood that were derogatory of Negroes and, in one
instance, of Jews. Another scene on the same film showed the appellant, in Klan
regalia, making a speech. The speech, in full, was as follows:
This is an organizers meeting. We have had quite a few members here
today which arewe have hundreds, hundreds of members throughout the
State of Ohio. I can quote from a newspaper clipping from the Columbus
Ohio Dispatch, five weeks ago Sunday morning. The Klan has more
members in the State of Ohio than does any other organization. Were not a
revengent organization, but if our President, our Congress, our Supreme
Court, continues to suppress the white, Caucasian race, its possible that
there might have to be some revengence taken.
We are marching on Congress July the Fourth, four hundred thousand
strong. From there we are dividing into two groups, one group to march on

155
St. Augustine, Florida, the other group to march into Mississippi. Thank
you.
The second film showed six hooded figures one of whom, later identified as the
appellant, repeated a speech very similar to that recorded on the first film.
The reference to the possibility of revengence was omitted, and one sentence
was added: Personally, I believe the nigger should be returned to Africa, the Jew
returned to Israel. Though some of the figures in the films carried weapons, the
speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to
1920, identical or quite similar laws were adopted by 20 States and two
territories. In 1927, this Court sustained the constitutionality of Californias
Criminal Syndicalism Act, [the] text of which is quite similar to that of the laws of
Ohio. [Whitney.] The Court upheld the statute on the ground that, without more,
advocating violent means to effect political and economic change involves such
danger to the security of the State that the State may outlaw it.[But]Whitney has
been thoroughly discredited by later decisions. See [Dennis]. These later decisions
have fashioned the principle that the constitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy of the use of force or
of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.1 As we
[explained in 1961], the mere abstract teaching [of] the moral propriety or even
moral necessity for a resort to force and violence, is not the same as preparing a
group for violent action and steeling it to such action. See also [Bond]. A statute
which fails to draw this distinction impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments. It sweeps within its
condemnation speech which our Constitution has immunized from governmental
control. Cf. [Yates].
Measured by this test, Ohios Criminal Syndicalism Act cannot be sustained.
[Neither] the indictment nor the trial judges instructions to the jury in any way
refined the statutes bald definition of the crime in terms of mere advocacy not
distinguished from incitement to imminent lawless action.
Accordingly, we are here confronted with a statute which, by its own words and
as applied, purports to punish mere advocacy and to forbid, on pain of criminal
punishment, assembly with others merely to advocate the described type of action.
Such a statute falls within the condemnation of the First and Fourteenth

1It was on the theory that the Smith Act [embodied] such a principle and that it had been
applied only in conformity with it that this Court sustained the Acts constitutionality.
[Dennis]. That this was the basis for Dennis was emphasized in [Yates], in which the Court
overturned convictions for advocacy of the forcible overthrow of the Government under the
Smith Act, because the trial judges instructions had allowed convictions for mere advocacy,
unrelated to its tendency to produce forcible action.
156
Amendments. The contrary teaching of [Whitney] cannot be supported, and that
decision is therefore overruled.
Reversed.
MR. JUSTICE BLACK, CONCURRING.
I agree with the views expressed by Mr. Justice Douglas in his concurring
opinion in this case that the clear and present danger doctrine should have no
place in the interpretation of the First Amendment. I join the Courts opinion,
which, as I understand it, simply cites [Dennis] but does not indicate any agreement
on the Courts part with the clear and present danger doctrine on which Dennis
purported to rely.
MR. JUSTICE DOUGLAS, CONCURRING.
I see no place in the regime of the First Amendment for any clear and present
danger test, whether strict and tight as some would make it, or free-wheeling as
the Court in Dennis rephrased it. When one reads the opinions closely and sees
when and how the clear and present danger test has been applied, great
misgivings are aroused. First, the threats were often loud but always puny and
made serious only by judges so wedded to the status quo that critical analysis made
them nervous. Second, the test was so twisted and perverted in Dennis as to make
the trial of those teachers of Marxism an all-out political trial which was part and
parcel of the cold war that has eroded substantial parts of the First Amendment.
The line between what is permissible and not subject to control and what may
be made impermissible and subject to regulation is the line between ideas and overt
acts. The example usually given by those who would punish speech is the case of
one who falsely shouts fire in a crowded theatre. This is, however, a classic case
where speech is brigaded with action. [They] are indeed inseparable and a
prosecution can be launched for the overt acts actually caused. Apart from rare
instances of that kind, speech is, I think, immune from prosecution.

* * * * * *

Scholars often have wondered why Brandenburg was a per curiam opinion. The
opinion originally was drafted in April 1969 by Justice Fortas. Before it was issued,
however, the events occurred that led Justice Fortas to resign from the Court in
disgrace. The task of redrafting the opinion was assigned to Justice Brennan, who
made only minor changes. See B. Murphy, Fortas: The Rise and Ruin of a Supreme
Court Justice 543-544 (1988).
Although the Court maintained that the pre-Brandenburg decisions [fashioned]
the principle adopted in Brandenburg, Brandenburg seems to have gone far beyond
settled law. Indeed, it has been said that the Brandenburg formulation would have
demanded the contrary result in [both] the early Espionage Act cases and the later
Communist cases, J. Ely, Democracy and Distrust 115 (1980), and that

157
Brandenburg combined the most [speech] protective ingredients of the Masses
emphasis with the most useful element of the clear and present danger heritage to
produce the most speech-protective standard yet evolved by the Supreme Court.
Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine:
Some Fragments of History, 27 Stan. L. Rev. 719, 754, 755 (1975). More specifically,
Brandenburg has been interpreted as requiring three things: (1) express advocacy
of law violation; (2) the advocacy must call for immediate law violation; and (3) the
immediate law violation must be likely to occur. Schwartz, Holmes versus Hand:
Clear and Present Danger or Advocacy of Unlawful Action?, 1994 Sup. Ct. Rev. 209,
240-241.

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