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Hist B61: The Warren Court and the Pursuit of Justice

Final Study Guide, Version 3

Week 5
Rosie Wang wang26@fas
Mon. October 18—lecture
Re: Bell v. Maryland (1964) – see pg. 267
Question: could privately owned public accommodations discriminate based on race?
Constitutional question of whether the Constitution bans private discrimination without a congressional act (i.e. does
the Supreme Court really have that much power?)
Heard by S.C. just as Congress had begun debating the Civil Rights Bill
Was civil disobedience justified?
3 positions in the Supreme Court
 Justice Goldberg, Douglas, and Warren: unlawful to discriminate even without a civil rights act by
legislature
 Rest of the court: Without legal legislation, private discrimination was ok
 Brennan: avoided the question of whether the legality of private discrimination and used extremely narrow
or technical grounds; here he used the subsequent passage of the Maryland public accommodations law as
the basis for overturning the convictions
Black split from the liberal majority and ended his alliance with the other liberal judges

Reflecting on the liberal majority ultimately leading to the Warren Court

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

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

William Douglas:
• Also appointed by FDR at age 41 (2nd youngest justice) in 1939
• Served 36 years
• Had a significant career in government, where he was a leading figure in a movement for legal reform
known as legal realism
• Had been appointed as dean of Yale Law just before being appointed to the SC
• Love of mountain climbing, nature, solitudebrooding personality
• Strongly identified with outsiders
• Father died when Douglas was 5family in poverty
• Only justice to be married 4 times to increasingly younger women

William J. Brennan:
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• Appointed in 1956 by Eisenhower

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

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

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

Bell v. Maryland (1964)

1. Bell v. Maryland
2. Race Relations – important because it represents Black’s break from the liberal majority and his increasing
distrust of the Civil Rights Movement
3. 1964
4. 6-3
5. Brennan: overturns the conviction of 12 black students who were convicted for criminal trespass after staging a
sit-in in a Maryland restaurant; issue of whether segregation was legal in privately owned public
accommodations; Brennan used the subsequent passage of the Maryland public accommodations law as the
basis for vacating the convictions
6. Concurring justices: Douglas Goldberg and Warren all agree that segregation illegal even w/o legislation
• Douglas: maintained that common law guaranteed nondiscriminatory access to public accommodations
even if privately owned
• Goldberg and Warren: maintained that the Equal Protection Clause itself barred segregation in
privately owned facilities
7. Dissenting justices: Black Harlan White
• Black: dissents from the Court’s refusal to answer the question of whether the 14th A. forbids a State to
enforce its trespass laws without national legislation
Note: 10 days after the Court decided this case, the Civil Rights Bill became law; thus Brennan’s opinion seemed
justified, since the country had acknowledged that the discrimination bein challenged in the case was unlawful

Cox v. Louisiana (1965)

1. Cox v. Louisiana
2. Race Relations: Black once again broke from liberal majority
3. January 18, 1965
4. 5-4
5. Goldberg:
• overturned Cox’s 1 year sentence for leading a march and demonstrating in front of a courthouse
protesting segregated lunch counters) on the ground that “our constitutional command of free speech
and assembly is basic and fundamental and encompasses peaceful social protest”
• granting the police uncontrolled discretion to decide when a peaceful march can take place violates the
1st A.
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• he changed his mind from agreeing with Black when he saw a video that made it seem like the local
marshals allowed them to gather in the first place
6. Concurring judges: Warren Douglas and Brennan
7. Dissents: Black
• feared that Cox would open the door to “fanatical, threatening, lawless mobs applying coercive
pressures” on the courts
• represents an increasing distrust of the Civil Rights movement, which was exacerbated by riots in the
Watts section of LA in the summer of 1965
8. Goldberg acknowledges that the 1st A does not “protect marches in the middle of Times Square at rush hour”

Adderley v. Florida (1966)

1. Adderley v. Florida
2. Race Relations: Black was finally able to command a majority in a sit-in case; affirmed the convictions of 32
students from Florida’s A&M University in Tallahassee, who had protested outside the county jail against
segregation and the arrest of their comrades
3. November 14, 1966
4. 5-4
5. Black in the majority opinion:
• “nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its
general trespass statute against those refusing to obey the sheriff’s order to remove themselves from
what amounted to the cartilage of the jailhouse”
• he denounced “government by demonstration and marching”
6. Concurring judges: the 4 conservatives (Clark Harlan Stewart and White)
7. Dissenting judges: Douglas, Warren, Brennan, and Fortas
• says that the convention methods of petitioning have been closed to large groups of citizens, so their
efforts to protest should not be condemned as tactics of obstruction and harassment as long as the
assembly and petition are peaceable

***

Chaandi McGruder mcgruder@fas

Wed. Oct. 20—lecture
Bell v. Maryland
~Left scars in liberal majority that never really healed (DRAMA…)

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

~Black and Brennan had a little tiff

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

Adderley v. Florida (1966)

Black joined with the four conservatives
~Affirmed convictions of 32 FAMU students who protested outside the jailhouse
~the first case after Brown where a majority of the Supreme Court voted against a civil rights case

Walker v. Birmingham (1967)

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

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

Warren: Civil Rights marchers=dislike of statute by violators

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

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

Blum, “Neither Peace Nor Tranquility”

~Discusses the efforts of the federal government (Pres. Kennedy) and civil rights (Martin Luther King) in
Birmingham in 1963.
~The federal government was not doing much more than talking about the need for civil rights for black people;
Blacks were getting tired of the talk…growing restless and impatient
~King needed a major victory to maintain his influence as a civil rights leader
• He called on Kennedy to stop just talking about civil rights
~Decides to accept an invitation to lead several nonviolent demonstrations in Birmingham
• Police chief Eugene “Bull” Connor did his best to prevent any of the demonstrations
• Two marches were held and participants were arrested, then city obtained an injunction against
public demonstrations
• On April 12 King announced his intention to violate the injunction. The march is held on Easter
Sunday and participants, including King, are arrested. The injunction and “illegal” march led to
Walker v. Birmingham
~Once out of jail, King opens negotiations with white businessmen and civic leaders known as the Senior Citizens
Committee
~Racial violence in Birmingham continues. E.g. one march leads to the arrest and brutal treatment of a thousand
children
~On May 10, the Senior Citizens Committee and SCLC reach an agreement on desegregation of certain public
facilities. King: “we have come today to the climax of a long struggle for justice, freedom and human dignity
in…Birmingham”
~Connor and others weren’t too happy. After a KKK rally, bombs damaged the house of King’s brother and the
SCLC headquarters. Rioting of angry blacks ensued
~The federal government finally decides to intervene: troops were sent and there was a call for the end of rioting
~The federal presence restored enough calm for the desegregation program to begin
~The crisis in Birmingham had lasting effects: black people were increasingly skeptical of nonviolence because
violence had ultimately led the white elite to compromise and the government to intervene
Main point: the reading gives background to (and aftermath of) the Birmingham march that led to Walker v.
Birmingham (the case asking if violating the injunction of an unconstitutional law is wrong). Gave a sense of the
general race tensions in Birmingham in 1963

Walker v. City of Birmingham (1967)

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In “Race Relations” The opinion in Walker showed an increasing disinterest in the civil rights cases and the idea of
civil disobedience. The public was getting fed up with the violence and protesting.
~Decided in June 1967. 5-4 decision affirming the ruling.
Background: An injunction was filed prohibiting demonstrations, parades, etc. Defendants participated in a
nonviolent march anyway and were found in contempt and arrested. At the contempt hearing, the petitioners
attacked the constitutionality of the law (violated 1st A. right to free speech and peaceful assembly). The Alabama
court held that the only issues were if it had jurisdiction to issue the injunction (it did) and if the petitioners
deliberately violated it (they did). Ruled that petitioners could not bypass judicial review of injunction before
violating it.

Opinion delivered by Stewart.

The defendants intentionally violated a temporary injunction. The Court of Alabama had the power to issue
injunctions and, if the injunction was not void, the defendants violated the law. Petitioners should have appealed
instead. It could not be assumed that the ordinance was void on its face or that the courts would have ignored the
appeal anyway. “No man can be judge in his own case, however exalted his station, however righteous his
motives…” The constitution does not give petitioners the right to deliberately ignore the procedures of the law

2 dissenting opinions
1st dissent by Chief Justice (CJ) Warren, with Brennan and Fortas joining
Argues that the Supreme Court does not contend that the ordinance requiring a permit for parades was
unconstitutional. Only that because the same unconstitutional ordinance was put into an injunction, it should not be
violated. That ain’t right.
~Shows no disrespect of the law to violate an unconstitutional statute and submit one’s case to the courts if you’re
willing to accept the penalty if statute is held valid
~No evidence that Police Chief Connor had prohibited the march on the grounds of public safety or reducing traffic
problems
~The injunction became an “impregnable barrier” for infringing on the petitioners 1st A. rights. An unjust ordinance
was kept as law because of the injunction. This is an old tactic used in labor disputes. Again, not right

2nd dissent by Brennan, with Warren, Douglas, and Fortas joining

With this decision, the Court elevates a state rule of judicial administration above the right of expression guaranteed
in the Federal Constitution. Really backwards
Considers reasons for the violation: to peaceably publicize and dramatize the civil rights grievances of blacks
~In this case, the Court was confronted with a collision: Alabama’s interest in requiring adherence to judicial
procedure vs. constitutional prohibition against freedom of speech, peaceable assembly. A “flagrant denial of
constitutional guarantees” to balance away in the name of “respect for judical process”
~Constitutional restrictions against denial of 1st A. extend to judicial as well as legislative and executive power (i.e.
judicial procedure is not above the constitution)
No tests established. No decisions overturned

Katzenbach v. McClung (1964)

In “Race Relations” The case was a roundabout civil rights victory for the free movement/travel of blacks because
interstate restaurants could not discriminate against them.
~Decided in 1964. Reversed injunction by the District Court to restrain petitioners from enforcing Civil Rights Act
against a restaurant. Says Congress is within its power to invoke Commerce Clause

Background: The District Court finds that an Alabama restaurant that refused to serve blacks served a substantial
portion of food that had come from out of state. But it could not be concluded that there was a connetion between
food purchased and sold in a restaurant and Congress’s conlusion that discrimination limited that commerce

Opinion delivered by Clark

~The sole question is whether Titile II is a valid exercise of the power of Congress (yes, it is)
~The fewer customers a restaurant has, the less food it sells and buys
~There is also evidence that discrimination strongly restricted interstate travel for blacks
~The testimony shows that there is reason to believe that these discriminatory restaurants sold less interstate goods
and that interstate travel was obstructed because of it. So the District Court was wrong to say there’s no connection
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~Congress acted undert its power to “protect and foster commerce”

Two concurring opinions

1st concurring opinion by Douglas
~reluctant to rely on the Commerce Clause—right of people to be free of discriminatory state action is more
protected principle than the free movement of commerce across state lines
~the decision should be based on the 14th A. alone: more obvious, would make it unnecessary to figure out if a
customer is an interstate traveler or not (only way it fits under the Commerce Clause)

2nd concurring opinion by Goldberg

~Congress had the authority under the 14th A. and Commerce Clause to enact the Civil Rights Act of 1964 in this
case

No tests established. No decisions overturned

Happy studying everybody! 

***
Stephanie Dorvil dorvil@fas
Katzenbach v. Morgan (1966)
1) Katzenbach v. Morgan (pgs 315-318 in sourcebook)
2) Course Section: Race Relations (Voting Rights)
a) Issue: the constitutionality of section 4e of the Voting Rights Act of 1965 which concerns allowing the
right to vote despite inability to read or write English if the person attended school in Puerto Rico up to the
6th grade in a language other than English
3) Date decided: 1965
4) Decision vote: 7-2 for upholding supremacy clauses of Congress under § 5 of 14th Amendment “The Congress
shall have power to enforce, by appropriate legislation, the provisions of this article”
5) Brennan opinion: upholding Congress’ supremacy
a) Reasoning behind opinion
i) 14th Amendment – “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life liberty or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection
of the laws”
ii) Congress has the right under §5 of the 14th A. to enforce these rights if they deem that the state is
violating them. – (i.e. “The Equal Protetion Clause itself has been held to forbid some state laws that
restrict the right to vote”)
(1) But still recognizes state power of states to determine qualifications of voting otherwise
(2) Overrules NY’s Attorney General argument that judiciary must determine the constitutionality of
the state statute before federal Congress can act.
(a) Giving Congress authority to bypass the judiciary!!! (mainly because it is rational – citing the
“realities familiar to the legislators” = legal realism?)
6) no concurrences
7) Dissenting: Justices Harlan with Justice Stewart joining – 1 dissenting opinion
a) Sees that ruling sacrifices fundamentals of separation of powers in the American federal/state system
i) Congressional v. Judicial authority in enforcing the Constitution should be limited when it comes to
the states.
b) Sees NY’s statute as rational, thus should be upheld in the context of the state
8) No new ones established, but we see evidence of separation of powers, judicial restraint in the dissent – “the
Court has confused the issue of how much enforcement power Congress possesses under § 5 with the distinct
issue of what questions are appropriate for congressional determination and what question are essentially
judicial in nature.”
9) Harlan applies rational basis test in his dissent, arguing that Congress’ assumption of superiority, while it may
have been rational, was overstepping the boundaries of the separation of powers
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10) No cases overruled.

Myrdal, An American Dilemma (excerpt)

1) Main point(s) of the readings
a) Social inequality’s link to the “fear of amalgamation” and “racial purity”
b) “Sex becomes in this popular theory the principle around which the whole structure of segregation of the
Negroes – down to disenfranchisement and deial of equal opportunities on the labor market – is organized.”
(pg 321 in sourcebook)
i) see quote that begins on pg 321 – “In rank order…” near the bottom, describes a chain reaction of
discriminatory beliefs
c) split between social and political equality – i.e. Southern white liberals and their stance for breadwinning,
relief, justice, and politics v. their stance on social relations – racial purity should be upheld.
d) Double standards: Showing distinction between white female – male Negro relations and Negro female –
white male relations; the former is an attempt to sully the white race (particularly the female), the latter
produces Negro children anyhow, keeping the separation between the 2 castes.
i) Distinction is slowly fading however
e) “Would you like to have your daughter (sister) marry a Negro?
f) Need to address the absurdity of these assumptions in light of the American Creed which is being violated
(Individualism, liberalism, etc.)
2) How do these points fit in with the court cases of the section?
a) Section: Race Relations – specifically pertaining to marriages Loving v. Virginia (wherin specific reference
to the wrongness of White Supremacy) and the Naim v. Naim cases
b) Implications of separate but equal
3) How do the themes of the readings fit into the course as a whole?
a) Ideas of freedom, equality, and liberalism inherent in Myrdal’s understanding of the American Creed are
fundamental in the Supreme Court’s determination of Equal Protection under the 14th A.
b) Strict scrutiny of classifications based on race can be linked to America’s fear of amalgamation

Naim v. Naim (1955); (1956) (all three)

1) Naim v. Naim (pgs 327-334 in sourcebook) PART I
2) Course Section: Race Relations (Interracial Marriages)
a) Issue: validity of marriage between a Chinese man and white woman who were married outside of Virginia
(in NC), where interracial marriages are illegal – the couple divorced, and the wife wants the marriage
declared void under Code of Virginia statute
b) Issue 2: “whether the statute in question is beyond the power of the State to enact under the Due Process
and Equal Protection clauses of the 14th Amendment”
3) Date decided: June 13, 1955
4) Decision vote: unclear  affirmed the appeals decision upholding marriage to be void
5) Doesn’t say who wrote the opinion
a) Reasoning behind opinion
i) Marriage is under state control – a social and domestic issue rather than political/civil rights issue (i.e.
Shelley v. Kramer, Brown v. Board of Ed., Bolling v. Sharpe)
(1) Many states have anti-miscegenation statutes – which have been upheld despite invocation of 14th
A. violations
(a) Plessy v. Ferguson case cited – statutes forbidding miscengation could = interference with
freedom of contract.
(b) Racial purity = proper governmental objective
ii) Invoking 10th A. – “powers not delegated to the United States by the Constitution, no prohibited by it
to the states, are reserved the states respectively, or to the people.”
(1) Supports idea of marriage being a State issue (see pg 334)
6) no concurrences
7) No dissents
8) No new ones established, but we see evidence of separation of powers and rational basis test – state authority
and rationality in determining racial purity as a governmental objective
9) See 8
10) No cases overruled. – uses Alabama case (denied certiorari) Jackson v. State to support this decision
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11) Implications ~ could this be used in gay marriage cases?

1) Naim v. Naim PER CURIAM DECISION (pg 335 in sourcebook) PART II

2) Course Section: Race Relations (Interracial Marriages)
a) Bullshit issue – [to get someone else to make the decision]
i) Inadequacy of the record of the relationship of the parties to VA state at the time of their marriage in
NC clouds the ability for a clear-cut determination of the constitutionality of anti-miscegenation
statute.
3) Date decided: November 14, 1955
4) Decision vote: unclear -> judgment is vacated and remanded to Appeals court and Circuit Court of Portsmouth
5) Doesn’t say who wrote the opinion
a) Reasoning behind per curiam – see bullshit issue above
6) no concurrences
7) No dissents
8) No new ones established
9) See 8
10) No cases overruled

1) Naim v. Naim (pgs 336 in sourcebook) PART III

2) Course Section: Race Relations (Interracial Marriages)
a) After vacating the decision – Appeals court sent it back to Supreme Court upholiding its previous decision,
could not remand it back to Circuit Court
3) Date decided: January 18, 1956
4) Decision vote: unclear  affirmed the appeals decision upholding marriage to be void
5) Doesn’t say who wrote the opinion
a) Reasoning behind opinion
i) See PART I
6) no concurrences
7) No dissents
8) No new ones established, but we see evidence of separation of powers and rational basis test – state authority
and rationality in determining racial purity as a governmental objective
9) See 8
10) No cases overruled. – uses Alabama case (denied certiorari) Jackson v. State to support this decision
11) Implications ~ Court REALLY did not want to make the decision on this case!!!

1) Naim v. Naim (pgs 337 in sourcebook) PART IV

2) Course Section: Race Relations (Interracial Marriages)
a) Issue: determining if there is a federal question to be decided in the motion to recall and amend the mandate
3) Date decided: March 12, 1956
4) Decision vote: unclear  DENIED the existence of a federal question = final decision
5) Doesn’t say who wrote the opinion
a) Reasoning behind opinion
i) See 4  no existence of a federal question
6) no concurrences
7) No dissents
8) No new ones established, but we see evidence of separation of powers in the determination that there was no
federal question to be decided.
9) See 8
10) No cases overruled.

Loving v. Virginia (1967)

1) Loving v. Virginia (1967)
2) Course Section: Race Relations (Interracial Marriages)
a) Issue: state authority to use racial classifications as the sole basis of preventing interracial marriages in
view of the 14th A’s Equal Protection and Due Process Clauses
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b) Issue 2: “whether the statute in question is beyond the power of the State to enact under the Due Process
and Equal Protection clauses of the 14th Amendment”
3) Date decided: 1967
4) Decision vote: unanimous
5) Warren opinion
a) Reasoning behind opinion
i) Rejects the notion that the mere ‘equal application’ of a statute serves rational basis when dealing with
racial classifications
ii) Rejects “Framers’ intent” argument
iii) Says that these laws, in not forbidding interracial marriages among minorities, are specifically tailored
to uphold “white supremacy” (only time this is mentioned)
iv) Marriage = basic civil right of man – (negates Naim assertion that marriage is not a political/civil right)
6) Justice Stewart’s Concurrence
a) Believes that race should not determine criminality
7) No dissents
8) No new ones established, but we see evidence of strict scrutiny test implicated by Carolene Products footnote 4
in its statement about distinct and insular minorities and mentioned explicitly in Korematsu v. US (1944)
(sourcebook pg 75). Usually, strict scrutiny will result in invalidation of the challenged classification--but not
always, as illustrated by Korematsu v. United States, in which the Court upholds a military exclusion order
directed at Japanese-Americans during World War II. Loving v Virginia produces a more typical result when
racial classifications are involved.
9) See 8
10) Implicitly overrules Naim v. Naim cases (1955-56)
11) Other notes: Remember that all the avoidance of the intermarriage issue came to naught because the Loving
decision did not excite the nation all that much in the end. It seemed to be inevitable, and it was not a popular
trend anyway.

Green v. County School Bd. (1968)

1) Green v. County School Board of New Kent County (1967)
2) Course Section: Race Relations (Education)
a) Issue: constitutionality of “freedom of choice” plan for school enrollment; (no residential segregation was
evident and each school serves the entire county)
3) Date decided: May 27, 1968
4) Decision vote: unanimous for determining unconstitutional; vacated and remanded
5) Brennan opinion
a) Reasoning behind opinion
i) Dual system (completely with staff, transport, extracurriculars, students) was promoted by the plan,
which is unconstitutional
ii) Delays in all deliberate speed are uncalled for more than 10 years after Brown
(1) Citing Griffin v. County School Board
iii) Need for courts to evaluate the progress of desegregation, and they failed in this case to do so
iv) Need a plan to actually “EFFECTUATE” desegregation; i.e. zoning, that requires students to attend
schools
6) No concurrences
7) No dissents
8) No new ones established – reaffirms “all deliberate speed” and the jurisdiction of the courts to supervise
desegregation
9) Equal Protection and Due Process Clauses of 14th A. affirmed from Brown
10) No overruling; confirms Brown cases.

***
April Timberlake timberl@fas
Powe, The Warren Court, pp.171-78, 217-38, 255(Freedom Summer)-265
Powe, The Warren Court, p171-178

Direct Action
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• The leadership of the southern civil rights movement left the NAACP and went into the hands of
newer organizations with their emphasis on direct action.
• Sit ins were effective because many merchants would rather give in and serve African-Americans than
lose money by having them boycott, etc.
• Sit-ins began on Feb. 1, 1960 in Greensboro.
• The two risks of sit ins were violence and jail.
• The legal issues coming out of the sit-ins were divided in two ways:
o If the law refused required a business to refuse to serve African Americans, then the decision
to arrest flowed from state law and the case was classic racial discrimination, and the Court
would reverse.
o If the was no state law, the decision not to serve African-Americans was the decision of the
business owner. In such a case, it could be viewed as the rights of private property. Thus,
protesters were likely to loose in this situation.
 (Bell v MD was successful, but it still fell into this category. Sit-in case. Court held
that although private property is involved, it’s property that’s serving the public.)
• Boynton v VA ruled that the Interstate Commerce Act required all facilities of interstate transportation
to be free of discrimination. Therefore, neither the bus nor the terminal could be segregated.
• Boynton led to the “Freedom Rides” of the late spring and summer of 1961.
o Very violent: Conner allowed the Birmingham KKK 15 minutes to beat up the freedom riders
before the police would intervene.
• Although the freedom rides did not bring forth any court cases, they forced the Kennedy administration
to pressure the ICC to adopt regulations to force compliance with Boynton.
• Although expensive, the sit in movement energized young activists and gained publicity.

The Right to Vote

• While only 5% of southern blacks were registered to vote in 1940, nearly 28% were in 1960. The %
was significantly in the South, however.
• The South used literacy tests as a legal device to prevent blacks from voting.
• Lassiter v Northhampton Board of Election sustained the literacy test, stating that it was reasonable,
racially bias, and there was no proof that it was discriminatorily applied.
• The court’s race cases from 1958 -1962 were in a holding pattern. The Court was missing in action in
the school area.

Powe, The Warren Court, p217-238 (Ch 9, “To the Civil Rights Act”)
• There were many riots, one of the most notable being at the Univ of Miss when Meredith attempted to
register as the first black there.
• MLK Jr felt that Kennedy lacked moral conviction, as he was still unwilling to sign a civil rights bill
even as strong as the one Eisenhower backed in 1957.
• Gov. of Alabama, George C. Wallace’s inaugural speech in 1963: “Segregation now…segregation
tomorrow...segregation forever.”
The NAACP Cases
• NAACP v Button was Va’s attempt to handle the way the NAACP and the Legal Defense Fund
handled litigation. Ruled in favor of the NAACP.
o “Since first amend freedoms need breathing space to survive, gov’t may regulate in the are
only with narrow specificity”
• All nine justices found a new First Amendment right to pursue redress by means of litigation.
• Gibson v Fl Legislative Investigating Committee was another NAACP. This case concerned Gibson’s
refusing to bring the NAACP records to a legislative committee hearing.
o Real issue of this case was the attack of the NAACP by indirection, claiming that at least
some NAACP members were communists.
o B/c Fl had not evidence of a relationship between the Communist Party and the NAACP,
there was no compelling state interest and the case was ruled in favor of the NAACP.
 11

• Gibson and Button introduced the idea of chilling effects and breathing space. The two are
complementary concepts dealing with the fear that individuals may have of prosecution and therefore
the likelihood that they will shy away from activity that might result in criminal sanction (chilling
effect) and the necessity that the law be narrowly confined to avoid the this (breathing space).
Mass Demonstrations
• Edwards v South Caroline was the first mass demonstration civil rights case decided by the court.
Peaceful demonstration outside the capitol bldg. Court showed that there were no traffic or pedestrian
problems and therefore there was no reason to have ordered a halt to the demonstration.
Birmingham
• Kennedy unsuccessfully urged King to call off the project C, which was aimed at desegregating
downtown Birm. businesses and hiring black clerks.
• King was arrested and jailed b/c he didn’t file an appeal to the appellate court.
The Civil Rights Bill and the March on Washington
• Kennedy’s civil rights bill was brought to congress a week after his speech addressing the nation about
desegregation.
• The bill would have it so that plaintiffs wouldn’t be required to identify themselves before the public
and that schools that refused to segregate would lose federal funding.
• The March on Washington occurred on August 28, 1963. A quarter million Americans.
School Desegregation
• Prince Edward County in Va went as far as to actually close its public schools to avoid desegregation.
They set up white only private schools and gave white children vouchers to attend. Blacks did not use
the vouchers because they wanted to fight for reinstatement of the desegregated public schools than to
go this route.
The Civil Rights Act
• Lyndon Johnson is now president. Unlike his predecessor (Kennedy), Johnson had moral conviction.
On Feb 10, 1964, the Civil Rights Act passed the House by the overwhelming bipartisan margin of
290-130, 104 of the dissenters being southern Democrats.
The Constitutional Question
• Goldwater and the southern Democrats had argued that the Civil Rights Act was unconstitutional
because they believed it exceeded federal powers and thereby invaded the reserved rights of the states
and that
• The Civil Rights Act of 1964 was upheld in Heart of Atlanta Motel v US and Katzenbach v McClung.
Powe, The Warren Court, p255-265

Freedom Summer
o While well over 40% of Mississippi’s population was Black, the highest in the nation, not even 7% of
the Blacks were registered voters, the lowest in the nation, and far below Alabama, which was second
at 19%.
o The Student Non-Violent Coordinating Committee (SNCC) and the Congree of Racial Equality
(CORE) organized the “Freedom Summer” (summer of 1964) in which northern students and southern
activitsts would come into the state and attempt to conduct a massive voter registration dive. SNCC
hoped that by getting northern whites to see the horrors of the South first hand, they would bring media
attention to Mississippi.
Selma
o MLK Jr chose Selma, Alabama to push for a voting rights act.
o Demonstrations were extremely violent; deaths.
o The Voting Rights act of 1965 was passed in the House by the overwhelming regional vote of 333-85.
o It was the most comprehensive of all the civil rights bills, directed squarely at the south.
o Ordered the Justice Dept. to suspend literacy tests and any other registration tests in any county
where fewer than half the eligible voters were registered or had voted.
o If nec., the Justice Dept could send federal employees to states to register voters.
o No affected state could adopt any new test for registration to vote w/o first getting permission
from the Justice Dept.
o Failed to abolish the poll tax. On this issue, the act directed the Justice Dept. to file suit
challenging the state laws.
 12

o Johnson signed the Voting Rights Act on August 5, and two days later federal registrars were in
Selma and other Black Belt counties were the % of Blacks registered shot up to 52% in Alabama
and 60% in Mississippi.
South Carolina v Katzenbach
o South Carolina led the southern challenge to the VRA of 65. It’s principal arguments were that the statute
was too regional and that the congressional power under the Fifteenth Amend to prevent. The Court
rejected these claims, stating that it was directed at the south because that’s where racial discrimination
was most prevelant, and that Congress could use “any rational means to effectuate the constitutional
prohibition.”
Katzenbach v Morgan
o In this case the court upheld the section of the Voting Rights Act that provided that no person who had
completed the 6th grade in a Puerto Rican school where the instruction was in Spanish shall be denied the
right to vote because of an inability to read or write English.
o Really wasn’t a clear constitutional justification for this, but Brennan somehow got the votes needed.

***

Nahye Hwang nhwang@fas

Powe, The Warren Court 272-302
I. Mass Demonstrations (272)
$ Cox v Louisiana (1965)
$ reversed convictions
$ however, effectively rejected the idea of the 1st and 14th protecting anything beyond pure
speech, such as “patrolling, marching, and picketing” (272)
$ In this era, SC stated that, “the rights of free speech and assembly, while fundamental” do not mean “at any
public place at any time” (273). If ppl allowed to demonstrate freely in the name of constl rgts, anarchy
would result and instead, the constl right to liberty would be lost.
$ Change in Supreme Ct: Although Cox & Brown reversed convic, there was a new era of mobs and anarchy,
rather than seeing demonstrations as an exercise of 1st am rights. (274)

II. Ghettos, Campuses, and the South (274)

$ Civil rights was the nation’s most pressing problem.
$ Voting Rights Act passed in 1965: though legal goals achieved, underlying problems still
lingered.
$ Riots (ie. Watts in 1965); Campus demonstrations during end of Warren era (ie.
Berkeley; Free Speech Movement)
$ moving from peaceful demonstrations –> to “Black Power” & “AfA rage”
$ May 1967: H. “Rap” Brown became leader of SNCC & preached
“guerrilla warfare” against whites
$ Thus in 1966 elections, Republicans won many seats (at the expense of Great Society
liberals) by blaming the riots on Democrats’ “soft” social programs.

III. The Court’s New Attitude (278)

$ Adderley v Florida (1966)
$ right after 1966 elections
$ majority ruling 5-4 (Black): “Trespass trumps the 1st am.” In other words, if you trespass,
you cannot argue protection b/c of 1st am rights, whether the place is public or private.
$ reinforced rejection of constl right to protest whenever/wherever
$ “Cox had begun the transformation of peaceable protest into the fear of the mob;
Adderley completed it.” (278)
$ dissent (Douglas): poor/disadvantaged do not have many options to influence public
opinion besides protest. Though not ALL demonstrations protected, some appropriate (ie. peaceful
protests)
$ new SC stance: Must respect the law
$ ie. Walker v Birmingham: upheld MLKing’s conviction. (later overturned in
Shuttlesworth v Birmingham in 1969)
 13

IV. Protecting Civil Rights Workers (280)- n/a (cases not covered in class)

V. Racial Discrimination (285)

$ Statutes barring interracial marriage and cohabitation were overturned, but the SC stated that some
“necessary” racial classifications were permissible.
$ Loving marked the first time the Legal Defense Fund did NOT argue that racial classification was
invidious. “The LDF was rethinking its view on race and moving from color-blindness –> color-
consciousness” (286).
$ (This section talks mainly of 3 cases that I did not include b/c they were not on syllabus.)

VI. Marshall’s Appointment (290)

$ 1967: Thurgood Marshall joins SC. Symbolic appt by Johnson (first AfA justice). Voted w/majority 95% of
the time.
$ Marshall resolidified liberal bloc, making the 5th vote in addition to Warren, Douglas, Brennan, & Fortas.
(Black, the previous 5th vote, had been defecting on cases of race.)

VII. School Segregation (292)

$ Little had been practically accomplished since Brown. In Brown, SC had been careful to demand
“desegregated” schools as opposed to “integrated” schools.
$ Green v New Kent County (unanimous op by Brennan) marked a change in the SC: though the word
“integration” still not used, the words “unitary” and “results” effectively meant integration.
$ “Green marked emergence of Brown II and its supplanting of Brown in the school
desgreg area” (296). Brown had stated what was prohibited and discouraged taking race into
account. Brown II stated what was required and took race into account.
$ Green supplanted Brown as the governing principle, ending “all deliberate speed” and
demanding changes “now.”
$ SC knew what it was doing between Brown II and Green in “biding its time” with the
goal of eventual integration.

VIII. Statutes Old & New (299)

$ The SC was not perfect. Indeed, they were criticized for being a part of white society. But the
SC/litigation/ct decisions were still seen as the way to change society (301), though the solution was
actually not so simple. However, even the SC and the executive branch saw the law as the key to a better
society–that if instead of riots, AfAs should “play by the rules.”
$ In other words, the message of the exec + legis branches were: “reliance on the good faith of the gov’t was
the appropriate means for achieving social change.” Though it was not perfect, it was better relative to any
other period.

***

Jocelyn Hsu jdhsu@fas

Schrecker, Many Are the Crimes, pp. 3-41.
The American Communist Party: “We Were Sitting Ducks”
The World of American Communism
-Socialism offered an explanation and alternative for inequalities; Communism was active in doing something about it
(reason for joining it)
-both progressive political reform movement and a Soviet-led conspiracy
-Communist Party may have shaped the repression against itself
-communism movement had more autonomy than their dues-paying colleagues and were not directly subject to the
party’s discipline
-discipline and conformity was part of CP identity; more discipline than true Communists who should be following the
party line exactly
-Marxism-Leninism: international communist movement controlled by the Soviet party
-Marx’s prediction of inevitable decay of capitalism and triumph of working-class revolution (was not certain how this
would come about, so there became different groups)
 14

-Lenin: highly centralized and disciplined party of professional revolutionaries (necessary because of conditions Russian
Socialists faced)
-Lenin created the first state powered communism, so CP everywhere organized under his style—conspiracy, unrealistic
game plan and all
-US part problems worsened by weak support for Socialism: America was a diverse working class that bought into the
American dream; CP’s secular emphasis didn’t help
-so the US CP tried to become less radical, until members somehow realized the ultimate agenda; struggle to find a
balance
-the party was still relatively influential for its size because its discipline and activism
-CP was unique because many became full time—professional activists/cadres
-depending on time and place, experiences with the party were varied
-international socialist movement during WWI split American Socialist party
-identification with Soviet before Cold War gave it credibility
-Red scare of 1919-20 forced a conspiratorial aura upon the CP while underground
-outside the far left, Communism did not much impact society 1920s; repression did not encourage radicalism
-most CP foreign born bc working class was, and despite Comintern pressure was not Americanizing self
-Depression gave CP an audience; doing something in midst of despair
-mobilized unemployed workers and marched to local city hall demand relief
-militant unions
-Earl Browder became new CP boss; party’s line softened
-CP joined Popular Front: anti fascist movement when showed Hitler menace to Soviet Union and working class; so
appealed to urban, upwardly mobile, 2 gen. American Jews
-When Soviet Union signed non-aggression pact with Hitler, was a blow to Amer. CP
-embraced the bourgeoisie until a letter from Moscow declared it was revisionist
-reoriented strongly to the left and reinforced by the repression that seemed to prove the coming of fascism; security
became tight and expelled any a risk members
-Kremlin that described Stalin’s crimes was the last blow to the morality of the CP
-party’s characteristics that made it easy to demonize: secretive org., defend Soviets, lack of democracy, increasingly
self-absorbed, underground offshoot been at service of the Kremlin, Cold War=descent underground—alien and
conspiratorial
-CP was influential beyond party labor struggles, CIO of unions, car industry strike, waterfront unions, electrical
industry
-in dealing with non-econ political issues, made CP-led unions easy to ID as Commuist
-important influence: race relations and equality; partly result of pressure from Moscow
-influential in Scottboro case 1931 defense and international outrage, picketed segregated public places, tried to create
own personal multiracial community, offered blacks leadership positions
-outside NY, CP elections not really victorious; most important and ill-fated 3rd party venture=Henry Wallace of
Progressive Party; hurt campaign and own party
-front groups associated with CP were created
-some were purely members, others actually coalitions between members and nonmembers for a cause:
National Lawyers Guild—left wing, liberal lawyers alienated
-during cold war, all groups came under attack, most died
Summary: the Cold War crusade against the American CP was not random. The Communist movement gave it the
specific targets and weapons to use against it. The party facilitated the process that eradicated Communism from
American society. Sets the scene of the CP in society when the Warren Court entered the scene.

***

Jia Han jiahan@fas

Mon. October 25—lecture
2 Katzenbach cases turn on two provisions of the Constitution
Commerce clause: Allows Congress to regulate Ollie’s BBQ
Section V of 14th Amendment: Congress shall have power to enforce
Katzenbach v. Morgan

Civil Rights of 1964 was first real break of the Southern filibuster
 15

Succeeded again with Voting Rights Act of 1965

Rehnquist Court’s actions in these areas

Commerce Clause: limit its scope with Lopez case
Since 1992, the Supreme Court has denied Congress the broad power granted in Katzenbach

Civil disobedience and Civil Rights Movement

MLK combined two different political traditions of civil disobedience

Ghandi: going to jail is the highest respect for law
Only works when oppressor and the oppressed can understand each other
Tomistic natural law: Any positive law contrary to natural law is not law and need not be obeyed. Thus,
one does not need to accept the penalty for disobedience

If we took MLK literally in Letter in Birmingham Jail, Brennan would be compelled to send demonstrators to jail
because that would be the fulfillment of civil disobedience. What Brennan chooses to do is to uphold the civil rights
movement because civil disobedience is being used to achieve a just society.

Relation to broader theme: Is it possible to have civil disobedience without anarchy? What does that mean for civil
disobedience in a democracy
---
Lecture Monday October 25, 2004
Civil Rights Cases
on 2 provisions of constitution: 1) commerce clause 2) cut down sect 5 of the 14th Amend
Katzenbach v. McClung (1964) History (SB: 311):
• Civil Rights Act, 1964 - explicitly says, you must desegregate. Congress holds that Ollie’s BBQ (which
practiced segregation) = within interstate commerce clause (ICC) jurisdiction
• Court never struck down any ICC laws : 1992: Lopez case = 1st time since 1937 that the courts limited the
powers of congress under the commerce clause
• New Deal settlement – ICC would justify constitutionality of civil rights amends?
• Holds as in Bell v. MD that 14th amend prevents discrim in public places even w/o CRA
Katzenbach v. Morgan (1966) History:
• Blacks had been disenfranchised in most states – leading most white south to move into GOP part
• absolute stable of southern politics since civil war
• Voting rights act of 1965: NY residents challenged the law under commerce clause: allowing Puerto Ricans to
vote even though they read Spanish, not English.
Sect 5 of 14th Amend: about enforcement
“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” –
previously had only been tested once”
• 1st time since 14th amend is ratified that SC fullly considers of the powers of congress under sect 5
• Q: Is there any constitutional limit to congress’ power? Under sec 5? Commerce clause?
• Brennan broadly defines power of congress by saying that Congress can define for self what is necessary; Ex.
since then using sec 5 to remedy inequalities: VAWA (Violence Against Women Act), guns near school –
Brady Bill; ADA (Americans with Disabilities Act); Rehnquist has severely limited Congress power
Civil Disobedience (252)
• MLK: Letter from Birmingham Jail – ok to tell ppl to obey desegregation decree in Brown: One who breaks
unjust law w/ willingness to accept the penalty - expresses the highest respect for law
• Ghandhi – 1st to say civil disobedience = peaceful. More than just just recapturing own justice – idea of creating
self-conscious understanding in oppressor
• MLK’s highest conclustion of going to jail is in that tradition
- the basic idea = law is just, but application is unjust; show by peaceful example that law = unjust
- MLK: manages to weave 3 diff tradition of higher law into 1 document
1) tomistic natural law – any positive law contrary to natural law it NOT A LAW – doesn’t need to be
obeyed at all – or else = self-flatulation – to be punished under it = to be punished unjustly
2) higher law
 16

- rooted in Christian tradition that one is endowed by natural creator with “pursuit of life, liberty, and the
pursuit of happiness property”. Natural law trumps positive (human) law
- Garrison: One does not have to act under fugitive slave laws – or look to constitution bc of higher std
- Decl of Indep = based on universal self-evident truths: is advocating disobedience to higher authority
3) Ghandhi:
 did MLK confuse the 1 & 2?
- Looked more to Ghandhian idea – which isn’t a legal formulation, but a notion of political strategy to
achieve a moral political end – but no one’s talking about sitting in jail in order to disobey Brits when laws
are unjust  justification for disobedience of draft dodging in Vietnam War
* Brennan: If take MLK literally: when Brennan looks for ad hoc justific in Bell v. MD – not prepared to hold that
14th amend = in & of itself bars private racial discim until CRA.
- Brennan, by reading MLK’s letter – thinks that he doesn’t need to worry ab jailings
- Brennan thinks – question of LEGITIMACY still matters – not prepared to say its constitutionally
legitimate – will do everything possible short of a wrong interp of the law, to uphold the CRM (Civil
Rights Movement) bc of believe that CD (Civil Disobedience) = in the aide of a just society
• says to MLK that must listen to Brennan – CD = ab challenging the moral legitimacy of law = and how do you
reconcile with anarchy? And it continues to be the problem.

Murphy, The Constitution in Crisis Times, 1918-69 (excerpts)

This article serves as backdrop for the Cold War McCarthy cases.
• starts by describing the infamous scene in which Sen Joseph McCarthy gives a speech and claims he has the
names of 205 Communists in the US State Department in his hand and launches the nation into Cold War
paranoia.
• 1946: House Committee on Un-American Activities establishes the permanent Senate Investigating
Subcommittee to investigate subversive agents within the US gov
• HUAC used aggressive tactics and disregarded procedural safeguards, including: browbeating witnesses, not
allowing them to have access to counsel, using one’s past affiliations and activities to establish guilt.
• Many witnesses took the 5th Amendment in refusing to answer questions that may incriminate, but their refusal
to answer was unfairly used agains them earning them the label “Fifth Amendment Communist”
• Vinson Court was supportive of the loyalty-security argument for disposing procedural safeguards
• Vinson court upheld Smith Act convictions in the Dennis case, which Black an Douglas adamantly objected too
as “water[ing] down the First Amendment” (367)
• Article discusses Dennis case as elucidating the relationship between free speech and action as the defendants
were not charged with the actual overthrow of the government under the Smith Act, but the intention to form a
party to teach the overthrow of the government.

Belknap, Cold War Political Justice, pp. 9-12, 15, 16-19, 21-27
significance: details the history and circumstances leading up to the Smith Act which persecuted Communists
• post WWI: nearly 30 “Red Flag” states enacted statues prohibiting symbolic expression of radical ideas, 20 for
criminal syndicalism (preventing labor organizing) and other anti-radical measures resulting in the
imprisonment of 300 dissidents between 1991-1920.
• Commie party attracted members during the Depression even gaining legitimacy with new unions including the
Congress of Industrial Orgs (CIO)
• New Deal: immediate demand for 250,000 new bureaucrats meant lots of Communists found jobs in the federal
government
• National government not as anti-radical as some state governments but it did begin to use deportation
procedures against convicted alien radicals resulting in the formation of the Int’l Labor Defense (ILD) whose
strategy of relying on the masses rather than legal tools would prove costly
• 1935 McCormack-Dickstein committee report called for legislative action to defend Americans by
criminalizing the advocacy of government overthrow – Communists and drew widespread support from a the
American Legion, to veterans groups, to DAR, and ROTC.
• The ACLU, academics, publishing industry, and much of the press strongly opposed the McCormack-Dickstein
report which stymied anti-Communist sedition legislation in Congress that year
• However, by 1939, Rep Howard Smith (D-VA)’s proposed bill with disaffection and sedition provisions drew
on both anti-communist and nativist fears of foreign influences forming a subversive “Fifth Column” and the
Smith Act passed in the House.
 17

• WWII loomed in the distance and the discovery of and then dissolution of the Hitler-Stalin pact sent the
CPUSA into a tailspin. The Smith Act was signed into law by Presidental Roosevelt on June 28, 1939 in the
name of security

Dennis v. United States (1951)

McCarthyism:
partly from: http://www.oyez.org/oyez/resource/case/100/
• Facts of the Case: In 1948, the leaders of the Communist Part of America were arrested and charged with
violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate
the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts
upheld the conviction.
• Question Presented: Did the Smith Act's restrictions on speech violate the First Amendment?
• Conclusion: In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found
that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that
there was a distinction between the mere teaching of communist philosophies and active advocacy of those
ideas. Such advocacy created a "clear and present danger" that threatened the government.
• Judge Vinson wrote the majority opinion that the Government does not need to “wait until the putsch is about to
executed” to put an end to subversive and dangerous radical activity, making a Nazi reference to Hitler’s
activities as well. The Court held that success or probability of success was not necessary to justify restrictions
on the freedom of speech.
• Frankfurter’s concurrence performs a balancing test which finds in favor of restricting First Amendment
freedoms for safety from possible endangerment by Communist organizing
• Jackson also concurs that “conspiracy” to overthrow the Government is not a right, so since the ends of
punishing the teaching or advocacy of the violent overthrow of the government is not forbidden, neither is the
power to punish conspiracy for that reason.
• Black dissents that First Amendment rights should be absolute and placed in a “high preferred place where they
belong in a free society”
• Douglas also dissents by applying the “clear and present danger” standard for restricting speech and arguing
that Free Speech should be “the rule, not the exception” and that the Communist party has been sufficiently
crippled in the US that it does not constitute a legitimate threat to America.

***

Alla Khaskelis khaskel@fas

Watkins v. US (1957) – McCarthyism Case
-Court’s opinion delivered by CJ Warren
-Watkins was summoned before House Subcommittee on Un-American Activities two times. Though he answered
many different questions, he refused to answer those that deal with Communist Party membership. He was held in
contempt by the Congress and convicted by the Court of Appeals
-Warren argues that though Congress has broad power to conduct investigations, it must have reasons for such
inquiries, not just exposure for the sake of exposure
- Bill of Rights (i.e. First Amendment rights) is applicable to such investigations
and cannot be abridged
- petitioner Watkins argues that the inquiry against him was conducted for the sole purpose of exposure,
to unduly punish people for their past beliefs and associations, and therefore, this is beyond the scope
of the committee and a violation of the above-mentioned rights
- Warren suggests that the House Un-American Activities Committee has too broad of a purpose, which
makes it impossible for the court to decide whether the committee has a legitimate reason for such
investigations. Therefore, the court cannot determine whether such questioning was necessary because
the committee itself does not adequately define what the purpose of this investigation is.
-The Court ruled in favor of the petitioner, stating that Watkins was not accorded a fair opportunity to determine
whether he was within his rights in refusing to answer. Therefore, his conviction is invalid, under the Due Process
Clause of Fifth Amendment

Justice Frankfurter concurred with the Court’s opinion

 18

-the scope of inquiry must be unambiguously defined so as to protect people from the violations of their Due Process
Clause rights.
-clarity of the scope of inquiry is essential so that witnesses will know whether or not their refusals to answer may
lead to conviction or not
-therefore, prosecution for contempt, which befell Watkins, can only be legitimate if the petitioner was given ample
opportunity to be aware of the relevance to the Congress of the information he refused to disclose. This was absent
from the current case

Justice Clark dissented

-House committees were given power in exceedingly broad terms and there is a reason for this- to make full and
complete studies
- the restrictions on broadness of inquiry by the court in this case limit the breadth of the investigation of this
committee, may possibly spread to other committees, and cripple the committee system beyond workability
- in the current case, the pertinence of the question is obvious because Congress needs to know the extent of
infiltration of communism in labor unions. This is a serious matter- after all, the Iron Curtain enslaved many
formerly free counties. Watkins’ refusal to answer prevented the committee from learning this information, which
could have been crucial to the investigation and the only way to approach the question.
- Clark doesn’t see how this was an infringement on the First Amendment, because the court here is honoring
Watkins’ right to silence, which is not part of the amendment’s guarantees.
- moreover, Watkins was protecting his associates, not himself, from embarrassment (he already admitted his own
involvement), and one cannot invoke the constitutional rights of another.

Sweezy v. New Hampshire (1957) Also McCarthyism case

-Defendant convicted of contempt in failing to answer some of New Hampshire’s Attorney General’s questions
about subversive activities that he did not consider pertinent to the subject under inquiry. He refused to disclose the
names of people with whom he was acquainted during his involvement with the Progressive Party
-CJ Warren wrote the opinion of the court, J’s Black, Douglas, and Brennan join
-like in Watkins case, question in this case is whether the investigation deprived Sweezy of his due process right
under the Fourteenth Amendment
- Court announces that power of state does not compel such disclosures
-Warren discusses the minimal definition of subversive persons as those that “aid in the commission of any act
intended to assist in the alteration of the constitutional form of government by force or violence”. Warren believes
that this definition is very inclusive.
-two subjects are brought up by this case: the nature of Sweezy’s University of New Hampshire lectures and his
knowledge of the Progressive Party and its members
-Court maintains that freedom is essential in universities because democracy
depends on the teaching of the youth, and a “straight jacket” on intellectual
leaders can be detrimental to the future of American youths and the nation itself
-political freedom of the individual is also fundamental to democracy, and
infringement of this freedom (guaranteed by the First Amendment) is a violation
of individuals’ right
-Warren + court cannot conceive of any circumstances that would justify the infringements into such rights
-NH Attorney General was given very broad instructions in his inquiry, and since he determined what questions will
be asked, about whom, and of who, it is not firmly concluded that there were clear leads on the people whom
Sweezy was interrogated about. Therefore there is no assurance that the questions Sweezy refused to answer were
essential to the inquiry that the legislature instituted, and therefore, these questions must be considered as the
absence of authority

J’s Frankfurter and Harlan concur

-court has limited power to review the action of the states (therefore, this case is different from Watkins) granted by
14th Amendment
-it is not important here to distinguish between Attorney General and the legislature as a whole
-Sweezy clearly indicated through his answers that he had never been involved with the Communist party or any
Communists. He answered virtually every question on the topic. He had never advocated the overthrow of the US
government by force or violence in any way. Therefore, government suspicions were already not as potent.
Moreover, the investigation would cripple his freedom to lecture at the university
 19

-intrusion into university life is not justified by the legislative fears because it is very valuable for the society to
learn about communism and analyze it.
-application of Frankfurter’s balancing test in favor of Sweezy here: the benefits of universities’ freedoms are more
important than government’s inquiry in this case

***
Deddeh Ballah ballah@fas
Wed. Oct. 27—lecture
Fri. Oct. 29—lecture
Powe, The Warren Court, pp. 75-103

***

Sean Wilson sdwilson@fas

Yates v. United States (1957)
summary: petitioners were convicted under the Smith Act for advocating the necessity of overthrowing the
government and for organizing as the Communist Party a group advocating such overthrow. The convictions were
reversed on two main grounds: the term “organize” was construed inappropriately by lower courts, and the trial
judge gave improper instructions to the jury. Without explicitly overruling Dennis, the Court took all the bite out of
both it and the Smith Act. Harlan wrote for the Court.

$the term “organize”

$petitioners claim that “organize” means to “establish” or “bring into existence,” based on which they
argue that the Communist Party (CP) was organized by 1945
$the government argues that “organize” connotes an ongoing activity, including recruitment of new
members
$petitioners have the correct interpretation
$criminal statutes must be narrowly construed, so “organize” must be taken in the narrow
sense
$thus, the three-year statute of limitations barred the government from successfully making
the organizing charge against the petitioners
$instructions to the jury
$petitioners argue that the instructions were flawed because the trial judge failed to charge that a
conviction for advocacy must rest on its propensity to incite others to action; they believed that
their advocacy lacked this “incitement” quality and so should be protected by the 1st Amendment
$the Court held that, divorced from incitement, advocacy of forcible overthrow (as an abstract
principle) was not prohibited by the Smith Act
$the government cannot rely on Dennis, although it is not explicitly overruled
$what Dennis said was that advocacy linked to incitement, given a group of “sufficient size
and cohesiveness,” was prohibited by the Act
$the advocacy in this case was “too remote from concrete action” to have the incitement
character of prohibited advocacy
$thus, the trial court gave bad instructions to the jury

Belknap, Cold War Political Justice, pp.236-48, 279-82

summary: this article examines the Yates decision (and related cases), and explains the reason that the Court all but
explicitly reversed its decision in Dennis. The conservative members of the Court (Harlan and Frankfurter) changed
their views because they were worried about the excesses of McCarthyism.

• the Eisenhower appointees

• prior to his appointment, Warren had been comfortable with using anti-radical rhetoric to his political
advantage
• he shifted to the left due to concern about McCarthyism
• Harlan was disturbed by the reactionary hysteria surrounding the communist witch hunt; he was basically
unconcerned about the communist “threat,” which he viewed as incapable of posing any serious danger to
America
 20

• Brennan was decidedly against McCarthyism; only Sen McCarthy voted against him during his confirmation
hearings
• a change in judicial climate
• the Court began to review Smith Act cases in 1955 (four years after Dennis), of which is reversed and
remanded several, although largely on procedural grounds
• despite its procedural solidity, the Court agreed to review Yates
• the justices were seeking to weaken the Smith Act without explicitly overturning Dennis
• Yates provided a convenient opportunity to do this, especially given the wide variety of challenges posed
by the defendants
• the Court latched onto the “organize” challenge and the trial instructions challenge
• in argument, the communists' lawyers performed well, and the government stumbled in presenting its
case
• on the same day it handed down Yates, the Court also announced several other anti-McCarthyism decisions,
including Sweezy
• the Harlan-Frankfurter reversal
• originally supporters of the Smith Act, Harlan and Frankfurter found themselves voting against the Smith
Act in Yates because they had both become worried about its excesses
• Frankfurter was able to find sufficient problems with the evidence to permit himself to reverse his earlier
vote in Dennis
• Harlan wrote a lengthy and complex opinion that allowed him to reverse the conviction of the defendants
without overturning Dennis
• advocacy must incite action, not merely explain ideas
• as far as the Court was concerned, the government had only succeeded in showing that the defendants
were members of the CP
st
• Black believed that all of the convictions violated the 1 Amendment, but this simple constitutional argument
was too much of a reversal to be included in the Court opinion
• Yates eviscerated the Smith Act
• the aftermath of the Smith Act
• all of the Smith Act defendants were eventually freed or pardoned
• despite its hysteria, the US never totally forgot the ideals embodied in the Bill of Rights
• nonetheless, the Smith Act “trigger[ed] the organizational collapse of American communism,” as well as
stifling legitimate dissent
• federal agencies shifted their attacks to other types of dissidents, many of whom were more peaceful than the
CP
• all told, almost no one profited from the Smith Act prosecutions

Shilts, Conduct Unbecoming, pp.105-11

summary: homosexuals were targeted along with communists, labeled “security risks,” fired from government jobs,
and spied upon by the FBI. Much of this was done at the behest of J. Edgar Hoover, the director of the FBI and a
homosexual himself. Eventually, the FBI found itself unable to justify investigations based on “national security.”

• gays were easy targets for blackmail because many preferred to remain “in the closet”
• the communists may have wanted to blackmail homosexuals themselves
• Senate pressure caused widespread firing of gay government employees
• many states required the registration of anyone convicted of a gay-related crime
• Hoover had a huge role in equating homosexuality with disloyalty
• Eisenhower bowed to political pressures, letting this persecution slide
• no one would stand up for gays, including the ACLU
• Hoover himself may have been implicated in homosexual publications; there is reasonable evidence that was
gay and wished to keep this fact out of the media
• he authorized FBI spying on gay leaders and publishers
• these investigations had little merit
• the FBI also compiled lists of known homosexuals, which were so widely known that the military services
began compiling their own lists
• by the 1960s, the FBI could no longer claim national security concerns to justify the investigations
 21

***

Sonia Torrico torrico@fas

Bentley, Thirty Years of Treason, pp. 575-77, 601-12, 686-708
1. Main point(s) of the readings
“The Infiltration of Harvard” – Dennis v. US and McCarthyism
- 4 Harvard faculty members were targeted as communists and questioned about their affiliations
- they were seen as potentially influential because of the way that they were respected by their students and
other undergraduates that admired them and their position
- informing HUAC about past allegiances to the Communist party was likened to informing the police about
arsonists (except for the fact that associations aren’t really a crime) because of the ‘clear and present
danger’
o the writer challenges back: “there is not a clear and present danger of the kind he [the committee
member] envisages, and it is quite dubious whether such utter ruthlessness is simply imposed upon
us without any question” (p. 577) meaning that people just accepted ‘the threat’ without
questioning it
- the text also cites ‘informers’ (people who told of the activities and membership of the Communist Party)
were usually “‘phony’ because their motives are seldom free of personal malice and perhaps suprapersonal
vindictiveness” (p. 577)

Daniel J. Boorstin – Sweezy v. NH, Dennis v. US and McCarthyism

- he was an Assistant Professor at Harvard and had participated in the Rhodes Scholars program while at
Oxford. he was also a member of the Communist party for a while and is asked to name the reasons why he
quit the Communist Party (because he found out they had anti-Semitic views) as well as the names and
activities of participating members
- Boorstin stated over and over again how loyal he was to the US and was very cooperative in answering
questions; not once did he say anything about his rights to freedom of association, etc.
- he also assured that while he was a member, it did not affect his teaching skills and that he was glad to no
longer be a member because he felt he was now free from other opinions and that was how educators
should be: “no one should be employed to teach in a university who was not free intellectually, and, in my
opinion, membership in the Communist Party would be virtually conclusive evidence that a person was not
intellectually free” (p. 610)
o the questioner implied that the Party dictated what people could teach and reinforced the fact that
“the Soviet government is out to destroy our form of government” (p. 612) as closing remarks

Peter Seeger – McCarthyism

- was a folk singer who had sung at all types of performances, some of which were sponsored by the
Communist Party—which is why he was suspected
- “I am not going to answer any questions as to my association, my philosophical or religious beliefs or my
political beliefs, or how I voted in any elections, or any of these private affairs. I think these are very
improper questions for any American to be asked, especially under such compulsion as this” (p. 688)
- the questioner tries to imply that he is exercising the fifth amendment right to not self-incriminate but
Seeger denies this and reinforces first amendment rights
- “he was sentences to a year in jail but appealed his case successfully” (p. 700)
- an article is also included that details the way people were unfairly “blacklisted” for speaking “anywhere
that the subject was peace or prejudice, and never thought to give a damn who the sponsoring organization
was. Nobody ever tried to tell me what to say” (p. 703).
o This characterized the plight of most artists, in their youth especially, and their futures were ruined
because of McCarthyism and suspicion later on
- “Who can ever fully understand what fear can do to man?” (p. 706)
o the reason why people cooperated with McCarthyism

2. How do these points fit in with the court cases of the section?
- the issues here are that in times of danger, people can be made to forget their constitutional rights (i.e. 9/11)
and, especially, that of others
 22

o it is important to note that the imminent danger of Communism was constantly reinforced to keep
witnesses cooperative and the public equally supportive of these trials
- Dennis v. US (1) because of the fact that these professors didn’t even actually attempt any sort of overthrow
of the government, they were tried because they were teaching something potentially harmful
- Sweezy is also important because it talks about academic freedom, something that is guaranteed under the
first amendment and not respected here

3. How do the themes of the readings fit into the course as a whole?
- this entire era is important because it demonstrates the effects that a time ‘clear and present danger’ can
have in countering progress toward freedom of association and speech and the reason why cases like the
NAACP v. Button and NAACP v. Patterson were all the more important later on
- this is also pertinent to the disagreements that the Justices had concerning methods of interpreting the
Constitution: some like Brennan argued for the absolute authority of the first amendment and making no
law against it where others were concerned with the ‘clear and present danger’ clause

Jim Levine jlevine@fas

Bentley, Thirty Years of Treason, 789-825

***

Dominique Nong nong@fas

Powers, Secrecy and Power, pp. 275-82, 285-305, 319-23
This reading discusses the actions of J. Edgar Hoover as the nation’s chief domestic intelligence and leader
of the Federal Bureau of Investigation (FBI). One of Powers’ main points is that Hoover’s many political
maneuvers and actions were guided by his deeply-held antagonism towards communism and his moralistic outlook
on life. It is emphasized that Hoover switched political allegiances, not only for political survival, but also to protect
his moralist views against communism and its threat to national security. Powers describes Hoover as a professional
dedicated to domestic security and “a lifelong anti-Communist who associated communist with everything that
threatened his own basic values.” (277) Hoover seemed almost obsessed with communism and focused most of the
FBI’s attention during the Truman era on the potential war with the Soviet Union. The reading presents a sketch of
Hoover’s active and controversial political life during the Cold War era and the Truman administration. The reading
contains a lot of detail I doubt we need to know, but a key phrase that provides a context of these details is the
description of the “two sides” of Hoover’s role: “the domestic security profession who was acutely aware of the
hazards of neglecting any sign of danger, and the moralist who was always prone to turn his operation into
dramatization of right and wrong, particularly when the conflict involved Hoover’s historical enemy, communism”
(277). Hoover is also described as one deeply committed to preserving the reputation of the FBI as a professionally
competent agency.
Hoover’s job was to detect and report any “signals” of spies, saboteurs and subversives threatening the
safety of the US. A main threatening force was the spread of bolshevism around 1918 in Europe and the threat of
the Soviet Union in the 1940s. Hoover had a very friendly relationship with the executive branch under Roosevelt,
but when Roosevelt passed away and Truman took office along with Tom Clark (former Supreme Court justice)
as Attorney General, Hoover felt the need to “cement his alliances with the conservative anti-communists in
Congress and throughout the country who were his natural patrons and clients” (277). Hoover and his liberal
administration viewed Hoover as an “enemy of civil liberties.” During the time of heightened fear of communism,
Hoover followed a “no evaluation policy” bolstered by his belief that “his duty was simply to pass along every
signal of danger he received—it was his superiors’ responsibility to separate the signals from the noise” (279). This
point is key because during that time, there were hundreds of thousands of allegations against supposed spies, many
of them blatantly bogus. Powers believes that the volume of Hoover’s warnings about the rise of American
communists and the infiltration into the US government of communist spies arose from a “Pearl Harbor syndrome: a
determination that in case of enemy attack he would have documentary proof that he had not been caught napping”
(279) (think of the parallel 9/11 commission today).
One of first concrete instances that fed Hoover’s dislike of the Truman administration was the Amerasia
case (June 1945) in which John Service and 5 others were charged with leaking classified State Department
documents to Amerasia, a “left-wing diplomatic journal” (279). The Justice Department settled the case on reduced
charges thus fueling Hoover’s suspicion of the “lack of real seriousness in the administration’s attitude toward a
serious national problem, the unfolding evidence of widespread Communist espionage” (280). Hoover became
 23

further frustrated with the White House’s ignoring of his warnings when Truman appointed Harry Dexter White to
the International Monetary Fund (IMF) in June 1946 despite Hoover’s repeated strong warnings that he was a spy.
Powers suggests that Hoover was so determined to report spies, not only because it was the FBI’s “statutory
authority to enforce the Espionage Acts and the Hatch Act” (281) but also because during a time of international
tension, he needed to “produce spectacular spy cases to prove the situation was under control” (282).
Because communism was the main political issue at the time, Truman created a Temporary Commission
on Employee Loyalty in order to counter the Republicans’ control of the House and Senate and internal security
controversy. Truman and the Commission followed through on some of Hoover’s recommendations, including the
creation of a Loyalty Review Board with the power to “ ‘approve or overrule’ departmental decisions regarding
loyalty of employees” (285). However, their implementations retricted the FBI and pushed Hoover to finally break
with the Truman administration and renounce his “historic allegiance to the executive.” Disappointed with Truman’s
Loyalty Program, Hoover agreed to give testify about communism before the House Un-American Activities
Committee (HUAC) on March 26, 1947. In this testimony, Hoover endorsed HUAC’s “crusade to keep
‘Communists and sympathizers out of government service’ and expressed his dissatisfaction with the government’s
unwillingness to take the FBI’s warnings seriously. Powers claims that “Hoover’s appearance before the committee
announced his alliance with the antiadministration Red hunters. In joining forces with HUAC, Hoover achieve
formal recovnition as the senior partner, the leading power of the anti-Communist right.” (289).The result was that
“the popular press looke to him [Hoover] for authoritative official statement on the Communist menace” (291)
instead of Truman.
Powers claims that the 1948-49 Smith Act prosecution of the national leadership of the Party was the most
important domestic security case of Hoover during the Truman years (292) (also known as the New York Foley
Square Federal Courthouse trial). This Smith Act trial prosecuted 11 members of the Communist National Board
and was a huge blow to the party because Herbert Philbrick, one of the Party’s most trusted colleagues, and others
(including Angela Calomaris) testified against the Party. All 11 were convicted. Hoover followed up over the next
few months with the second echelon trials but finally ended his “Smith Act drive” around 1954 when he realized
that unmasking so many informants hurt security intelligence.
A major event was the trial of Alger Hiss, which officially began in 1949, though its controversy began
earlier. Alger Hiss was “by far the most important government official yet accused of being a Communist.”
Truman made the mistake of referring to the charges against Hiss as a “red herring to divert the public’s attention
from inflation.” (297). Hoover was heavily invested in this trial because its outcome would prove the credibility of
his sources and witnesses like Whittaker Chambers, Igor Gouzenko and Elizabeth Bentley (who also provided
information on William Remington, Cedric Belfrage and other key cases of the late 1940s). A hung jury ended the
first trial, but a comment by Hiss in which he denied ever knowing Chambers, led to his downfall. Richard Nixon
encouraged prosecuting Hiss for perjury and in 1950, Hiss was found guilty on two counts of perjury. (Nixon’s
actions regarding this case are seen as the start of his rise in power). The Hiss case supposedly “revolutionized
public opinion” on communism and virtually eliminated talk of “red herrings.” “The Hiss case had the effect of
placing the burden of proof on the accused, insead of the accuser” and can be seen as a “diasaster for American
liberalism” (300). After the case, Truman lost credibility and created a “power vacuum” that Nixon and McCarthy
sought to fill. Nixon gained a lot from his role in the case and Hoover felt that the FBI didn’t receive enough credit,
so Nixon worked to appease Hoover. Powers states that “the final lesson of the Hiss case was that the public should
defend Hoover and the Bureau against anyone who would compromise their independence” (301).
Hoover’s greatest spy case during the cold war was that of Julius and Ethel Rosenberg in 1951, who were
sentenced to death for passing atom bomb secrets to the Soviets. Judge Irving Kaufman imposed the death penalty
because he “saw the Rosenbergs’ execution as a way to signal that the legal system was enlisted in this battle
[against communism]. Hoover remained uncharacteristically quiet about the case because Hoover knew the secrets
passed by the Rosenberg’s weren’t actually atom bomb secrets and Hoover saw the case as a strategical failure on
his part for the Rosenburg’s crime was their failure to provide information the FBI needed to prosecute the real
perpetrators, Harry Gold, Fuchs, and Greenglass.. The “crime of the Century,” the theft of the atom bomb
secrets, was committed not by the Rosenbergs but by Klaus Fuchs, a German-born English scientish.
In 1953, Hoover again appeared in front of Congress and signaled his loyalty to the new administration of
Eisenhower. Since then, any attack on Eisenhower was an attack on Hoover and the FBI. Hoover also had good
relations with Senator Joseph McCarthy who, along with HUAC, was useful to Hoover’s anti-communism
campaign. However, McCarthy did not fully support Eisenhower and Hoover sided with Eisenhower because he
believed that “one of the evils of communism was its attack on lawful authority, so anticommunism, to be authentic,
had to defend that authority, not attack it” (322).
 24

In 1954, the Army-McCarthy hearings (a national sensation) began and led to the downfall of McCarthy
who apparently falsely claimed that a letter he was using as evidence in the case was a “carbon copy” of one sent
from Hoover. Controversy ensued and McCarthy was discredited publicly and by President Eisenhower.
A recurrent them of the article is the understanding that Hoover adjusted his alliances in order to strengthen
the FBI and also in order to achieve his “vision of a secure, anti-Communist America” (323).

***

Week 7
Michael Kalin kalin@fas
Mon. November 1—lecture
Main points of lecture: In 1957, Justice Harlan and Justice Frankfurter seemed sympathetic to the liberal side of the
campaign against McCarthyism (see Konigberg I below), but the two justices later switched to side with
conservatives Clark and White. Professor Horwitz reviewed the details of Konigsberg I and II (see below).

Professor Horwitz also demonstrated Harlan and Frankfurter’s transformation through the following comparisons:

Harlan in Yates: argued that “abstract” ideas protected by 1st amendment

Harlan in Scales vs. United States: Harlan used balancing test on the side of sending Scales to jail

Frankfurter in Sweazy: academic freedom is paramount

Frankfurter in Uphouse vs. Wyman: Frankfurter upholds academic dismissal on grounds of Communist leanings

Discussing the Barenblatt case (see below), Professor Horwitz explained that Justice Black dissented to Harlan’s use
of the balancing test. For Black, the balancing test could be used to conform to any decision. Black remained
dedicated to his absolutist position concerning the 1st Amendment.

Professor Horwitz reviewed the three contrasting ways of interpreting 1st Amendment freedoms:
1. Absolutism: Justice Black; literal translation of “congress shall make no law”
2. “Imminent and substantial danger”: Holmes and Brandeis
3. Balancing test: Harlan and Vinson

Professor Horwitz explains that Justice Black argued that the “clear and present danger” standard was diluted in
Dennis vs. United States through its application to the balancing test.

Horwitz concluded the lecture by showing how Justice Brennan’s creation of the “chilling effects doctrine” in
Speiser vs. Randall resolved the 1st Amendment interpretation disagreements (see case below).

Konigsberg v. State Bar of California (Konigsberg I) (1957)

1. Konigsberg v. State Bar of California (Konigsberg I) (1957)
2. Section: The Dismantling of McCarthyism
3. This case helps explain the later Court’s reluctance to interfere with repressive government legislation
during the McCarthy era.
4. Decision vote: ?
5. Majority opinion: Justice Black
a. Justification: No evidence that suggests bad or disloyal moral character in Konigberg
6. Dissenting opinion: Justice Frankfurter
a. Justification: federalism grounds
7. The case reversed a decision by the California Bar Examiners refusing Raphael Konigberg a license to
practice law after he refused to answer questions aimed at identifying possible affiliations with Communist
parties.

Speiser v. Randall (1958)

1. Speiser v. Randall (1958)
2. Section: The Dismantling of McCarthyism
3. This case exemplifies Justice Brennan’s conceptual contributions to First Amendment jurisprudence.
 25

4. Decision vote: ?
5. Majority Opnion: Justice Brennan
a. Justification: California loyalty that was made a precondition for tax exemption unfairly placed
burden of proof on person to prove that he or she was not disloyal (chilling effects doctrine)
6. Dissenting Opinion: Justice Clark
a. Justification: California retains power of the sovereign to attach conditions on its endorsements.
7. This case demonstrates how Justice Brennan broke a deadlock between Frankfurter and Black concerning
First Amendment cases; introduced idea of “chilling effect” and “void for vagueness” doctrines

Gunther, Learned Hand, pp.660-661

This reading explains the Jenner-Butler Bill, a piece of legislation introduced to curb the Court’s jurisdiction and
ability to entertain appeals in specific types of cases- admissions to the bar, congressional investigating committees,
the federal loyalty-security program, and state subversive controls. While eventually defeated, the bill represents the
reaction of Congress to recent Court decision that restricted governmental investigative powers.

Konigsberg v. State Bar of California (Konigsberg II) (1961)

1. Konigsberg vs. State Bar of California (Konigsberg II) (1961)
2. Section: The Dismantling of McCarthyism
3. This case contrasts with Konigsberg I and helps demonstrates the Court’s unwillingness to interfere with
repressive government legislation.
4. Decision vote: 5-4
5. Majority Opinion: Justice Harlan
a. Justification: Konigberg refusal to answer had obstructed the Committee’s investigation.
6. Dissenting Opinion: Justice Black
a. Justification: Refusal to answer not justifiable grounds for refusal to license; no “clear and present
danger” involved in this case
7. This case exemplifies how the Court’s five-person majority endorsed politically repressive measures during
the years before Arthur Goldberg replaced Justice Frankfurter in 1962.

Barenblatt v. U.S. (1959)

1. Barenblatt vs. United States (1959)
2. Section: The Dismantling of McCarthyism
3. This case reveals how the Court reverted to Cold War orthodoxy after 1957 in cases challenging the
constitutionality of legislative investigations.
4. Decision Vote: ? (5-4?)
5. Majority Opinion: Justice Harlan
a. Justification: Overruled Watkins opinion and used a balancing test to show that government
interest in national security outweighs Professor Barenblatt’s rights to refuse to answer HUAC
questions regarding his political beliefs
6. Dissenting Opinion: Justice Black
a. Justification: Balancing test should not be applied; also false application of balancing test;
Barenblatt’s rights should be recognized
7. Horwitz suggests that cases similar to Barenblatt result from the Court’s reaction to the Jenner-Butler Bill,
a “drastic anti-Court” measure that represented the congressional reaction to “Red Monday.” The bill
would have brought about the most significant reduction in Court’s appellate jurisdiction since the post-
Civil War years. (Horwitz) The proposal was eventually defeated and the Court escaped.

***

Brett Simchowitz simchow@fas

Wed. Nov. 3—lecture
This lecture wasn’t particularly clear, and we spent the first part of the class talking about the implications of Bush’s
re-election on the Supreme Court.

Horwitz seems to be trying to connect the dots between some of the anti-segregation cases we looked at earlier and
the WC’s changing attitude towards McCarthyism. On “Red Monday” in 1957, Warren had delivered the very
 26

unpopular Watkins v. United States, setting limits on the power of the House Unamerican Activities Committee
(HUAC). By 1959, the Court was swinging in the opposite direction. Harlan’s decision in Barenblatt v. United
States upheld the conviction of a professor for refusing to answer questions before HUAC, balancing governmental
interest against Barenblatt’s 1st amendment rights. By 1962, however, the Court once again showed its liberal face,
largely as a result of the replacement of Felix Frankfurter with Justice Goldberg. In particular, two decisions were
actually reversed when Goldberg became part of the liberal majority:
1) NAACP v. Button (1963)- Frankfurter had argued NAACP should not be allowed to solicit clients. But
reargument after his retirement resulted in a victory for the NAACP.
2) Gibson v. Florida (1963) A Florida legislative committee demanded the membership lists of the Miami NAACP
to determine whether it had been infiltrated by Communists. The Court was prepared to uphold Florida’s
demand, but Goldberg’s vote reversed the decision on free association grounds. Only then did the court come to
view the rights of accused Communists as being associated with the rights of blacks in the South (the analogous
NAACP v. Alabama case in 1958.

In both cases, Justice Brennan’s judicial philosophy was influential, shifting the burden of proof for conviction from
the individual to the state. Brennan didn’t feel comfortable adopting Justice Black’s absolutist position with regard
to the Bill of Rights, but he did believe that the law should give individuals the benefit of the doubt over the state.
He developed the following ideas which were applied in Gibson and NAACP v. Button:
1) Chilling effects
2) Void for Vagueness
3) Overbreadth
4) “Facial” Challenge

The ideas focused on the wider societal consequences of suppressing speech. Brennan suggested that if the line
between what was lawful and unlawful was not clearly defined, people might be afraid to exercise their rights for
fear of crossing that line. Therefore, a vague law protecting constitutional privileges and prohibiting unconstitutional
ones undermines privileged rights. Brennan’s philosophy resulted in a “Copernican revolution” for jurisprudence.
The focus shifted from a particular defendant to all anonymous potential future defendants, and laws could now be
challenged on the behalf of others. It was no longer necessary to wait and see how laws were applied; they could be
declared unconstitutional “on their face.”

Fri. Nov. 5—lecture

This lecture adds to the previous one, as Horwitz tries to show how Brennan’s “chilling effects” ideology was used
by the Court in a series of cases to turn the tied against its anti-Communist period. Brennan was always
uncomfortable explicitly challenging the power of Congress to make particular laws (unlike his counterpart Justice
Black). Instead, Brennan attempted to challenge the means of congressional power. He wrote very technical rulings
that tried to shape the way Congress could operate rather than challenge its power to do so.

Cases using Brennan’s “chilling effects” doctrine:

1) U.S. vs. Robel (1967) – A U.S. law barred Communist party members from working at a defense plant. Robel
worked at one knowingly and was arrested. Warren held that the Act’s provision barring Communists “without
regard to the quality and degree of membership” was unconstitutionally overbroad.
2) Speiser v. Randall (1958) – Brennan struck down a California loyalty oath that was a precondition for state
privileges (such as tax exemptions), arguing that it put the burden of proof on the individual rather than the state
to prove loyalty/disloyalty. He wrote: “The man who knows that he must bring forth proof and persuade another
of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than inf the State must
bear these burdens.”

Brennan publicly denounced what he called Communist “witch-hunts,” recognizing that they were affecting non-
Communists by forcing them to underutilize their 1st amendment rights.

Symbolic speech and 1st amendment rights

Justice Black is an absolutist when it comes to 1st amendment rights. You all recognize Horwitz’s refrain: “Congress
shall make no law…means Congress shall make no law.” In Black’s 1959 dissent to Barenblatt v. United States (see
summary of lecture from 11/3) he challenged the balancing test. Black argues that the constitution protects speech,
not action.
 27

Brennan, on the other hand, believes (and Horwitz agrees) that an absolutist position is actually harmful. For
example, we may all agree that it’s dangerous to allow someone to yell fire in a crowded theater, and government
should have the power to make that a crime.

Two cases involving “symbolic speech” strained the speech-action distinction:

1) United States v. O’Brien (1968) Warren relied on distinction to uphold conviction of Vietnam protesters of
burning their draft cards. When speech and action are combined, he ruled, the government can regulate
nonspeech elements to a limited extent. Horwitz called this a “lousy decision,” suggesting that Warren’s
patriotism got the better of him.
2) Tinker v. Des Moines (1969) Court moved to protect symbolic speech, overturning school district’s decision to
suspend students who wore armbands protesting Vietnam. Black dissented, saying students were engaged in
action, not speech. Black’s absolutist position proves increasingly unable to handle symbolic speech.

Only in 1969 did Holmes-Brandeis free speech doctrine (the “clear and present danger doctrine) win out. In
Brandenburg v. Ohio Court overturned conviction of a leader in the KKK, who had been prosecuted under a
criminal syndicalism statute. The case overturned decisions in Whitney v. California (1927) and Gitlow. Horwitz
notes that this was the “last hurrah” of the Warren Court.

Uphaus v. Wyman (1959) – McCarthyism

Majority opinion: Justice Clark (5-4 vote)
Dissenting: Justice Brennan, Warren, Black, Douglas

This case is important because it represents a temporary turn away from the activist/liberal Court and the
endorsement of repressive measures against Communists. In this case, New Hampshire’s attorney general demands
that the defendant produce the guest list of his summer camp to determine whether guests at the camp were
subversive persons. The defendant refuses and is charged. The defendant claims that his Due Process rights under
the 14th amendment and his right to association under the 1st are being violated. The Court affirms the man’s
conviction.

Majority opinion: Clark writes that the question before the Court is whether it’s valid for a state to demand these
lists. He decides that the right of the State to investigate subversive activity needs to be protected. Unlike the Sweezy
v. New Hampshire case, where the Court protected the right of a professor to refuse to answer questions before a
state committee, Clark says that in this case the group is not deserving of the same protection. Clark employs a
balancing test between public interests and conflicting private ones. The legislature has a clear interest in
determining the presence of subversives, and the nexus between subversive activities and the group (World
Fellowship) is sufficient for the State to therefore require the lists. He writes that “This governmental interest
outweighs individual rights in an associational privacy.” So whereas the Court protected the NAACP from
producing membership lists in NAACP v. Alabama, evidence suggests that this camp has ties to the Communists.
And as a publicly operating camp, it has the duty to maintain a register open to police.

Dissenting opinion: Brennan writes the dissenting opinion, arguing that no legislative purpose can subordinate the
defendants rights. “Exposure purely for the sake of exposure is not such a valid subordinating purpose.” He admits
that the State has a right to legislative inquiry, but also of protecting the rights of its citizens. The exercise of the
state’s power to investigate should be broad, but that power has limitations. Exposing people by requiring the guest
list should be recognized as “invading protected freedoms” – in the era odf mass communications, exposure may
have the consequence of inhibiting seriously “the expression of views which the Constitution intended to make
free.” (Chilling effects ideas). Brennan is concerned about exposing Communists as a means of government
sanction. On the facts of the case, he argues that New Hampshire’s investigation was unwarranted and outside the
power of the state.

Scales v. United States (1961) - McCarthyism

Majority opinion: Justice Harlan (5-4 vote)
Dissenting: Justice Brennan, Warren, Black, Douglas

In Scales, the Court upheld the membership clause of the Smith Act, which made it illegal to be a member of any
organization which advocates the overthrow of the U.S. by force, and made more explicit the requirements in Yates
 28

for evidence of subversive activity. The petitioner was charged of being a member of the Communist party, and the
Court found that the lower courts had been correct to distinguish between “active” membership and “nominal”
membership. The Court therefore rejected the claim that the statute violated the 5th am. protection against self-
incrimination or the 1st am. right to association.

Majority opinion: Harlan points out that in Dennis the Court distinguished between speech and advocacy, deciding
that the former is protected but the latter not. Active membership in a group devoted to advocacy, then, should not
be protected. For those like Brennan who argue that the existence of the membership clause may result in chilling
effects, Harlan suggests that statutes provide that a defendant must be proven to have knowledge of the illegal
advocacy in order to be convicted. In other words, the defendant must have knowledge of the organization’s goal to
overthrow the government by force. Harlan then went on to elaborate on Yates’ definition of what evidence is
sufficient for a jury to find that a) there was “advocacy of action” and b) the Party was responsible for the advocacy.
Insufficient evidence includes: teaching of Marxism, dissemination of Party literature, secrecy of Party meetings.
This kind of evidence led to the acquittal of defendants in Yates.
Sufficient evidence: Participants are proven to have gone beyond teaching of the inevitability of eventual revolution
to explain legal and illegal techniques for bring about the revolution.
In the Scales case, Harlan believed that sufficient evidence existed to uphold the conviction.

Dissenting opinion: Justice Black objected to the balancing test being employed between state interests and
individual rights. Douglas protested that being a member of an organization is not a criminal offense – what is being
punished in this decision is a belief.

Noto v. United States (1961) – McCarthyism

Majority opinion: Justice Harlan
Dissenting:

Horwitz doesn’t give us the full case for Noto, just a brief paragraph on page 507.

In Noto, the Court used the Yates evidentiary criteria to reverse a conviction under the membership clause, arguing
that the evidence was insufficient. Harlan wrote that whereas in Scales, sufficient evidence existed to show that the
defendant was an active member of the Communist Party, this was not the case in Noto.

Gibson v. Florida (1963) – McCarthyism

Majority opinion: Goldberg (Black concurs, Douglas concurs) (5-4)
Dissenting: Justice Harlan (Clark, Stewart, White)

The chair of the Miami branch of the NAACP was ordered by Florida to turn over membership lists to determine
whether the organization had been infiltrated by Communists. Gibson refused on the grounds that doing so would
violate his 14th amendment associational rights. The Court overturned the conviction on the grounds that there was
no evidence linking the NAACP to the Communist party. Finally, the Warren Court’s liberal majority, under
Goldberg, seems to be moving towards protecting Communists!

Majority opinion: The Court ruled that association was protected by the 1st and 14th amendments, that the power of a
state to investigate “is not without limit.” Unless the state can show “nexus” between the NAACP and Communist
activities” there are no grounds for forcing the organization to turn over the lists. The majority then responds to the
claim that, given the Uphaus decision, the Court should force the NAACP to turn over its membership lists.
Goldberg argues that whereas in that case the conviction was upheld because the respondent refused to answer
questions about his own past and membership in the Communist party (Under the Smith membership act, it was
illegal to be an active member of the CP), here the witnesses are not alleged Communists, but rather NAACP
members. It is the NAACP that is under investigation. Unlike Barenblatt, the Committee was not seeking
information on the petitioner (the NAACP) but wanted the petitioner rather to disclose other members of the
NAACP, itself a legitimate organization. The prior holdings that governmental interest in controlling subversion
outweigh the right of individual Communists do not mean that other groups, which are legitimate, automatically
“forfeit their rights to privacy of association.” Were this the case, the “chilling effects” would impinge on the rights
of legitimate organizations. Based on the evidence, there is no suggestion that the NAACP is associated with
Communists activities.
 29

Justice Black concurs, but argues that he would have arrived at the decision based on his absolutist perspective on 1st
amendment rights.

Dissenting: Harlan leads the dissent to argue that the Court is making an artificial distinction between Communist
infiltration of organizations and by organizations. He criticizes the majority for tautological reasoning – requiring
evidence of NAACP ties to Communists in order to allow the investigation of those ties by demanding NAACP
membership lists. He points out that the NAACP itself at the organizational level is concerned about the infiltration
of its branches by Communists, and this should be sufficient evidence to allow the States to investigate whether such
infiltration actually exists. The request to turn over membership lists doesn’t impinge on the rights to association,
says Harlan, given that the petitioner is willing to answer questions about his own experiences (but not provide the
lists).
Justice White dissents, arguing that the Court’s decision would ultimately protect Communists and make it very
difficult for the State to investigate potential infiltration. How could the courts requires a Communist now to divulge
his membership in the Party?

***

Brett Laffel blaffel@fas

“Florida Reviews an Era of Fear,” New York Times, July 4, 1993
Documents Detail Legislators’ Hunt for Homosexuals and Communists in 1960’s
-Fla legislative panel waged an assault on suspected communists, civil-rights leaders and homosexuals for nine
years, up to 1965
-records of the “Johns Committee” reveal aggressive investigations into the sex lives of hundreds of Floridians,
including use of intimidating tactics to elicit confessions
-focus on college campuses and the civil-rights movement resulted in resignations of profs, public school teachers,
administrators, and students dropping out of college
-records revive memories of the anti-communism fervor of the McCarthy era and the battles over integration in the
South
-some were denounced as “known homosexuals” some were targets b/c of their associations with NAACP, which
the committee suspected of having ties to the Communist Party
-committee considered no detail to intimate to pursue
-a surviving committee member said the committee had been created in response to public demands that something
be done about homosexuals
-investigators overstepped their bounds, interrogations often took place behind closed doors, using everything short
of torture to get confessions

“Giving Credit Where Credit is Long Overdue,” New York Times, April 20, 1997
From Patricia Bosworth's memoir "Anything Your Little Heart Desires," about her father and the blacklist
-the Screen Writers Guild West, representing more than 7,000 writers, took action to restore 10 writers' screen
credits on 24 films like "The Robe," "Hellcats of the Navy," "Inherit the Wind" and "Born Free."
-injustice (Hollywood blacklist) has been going on for 50 years.
-home phone was bugged by the F.B.I., father had been one of six lawyers who had just defended the "Hollywood
10" in front of the House Un-American Activities Committee (HUAC)
-writers, directors and producers had been subpoenaed to testify about their political beliefs, stood on their First
Amendment rights and refused to reveal whether they were Communists.
-Hollywood 10 were indicted for contempt, studio heads instigated their blacklist
-the Hollywood 10 would have to be sacrificed to appease HUAC, it was the start of the Red Scare and America's
paranoia about Russia and Communism
-the Hollywood 10 –including Ring Lardner Jr. and Dalton Trumbo- went to prison for refusing to cooperate with
the committee. When they came out, they were blacklisted and would remain so until they testified under oath
whether they were Communist Party members.
-HUAC continued its investigations into the film community well into 1956, hundreds of witnesses were called to
testify and to inform on colleagues to prove their loyalty and their patriotism
-Elia Kazan was rejected for two lifetime achievement awards from the American Film Institute and the L. A. Film
Critics Assoc—b/c of what he did during the blacklist.
 30

-Kazan's defenders insisting that he be judged solely on his artistry, not politics, and his detractors maintaining that
he should still be punished for informing and for selling out.
-back in the 50's, there wasn't any talk of selling out when blacklisted writers
-meaning of loyalty and questions about censorship and how one could survive in the writers' black market, all the
best writers had been blacklisted, and everyone was writing under pseudonyms and being paid in cash hard to open a
bank account, everyone was being hounded by the F.B.I.
-father was being hounded too b/c he had defended the Hollywood 10, he was labeled subversive, followed
relentlessly by the F.B.I., and even put on the F.B.I. security index, which meant that in the event of an "emergency"
he would be put in a concentration camp, he lost most of his clients.
-close to bankruptcy and in despair, my father informed on two colleagues already known to be Communists, in
1959, he committed suicide.
-By that time the blacklist had ended.
-in the spring of 1997, the Guild has restored screenwriting credits to more writers who have been long blacklisted.
Though years after the fact, maybe it can make a difference, if only to remind people that in Trumbo's words "the
blacklist was a time of such evil, no one survived untouched."
-But why did it take so long to have those writers recognized? embarrassment and hypocrisy, cold war lasted until
1991.
-between the 1950's and then HUAC was still active in various forms. Many movie executives were afraid to stand
up for anything -- least of all blacklisted writers. nobody wanted to seem soft on Communism.

Powe, The Warren Court, pp. 127-56

Main points/How do these points fit in with the court cases of the section/How do the themes of the readings fit into
the course as a whole

-discusses the ability of Congress to control the jurisdiction of the Court

-Judge Learned Hand, @ Harvard Law school gave Holmes Lectures which were a stinging rebuke of the Warren
Court, which he characterized as a “third legislative chamber,” and as “second-guessing of legislatures”
-Court needed its “nose well tweaked” b/c the country “needs protection against the aggressive tendency of
the Court”
-ACLU, NAACP, Amers. For Democratic Action all against Congress attempts to control the Court’s jurisdiction,
even Amer. Bar Assoc. opposed Jenner Bill, “would limit the appellate jurisdiction of the S.C.”
-argued that this would be detrimental to the U.S.
-while the enactment of EVERY anti-Court bill was prevented, there was no masking of congressional hostility

Domestic Security after Red Monday

Speiser v. Randall invalidated a Cali procedure whereby a tax exemption was conditioned in part on a loyalty oath
-Brennan: “procedure can only result in a deterrence of speech which the Constitution makes free,” drew
the line between protected and unprotected speech (rather than speech and action)
-1958: Warren and Frankfurter had different views on judicial function:
-Frankfurter: to sustain the law was to “respect the actions” of the elected branches, the power to invalidate
congressional laws must be exercised with the utmost restraint
-Warren: judicial duty runs to fidelity to the Constitution, “judiciary has the duty of implementing the
constitutional safeguards that protect individual rights”
-Kent v. Dulles Douglas for majority: right to travel abroad as indispensable to liberty, Clark for dissenters: freedom
to travel is limited during times of war
-Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions: concluded that the Court
was responsible for a rapid extension of federal powers as the expense of the states, condemnation of Court was
strong, “overrulings of prior decisions in constitutional cases cause us grave concern.. whether individual views..do
not unconsciously override a more dispassionate consideration of what is or is not constitutionally warranted..it is to
our hope that the Court exercise to the full its power of judicial self-restraint”

Legislative Investigations
-Harlan’s balancing test (for example in Barenblatt)—government interest was the “right of self-preservation” and
thus the “ultimate value”
 31

-Black’s First Amendment absolutism and attack on balancing—the Court balances “the right of the Govt to
preserve itself against Barenblatt’s right to refrain from revealing Communist affiliations,” balancing not a serious
undertaking, if it were, Barenblatt’s rights would also be mentioned
-two Smith Act convictions: Scales v. U.S. and Noto v. U.S.
-Douglas: disclosure may cause a serious loss of First Amendment rights for unpopular grps.
Important points:
-1957 decisions had been made on unconstitutional grounds, when the issues reappeared in 1961, five-person
majority handed down decisions that reached the opposite results from the earlier cases, Court had once again
validated the domestic-security program as consistent with the Constitution
-Stewart: “there are some among us always ready to affix a Communist label upon those whose ideas they violently
oppose”
-balancing never gave the individual any chance as self-preservation was relied upon as the ultimate value, led the
balancers to support application of the anticommunist tactics to the civil rights movement, NAACP
-race was a motivating factor in the anti-Court politics, the South tried to tie the two ex/Gibson v. Fla Legislative
Investigating Committee –whether NAACP should have to provide Fla with the names of some of its members to
that Fla could determine if the NAACP had been infiltrated by communists

***

Week 8
Heejin Lee lee67@fas
Mon. November 8—lecture
• Questions to keep in mind regarding 1st Amendment cases concerning loyalty oaths:
o Diversity/pluralism  cause for celebration, or threat to unity?
o Loyalty  definition: what does it mean to be loyal/disloyal?
o To what extent can we say something special on the Warren Court (WC) regarding
diversity/pluralism?
 WC 1st Amendment cases: marketplace of different ideas tolerated
• Citizenship
o Historical Background
 1958-1967: WC struck down provisions taking away citizenship
• 1907: Denaturalization statute forbade dual citizenship for women marrying
foreign nationals
• 1944 Denaturalization given as punishment for violation of Smith Act
o Court Cases & Trends in WC
 Trop v. Dulles: Supreme Court (SC) held loss of citizenship for desertion during wartime
to be a cruel and unusual punishment under 8th Amendment
 Paris v. Brownell: Case in which Chief Justice (CJ) Warren noted that only citizen self
can give up right; Congress cannot take rights away (think case ok’ed Congress stripping
citizenship from a US national who voted in Mexican election)
 After Goldberg comes to SC, rules that dodging draft cannot be punished by
denaturalization.
 Aforyim v. Rusk: Reversal of Paris decision – right guaranteed by 14th Amendment
• Again, citizenship a basic right which can be given up only by citizen
o Analysis
 Cases above are of the following two types:
• Cases in which SC acknowledges dual loyalty
o Shift from the melting pot to possibility of dual loyalties
o Recognizing possibility that loyalty not monolithic, multiple loyalties
not conflicting with each other
o Cases involving dual loyalties/ID politics after Brown v. Board,
throughout 50s, 60s and 70s
o How possible to be inclusive and cohesive at the same time, especially
when America requires consensual idea of citizenship?
o Intellectual History of Citizenship
 32

 The Republican Idea: Can only have free government if have

homogenous citizenry – people very close to community,
willingness/need to subordinate individual for communal
goods
• Duty-based concept of citizenship
 The Liberal Idea: focus on individualistic aspects of
citizenship
• Rights-based concept of citizenship
 American Revolution founded on the republican idea of
citizenship, in part b/c at that time, theoretically impossible to
have diverse citizenry
 20th Century brings about the liberal idea of citizenship
• Justice Jackson’s opinion in 1934 of W.V. v. Barnette
– first SC acknowledgement of diversity
o Echoes Madison’s Federalist #10 about
tolerating diversity
 Motivation: definition of American freedom against
Nazism/fascism
 WC express the belief that loyalty is a spectrum, not “on/off”
• First time that Justice Jackson’s idea in W.V. v.
Barnette becomes operational reality for majority in
WC
o However, tension arises because:
 Infinite/unlimited diversity problematic to having cohesive
nation
 Also, basis for unity could be based on intolerance of diversity
or racial/xenophobic tendencies
o Also keep in mind: Difference between ascriptive and consensual
elements of citizenship
 Ascriptive: Citizenship based on heritage-blood-lineage of
parents
 Consensual: In this case – what else binds disparate people to
make up nation?
• Cases which strike down employment restrictions for green card holders (aliens)
o 1971: SC extends strict scrutiny to aliens
 Aliens as class, prime example of “discrete and insular
minority” (Carolene Products Footnote)
 SC struck down restrictions on aliens becoming members of
state bars; however exceptions – police (from time to time)
and political representatives
o Graham v. Richardson: Blackmon strikes down welfare requirement
 Another side of this argument: aliens if want to receive public
benefit, must become part of community
 SC ruled against this position; as a result, citizenship
becoming less “special”
o Keep in mind: fault lines defining community v. outsiders depends upon how government defines
policies
• Cruel and Unusual Punishment Cases
o Basic idea of clause in 8th Amend: set of punishments considered cruel and unusual are variations
of torture, but NOT capital punishment
o Historical Recap:
 1958 Trop v. Dulles: loss of citizenship considered cruel and unusual punishment.
 1958 Warren makes expatriation cruel and unusual punishment based on logic that
framers would have most likely considered “man w/o country” badly
 1963 Robinson v. California: SC holds that punishment of drug addicts for addictions
cruel and unusual punishment
 33

• Addiction is a status; likened to punishment for physical attributes

• For first time held that disproportionality an essential aspect of cruel and
unusual punishment
• Designed to attack capital punishment for rape, which was frequent in South
(usually cases involving black men and white women)
 Furman v. Georgia: SC ruled that capital punishment cruel and unusual punishment (NB:
case after WC, but groundwork laid during WC)
o 8th Amendment brought to life by WC (Professor Horowitz notes that for better)  instance of
justifiable judicial activism

Wed. Nov. 10—lecture

• Main topic: Right to Privacy
o US emphasize privacy more so than Western Europe – possible that difference results from
individualist versus communalist forms of government?
o Privacy issue brought to the Supreme Court (SC) via Griswold v. Connecticut
• Relevant Cases
o Olmstead v. United States (1928) – limited the right to privacy
 Whether wiretapping of telephones fell under “search and seizure” provision of the 4th
Constitution
• N.B.: Decision later rendered unconstitutional by Warren Court (WC)
 Case dealt with the question of how the 4th Amendment was to be interpreted
 Debate between Chief Justice (CJ) Taft and Justice Brandeis
• Taft (p. 575): literalist interpretation of the question at hand; “no searching, no
seizure” (cf Justice Black’s rulings)
o In other words: Taft argues that 4th Amendment does not apply to
telephones because not contemplated by the framers
• Brandeis (p. 578, column 1): “living constitution” idea
o Kyllo v. United States (2001)
 Marijuana growth in home in California
 Justice Scalia opinion surprising as it acknowledged impact of technology on the 4th
Amendment by an originalist (though consented begrudgingly)
 Compare Scalia opinion to the move made by Bickel to investigate the original intention
of the 14th Amendment for Brown
o Question/Comment for both cases:
 Why is the living constitution idea more important/more reasonable for some factors (i.e.
technology) but not for others?
 Originalists: in order to avoid absurdity, must understand 1791 in terms of principle
(general/abstraction)
• Griswold v. Connecticut (1965)
o Controversy around doctor giving birth control information to married woman
o Social history of birth control (Background info)
 Griswold not controversial from policy perspective
 Public opinion on birth control: In 1945, ~62% approved; in 1959, ~73% approved (this
served as measure of inclusion of Roman Catholics into mainstream society before
election of JFK)
 No political constituency for anti-birth control
 Before WWII: Majority of the US against liberalizing birth control
• Comstock Act (1920s): really suppressed organization of birth control info
• 1930s: Battle of Margaret Sanger (sp?) supported by Eleanor Roosevelt
o Court cases in 1933, 1936 having impact on interpretation of Comstock
Act
• At the end of the 30s, anti-birth control dead on federal level
• General view at this time was that preventing distribution of birth control
anachronistic; used for symbolic politics but not taken seriously for moral guide
in US
o Earlier rights to privacy
 34

 1890 Louis Brandeis w/ Samuel Warren, established “right to privacy”  first legal
article describing legally protected right to privacy BUT only based on common law;
principle proclaimed but subjects under consideration rather trivial
 Right to privacy = right to let alone
 Make sure to read “100 Yrs of Privacy” – why begin in 1890, and how does it grow?
History as reframed in terms of the history of technical innovations
 Murphy and Rutledge moving towards using 4th Amendment for establishing
Constitutional right to privacy
o Details of Case
 Douglas Opinion in Griswold  Refer to NAACP v. AL: freedom of association by
Harlan
• Most often referred to as having created right to privacy by rooting it in the Bill
of Rights; finding common principles in the ten different provisions
• Not arbitrary as attackers have made it out to be; application of Brandeis
methodology

Baggett v. Bullitt (1964)

1. Baggett v. Bullitt
2. “The Dismantling of McCarthyism” (1st Amendment Freedom of Speech Cases)
a. Case from end of McCarthy era; further demonstration of trend established in Court decisions after
Goldberg replaced Frankfurter.
3. Decided June 1, 1964.
4. 7-2 (Based on fact that only Opinion of the Court and one dissent; for more details, see below).
5. Opinion of the Court written by Justice White and assumed that all other justices except Clark and Harlan joined.
a. Reasoning: Provisions of both the 1931 and 1955 Washington statues requiring loyalty oaths to be taken
by teachers (1931) and state employees (1955) “unconstitutionally vague”; Opinion likens current case to Cramp v.
Board of Public Instruction where “guiltless knowing behavior” ill-defined. Invokes that ruling designed to
prevent “the chilling effect” as noted in Speiser v. Randall.
6. No concurrent opinions.
7. One dissent, by Justice Clark joined by Justice Harlan.
a. Reasoning: Clark dissent in two parts: first points to fact that the Opinion in this case contradicts logic
used to decide Gerende v. Board of Supervisors of Elections; because Court ruled that Ober Law in Maryland
constitutional, Washington state had based its 1955 statute, which was now ruled to be “unconstitutionally vague.”
Clark also questions Opinion as he perceives it to be challenging the constitutionality of the Smith Act as defended
in Dennis v. United States. Second, unhappy about Supreme Court passing judgement on the 1931 statute when
Washington Supreme Court has not had chance to consider it before case brought to US Supreme Court.
8. “Unconstitutionally vague.”
9. No new tests established with case; as mentioned in 5 above, Brennan’s “chilling effect” served as guide in
decision.
10. Gerende v. Board of Supervisors of Elections; as Clark points out in 7 above, also undermines force of decision
in Dennis v. United States.

**Levinson, Constitutional Faith, pp. 90-121

1. Main point of reading: Levinson proposes an analysis of the US Constitution and loyalty oaths based on drawing
analogy with religion, specifically Protestant Christianity and its emphasis on voluntary testament. Americans are a
“faith-based community” in the sense that regardless of outstanding differences (race, social class, etc.), all
Americans hold same set of fundamental political ideals as embodied in the US Constitution (the “American Creed”
or “Americanism”). This community is marked by two paradoxical characteristics; while it appears open to those
outside the community to join if they voluntarily agree to adhere to community ideals, those on the inside must also
agree to take them if they are to join the community. Oaths are mechanisms which those on the inside use for this
purpose. Furthermore, Levinson makes the point that in general, accepting a loyalty oath contradicts the notion of
pluralism in that those to take the oath are required to commit only to one single community. Applied to immigrants
who wish to become American citizens, Levinson notes that they must cut all ties to their countries of origin, short
of the purely personal and the emotional.
2. Gives one historical/social perspective which can be used to better understand Supreme Court Justices’ attitudes
towards loyalty oaths as indicated in the Opinion and dissent of Baggett v. Bullitt (see above for summary)
 35

3. Broad parallel established between religion (especially fact that founding fathers deeply influenced by
Protestantism) and the US Constitution fit with/contribute to understanding of literal, textual interpretation of
Constitution as advocated by Justice Black; in other words, this parallel could be used to explain and analyze Justice
Black’s decisions over time as Professor Horowitz has done throughout his lectures this semester.

Fletcher, Loyalty, pp.65-68

1. Main point of reading: Fletcher argues that currently there is a misunderstanding of loyalty oaths. There are two
different kinds of oaths: the concept of loyalty oath as required of those working for public authority or acquiring
new citizenship and the loyalty oath posed during times of heightened concern for national security in order to
separate those social elements (people, groups/organizations, etc.) which state deems as threatening. General
assumption has been that loyalty oaths of second type of oath justified by explaining that it is actually same as the
first type of oath; Fletcher strongly rejects this line of argument and states that we should treat these two oaths
differently in order to preserve positive function of oaths, that of acknowledging specific duties taken on by
individuals which are associated with preserving well-being of state.
2. Slightly different understanding of loyalty oaths than provided by Levinson; as with Levinson reading, provides
basis for understanding reasoning behind Supreme Court Justice’s decisions in freedom of speech cases specifically
dealing with loyalty oaths such as Baggett v. Bullitt.
3. Along with Levinson reading, may serve as basis for comparing earlier cases, such as West Virginia State Board
of Education v. Barnette and Korematsu v. United States with 1st Amendment Freedom of Speech cases concerning
accusations of partaking in Communist/Communist-influenced activities

***

Senovio Shish shish@fas

Fri. Nov. 12—lecture
1. Main point(s) of the lecture:
a. Historical context for Griswold: public attitudes toward privacy in marriage were favorable.
b. Griswold was controversial because Justices felt the need to carefully sidestep substantive Due
Process, and “penumbras” and “emanations” seem arbitrary.
c. Public accepted decision, compared to state of denial after Brown.
d. Harlan uses due process, but Goldberg argues that privacy is not simply found in the 9th
Amendment, but through incorporation of the Bill of Rights, since it was not “closed” to other
fundamental rights.
e. Black’s textualist view is evident, and relates to his religious upbringing.
f. Katz v. U.S. is significant for interpretation of 4th Amendment, establishing protection for the
expectation of privacy.
g. Originalism: revealing the intent of framers is complex, and can’t escape political questions since
there were several viewpoints back then.
2. How do these points fit into the broader themes of the course as a whole?
a. Right of privacy is one example of interplay between society and the court: atmosphere lessened
pressure on justices, favored outcome.
3. Is Horwitz presenting two or more different views? What view does Horwitz support? Why? In this lecture
Horwitz mentions that “good practice” of history almost always results in ambiguity. In order to come to a
conclusion, certain arguments must be suppressed, which makes the process arbitrary. It depends on who
can make the most convincing case, and ultimately what you want to believe.

Aptheker v. Secretary of State (1964)

1. Aptheker v. Secretary of State (1964)
2. McCarthyism
a. Importance: Similar to chilling effects: not all Communists have illegal intent, but this law affects
all of them.
3. decided: 4/21/64
4. Decision vote: 6-3
5. Justice writing opinion: Goldberg
 36

a. Reasoning behind opinion: Section 6 of Subversive Activities Control Act denies passports to
Communist leaders infringes on Fifth Amendment liberties (right to travel out of country).
6. Concurring justice: Black and Douglas concur separately
a. Reasoning behind opinion(s): Black: Statute violates Constitutional prohibition of “Bill of
Attainder,” denies trial by jury and other protections of 1st, 4th, 5th, and 6th Amendments. Douglas:
“Freedom of movement” may not be infringed under any circumstances; only crimes should be
punished, not affiliations.
7. Dissenting justices: Clark dissenting, Harlan joins, White joins in part (his dissent is not in sourcebook).
a. Reasoning behind opinion(s): U.S. v. Raines (1960) says court may only consider “legal rights of
litigants in actual controversies,” and can’t presume situations in which statute will be too broad.
Appellants knew they were affiliated with Communists and regulated; statute was not too broad.
Right to travel abroad is not absolute. Congress reasonably regulated liberties because
Communists are secret, untrustworthy, and loyal to Moscow.
8. Key themes and key phrases that resulted: none
9. Key tests that were established: none
10. Previous Supreme Court decision that were overturned: none

United States v. Robel (1967)

1. U.S. v. Robel (1967)
2. McCarthyism
a. Importance: major means for dismantling McCarthy-era legislation.
b. Shift of consideration to effects on people outside courtroom.
3. decided: 12/11/67
4. Decision vote:
5. Justice writing opinion: Warren
c. Reasoning behind opinion: Section 5 of Subversive Activities Control Act is unconstitutionally
broad: similar as was found in Aptheker, the statute does not consider the degree of involvement in
Communist party. Guilt is ‘proven’ by association w/Communists. It infringes 1st Amendment
right to association. The state of war does not permit this right to be abridged. (in footnote,
Warren rejects a balancing test.
6. Concurring justice: Brennan concurring
d. Reasoning behind opinion(s): “Defense facility” is not much of an abridgement of right to
association. Standards for reaching decision on criminality are too vague, which can lead to
inappropriate application and inadequate notification of affected people. Robel was not a security
risk, and the degree of his involvement with Communists wasn’t considered; the law must provide
standards for protecting people like him.
7. Dissenting justice: White, Harlan dissent
e. Reasoning behind opinion(s): Right of association is a “judicial construct.” Public interest to
prevent sabotage/espionage outweighs Robel’s interest to associate with the Communist Party,
since he knows it is a “Communist-action organization.” Difficult to differentiate between
dangerous/non-threatening members; therefore all are potentially threatening.
8. Key themes and key phrases that resulted: distinguish active/inactive Communist membership.
9. Key tests that were established: none
10. Previous Supreme Court decision that were overturned: none

United States v. O’Brien (1968)

1. U.S. v. O’Brien (1968)
2. McCarthyism
f. Importance: O’Brien burns his Selective Service card in a demonstration against the Vietnam war
and policy.
3. decided: 5/27/68
4. Decision vote: 7-1, Marshall didn’t participate (not mentioned)
5. Justice writing opinion: Warren
g. Reasoning behind opinion: Symbolic speech was justly regulated because the government had a
“sufficiently important governmental interest in regulating the nonspeech element.” The
 37

limitation on freedoms was “no greater than is essential” to achieve the government interest. A
“purpose to suppress freedom of speech” does not automatically make something constitutional.
6. Concurring justice: none mentioned
7. Dissenting justice: Douglas; opinion not in sourcebook.
8. Key themes and key phrases that resulted: in Horwitz’s opinion, this was a “lousy” opinion and part of a
series of 1968 “uncharacteristic” rulings (see Tinker v. Des Moines).
9. Key tests that were established: none
10. Previous Supreme Court decision that were overturned: none

***

Rene Shen rshen@fas

Tinker v. Des Moines (1969)
1. Tinker v. Des Moines (1969)
2. The Dismantling of McCarthyism
a. This case highlights a willingness to protect students and protestors.
3. 1969
4. 7-2
5. Fortas wrote for the majority. He basically said that since wearing the armbands was so far separated from
the disruption, that this was basically “pure speech” which is protected by the First Amendment. He holds
that the public schools are an okay place to exercise symbolic speech as long it does not unreasonably
disrupt.
6. White and Stewart wrote short separate concurring opinions.
7. Black and Harlan dissented. Black wrote that he thinks there are limits as to where you can practice free
speech. He says that the armbands managed to divert the students attention from learning. Black also
worries about students being able to express themselves and divert attention from learning. He believes it
is too permissive. School discipline is a natural part of training people to be better citizens. He worries
about the snowball effect – that one day people will be free to disobey teachers. He notes how many
students are already participating in break-in, sit-ins and the like. He believes that this ruling takes the
running of the school away from the administration and into the hands of the students.
8. Black in his dissent, “It is a myth to say that any person has a constitutional right to say what he pleases,
where he pleases, and when he pleases.”

Fletcher, Loyalty, pp. 110-124

Gobitis found that Jehovah’s Witness children refusing to salute the flag because they said that it was prohibited by
their religion was not protected. Though supposedly overruled in Barnette, Gorbitis still occasionally flairs up. In
1990 the Supreme Court found that Indians who smoked drugs for exclusively religious purposes were not
protected. They found the law to be religiously neutral.
Beginning with Chief Justice Stone’s lone dissent with concern for “small and helpless minorities,” the Court
gradually abandoned the principle of neutrality in Gobitis and moved in Barnette toward a position of greater respect
for differences among diverse American communities. It is unclear if Barnette is about religious freedom or
freedom of speech. For Black and Douglas the shift from Gobitis to Barnette represents their emergence as
“activist” judges willing to impose their view of the constitution on the states. It took them a while to realize that
they would restrain themselves on matters of economic policy, but would intervene on political and civil rights
issues.
In the Jeanette, PA case the Court decided that the Witnesses had a right to preach the Gospel through the
distribution of literature through personal visitations and that requiring licenses for such a right is not allowed. In
the Struther, OH case they extended this right from a religious one to a general one of free speech.
Religion is exercised in a community of believers; speech, by individuals of diverse opinion. The conflicting
interpretation of the Witnessees’ constitutional challenge reduce, therefore, to a choice between thinking of them as
acting in a community with a distinct set of internal and religious loyalties and thinking of them as individuals
seeking to express their personal opinions.
Jackson in his Barnette opinion focuses on free speech, ignoring both the religion and age of the people. He has a
few assumptions, the first of which is that children in school have full rights under the free speech clause of the 1st.
This interpretation would basically eliminate the notion of “school” as we know it. The second is that being silent
during the pledge is also speech and warrants protection under the 1st. There are two interpretations of this, one
 38

being that being silent says something, and the second is that you should not be forced to say something that you do
not believe in. The second interpretation is the one that Jackson was thinking about in the opinion. Though his
opinion was about free speech, it seems that at most only 4 Justices thought it was on speech not religion.
The Court in Tinker reinterprets Barnette to be a precedent protecting symbolic speech – not about religion and not
about whether individuals may be forced to recite words they do not believe in.

I would really focus on how this article and the shift for Black and Douglas towards activist judges. This shift from
neutrality to respecting differences and how the Court reinterpreted Barnette in Tinker. This article highlights the
division between speech and religion in Barnette and how it was changed in Tinker to allow for freedom of symbolic
speech and this shows the Warren Court’s respect for strong constitutional protection of the Bill of Rights. This also
talks about how you interpret the Carolene products footnote and how you consider economic laws different from
those involving civil and political rights and how the court will step in readily to protect the latter.

Brandenburg v. Ohio (1969)

• Brandenburg v. Ohio
• The Dismantling of McCarthyism. This case shows a willingness to show tolerance for someone
expressing their views that would have been punished during McCarthy era.
• 1969
• Per curiam – “the constitutional guarantees of free speech and free press do not permit a State to forbid or
prescribe 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 like to incite or produce such action.”
• Black and Douglas argue that there needs to be no clear and present danger test in evaluating speech – that
all speech is protected by the First Amendment. Douglas explains that if speech is absolutely allowed, you
can still regulate things like yelling fire in a crowded room through the plus/action part of it.
• Douglas – I see no place in the regime of the First Amendment for any “clear and present danger” test
• Douglas – Action is often a method of expression and within the protection of the First Amendment
• Douglas – The quality of advocacy turns on the depth of the conviction; and government has no power to
invade that sanctuary of belief and conscience.
• Test established to see if the advocacy would cause imminent lawless action and is likely to cause such
action.

Film: Berkeley in the Sixties

They protested HUAC hearings. When the police turned the hoses on the protestors in the Rotunda. The committee
created a film, “Operation Abolition” about how the protesters were trying to destroy the HUAC and destroy
national security. They were going to show it at a Harvard ROTC class. And so they decided to protest it.
The UC was a knowledge factory. Ran government’s nuclear labs. Largest public university in the nation. They
created SLATE, student elections were used as a platform to reach other students on other political issues. The
administration was trying to undermine SLATE and not happy with introduction of “off-campus” issues. The civil
rights movements became the wellspring of the liberal cause. Students at Berkeley grouped with blacks to protest
the lack of hiring of blacks from local bay area businesses. They were willing to be arrested to protest the lack of
blacks hired at a hotel (Sheraton Palace.) They were arrested and it led to an agreement to hire minorities at all
levels. Led to pressure on the university to put down this student movement.
The University banned the use of tables at places that had historically been places of political organizations.
Brought together all organizations, even though aimed at left organization. So the students moved the tables to other
parts of the campus. Deans cited some students and suspended them. The tables were moved elsewhere and people
were protesting. People surrounded the police car. People began to gather and led to speeches. They spoke on top
of the police car with a microphone. Anyone that wanted to could sign up to speak for 3 minutes. It was a political
awakening. Agreement was signed with the University: the students would desist and there would be a coalition to
examine the rules to negotiate their rules on free speech. The negotiations were being held up and so students
started to picket. The university was trying to break the coalition of all student groups. They said they could have
their tables back but that only allowed students groups that did not advocate lawless activity (aimed at the left
groups.) The eight original students that had been cited then found out that they were about be expelled. This
united students again. They took over Sprawl Hall. They arrested all the students that were in Sprawl Hall. The
President of Berkeley tried to address the students and Mr. Savio tried to speak at the end and they arrested him.
The faculty was on the side of the students (passed the faculty senate 7-1). After they had won, they turned to
stopping the Vietnam War. The first big event was Vietnam Day in 1965. As the war escalated, the soldiers were
 39

being shipped out and many of them came through Berkeley. So they tried to stop the trains. They wanted to march
through Oakland, but the City denied them a permit. The police set up a blockade and so they turned back. The
next day an even larger crowd appeared but another blockade and hells angels were there. A third attempt with even
more people made it into Oakland.
Regan was running for governor found that attacking the Berkeley protestors got him lots of cheers. In San
Francisco counterculture grew from the protestors. They found it to be much bigger than just the war or the civil
rights movement. They found the entire culture different and tried to live their life differently. Tried not to worry
about material concerns, to live communally. Hate Ashberry (counterculture) and the anti-war movement agreed on
lots of things, but they also had fundamental disagreements. Stop the draft week. As the war escalated, the anti-war
protestors were more willing to be disruptive. They tried to stop the people from going to the war, but they couldn’t
stop anyone from being inducted. They got destroyed by the police. They went back twice as strong and had the
riot they wanted. They stopped the induction center. They started to lose sight of the idea of reaching other people.
They started to lose touch with the rest of the nation. Others say though that they did put limits on the war because
they realized that if they tried to get one million people for the land war they could not ensure domestic security (in
part due to the anti-war movement.)
The Black Panthers decided that they wanted to police the police. They sold Red Books (Mao’s) in order to buy
their own weapons. Huey was stopped by a policeman who was killed. Huey was charged with murder and
arrested. Berkeley students and the Black Panthers joined forces to free Huey. The Black Panthers were at the
vanguard of the “revolutionary” movement. Some people though that it might be a revolutionary movement.
People felt that the world was unraveling. Chicago convention saw many protestors trying to change the electoral
process.
People’s Park, turned a parking owned by the University of California and turned it into a park. The University
seizes People’s Park and put a fence around it. Students demanded the park back. Governor Reagan brought in the
national guard to the park. They gassed students at a rally.

***

Ben Saltzman saltzman@fas

Walzer, “What Does it Mean to Be an ‘American’”?
Motive- the title underscores the purpose of the article
Patriotism and Pluralism-
- The United States is not a patrie ( a homeland/motherland), rather it is a
country of immigrants who refer to "home" as another foreign country
- The United States is a collection of citizens who "are Americans only by
virtue of having come together"
o But they can shed their old identities if they choose
o They become "ethnically anonymous"
Citizens-
- "if the manynesss of America is cultural, its oneness is political"
- citizenship has never been connected or tied to nationality
- the adjective "American" named, and still names, a politicas that is
relatively unqualified by religion or nationality or, alternatively that is
qualified by so many religions and nationalities as to be free from any one of
them"
o through this freedom America's "oneness" ensures its "manyness"
- American political symbols and ceremonies are culturally anonymous-> they are
created instead of a inherited; furthermore, they are neither mandatory nor
intensely political
Hyphenated Americans-
- pluralists do not make good republicans and republicans do not make good
pluralists
- according to the theorist Kallen (whom Walzer wrestles with the whole
article), can be good citizens on a liberal but not republican model- this has
two implications-
o 1. cultural groups take part in politics to protect and ensure their
particular interests but not to impose their views on thers
 40

o 2. the main political commitment for Americans is "to protect their

protection"- thus to maintain the democratic framework, because within this
they can do as they please
- the cultural groups allow for a certain fulfillment that politics can't
provide- this is what sustains the groups
Peripheral Distance:
Walzer's most fundamental claims rest in this section:
- American is not an "anonymous nation of named nationalities" and it is also
not a country that is similar to all other ones
o For instance, unlike countries like France, America does not demand that
citizens give up their cultures and become pure republicans
- Instead, America, for the most part, he argues has been premised upon
tolearance and it is in fact this ideal that has replaced republicanism
o In this regard the hyphen is an equal sign
- also, with regards to hyphenated Americans, it doesn't matter which name goes
first or is "dominant"- Americans can choose as they like
- moreover, for all cultures, hyphenation is doubled- we are for example
culturally Jewish- American and politically Jewish-American
o citizenship is the ultimate unifier and culture is the ultimate separator ->
this leads to a tension that is inherently American
- Thus, "the resulting 'groups' are . a core of activists and believers and an
expanding periphery of passive member or followers, lost, as it were, in a
wider America." (so suggests John Hingham and Walzer agrees
o So: at the "core"- the left side of hyphen is stronger and at the periphery,
the right side of the hyphen is stronger
ß Americans choose as they please
- this process is unfinished as new immigrants continue to come to America and
stir up cultural sentiments
- America does not and will not require people to give up their culture
- in fact, America demands this "incoherence"- it needs it

Mon. November 15—lecture

Originalism: The reason why people argue for originalism is to tie judges to the past – to prevent them from
activism. This issue of generality and particularity has haunted the subject for the last 25 years since it was put on
the table by Ed Meese, Reagan’s AG. The extent to which you move more and more toward the general level, you
see that he looses many of the advantages of tying the judge to the past. Textualism, on the other hand, agrues that if
you can tie the judges to the text, particularly with respect to plain meaning, you can prevent activism. It is
theoretically possible to be a textualist and not a originalism, but the basic point is that the motivation for people to
be textualists is not to find ambgiuityies and originalism and textualism usually go together. One would have hard
time finding textualists who aren’t trying to be originalists – few textualists argue that they don’t want accept
historians interpretations of the text – but that is more or less where Justic Black is coming from.

Judicial activism vs. restraint seems to have dropped out as a major issue. If you try to draw a historical test for
judicial activism, what would you do. For a long time people said that the more activist a court is the more often it
overturns precedence. The other question is how many statutes were declared unconstitutional. There is a steady
increase in both of these measures since 1937 across the pre-Warren, Warren, Burger and Renquist Courts. In the
practial world of rhetoric, the rhetorical basis for conservatives arguing for judicial restraint is undermined by the
numbers, the Renquist court was as activist at the courts that preceded it. The central question is not if but where the
supreme court should be active – the carolene products footnote says it would be inapprorate action for the court to
interfere with congress on social and economic issues, but it would be inappropriate not to intervene on the
protection of discrete and insular minorities. The alternative to the American system – the british system of
parliamentary supremacy was the dominant system even as last as the 19th century. After 1945, the experience of
tyranny had an effect on the way constitutions after the second world war were promulgated. The American model
of judicial review is expanded throughout the world. Once you argue that judicial review is acceptable is seems
unfair to claim that the kind you don’t like is activism but the one you like is ok. If you look at constitutional history,
the role of the court as it was frist described was strict constructionism vs. loose constructionsim (Jefferson v.
 41

Marshall). Each of them had a theory of language – plain meanings vs. ambiguities – and if you look at the
philosophy of language circa 1800 there was incredible argument about plaining meaning vs. ambiguities. Rooting
Jefferson and marhsall in this intellectual debate, the strict/loose constructionism idea is dependent on the
philosophy of language. It is hard to argue that due process of law and equal protection of the law is a clear self
executing set of words. How is cruel and unusal punishment an obvious phrase. The idea of strict constructionism is
very dependent on the idea that there is an obvious plain meaning of the text – this requires deep commitments about
the philosophy of language that relies on a more and more anachronistic place in society. Originalists are willing to
tear up a whole body of law that has been accumulated by precedents if they think they are wrong. This is pretty
radical or reactionary (not a conservative) idea. Originalism has a very downside of threatening to overturn all
precedents and that all those people who were relying on precendents have to change everything because I judge
goes back to the original meaning. Strict constructionism in its rhetorical spin is meant to say that the judges should
not just follow the constitution to the letter of the law, but also follow prior courts ruling. Strict constructionism does
not mean orginalism – it means strictly construing language that you presume to be unambiguous. Its not entirely
clear how all of these things play out, but its clear that the rhetoric is wrong.

Wed. Nov. 17—lecture

All topics eminate from Griswold-
Right to privacy:
- Douglass- look at the Bill of Rights and one can find the right to privacy
- Goldberg- in the ninth amendment we have rights that we don't give up that are
not be enumerated- this is the purpose of the 9th amd.
- Positivism v. Natural Law: Douglass is trying to be a positivist, Goldberg is
appealing above and beyond the text of the constitution to a higher conception
of rights
- Black dissent to the sit-in cases marks his departure from the liberal
majority
- Harlan- don't have to do double back flips- can just say that the right to
privacy is part of due process? people didn't want to take this position
because substantive due process was the basis of the Lochner case
o Horwitz: this is too simple
- Harlan didn't care- very removed from the Lochner debates
- He is trying to define a very narrow core of marital rights- homosexuality,
adultery, incest are not permissible in privacy
- Harlan doesn't think his statement has to do with above or abortion- much more
limited understanding
- This view is a snapshot of 1959, wouldn't have occurred to Harlan that
homosexuals would have constitutional protections
- Did not appear that sexual mores were head toward the vast revolutionary
upheaval of the 1960's
- How do you determine what is fundamental under substantive due process?
Balance between that which liberty demands and traditions, the traditions a
living thing
o Don't usually see that this hero of conservative policies is talking about a
living constitution and a due process clause that evolves
- Douglass: two justices that forged our ideas about privacy were Douglass and
Brandeis- Douglass took over Brandeis' ideas b/c they fit into his life story
o To overcome polio, Douglass took long hiking trips and became a loner- it is
not surprising that this type of person would have a conception of privacy that
no else would have had
- cultural perquisites for privacy?
- Biographical Route: 1963- JFK appointed Goldberg who had been the secretary of
labor
o Goldberg stayed on the court for three years- LBJ wanted to appt. Abe Fortas
to the SC- Fortas had been LBJ's lawyer in defending LBJ's Senate victory of 86
votes and had been his advisor ever since
o LBJ knew he could get Goldberg off the court if he could get him to think that
 42

he would LBJ's VP in the next election if he would resign and become ambassador
to the UN
ß Goldberg's vanity blinded him to the fact that LBJ said these things to a lot
of people; he later ran for governor of NY and lost very badly
- Sequence of Appts:
o 63: Goldberg- Fortas replaces him
o Blac moving to conservative side with Goldberg's appt.
o Only in 1967 when Thurgood Marshall is appointed to the court that the solid
WC majority (5 people) is solidified
o two years later Warren and Fortas resigned and the WC ends-> only a two year
majority
o Conservatives: Clark, Stewart, White, Harlan
ß White and Goldberg were apolitical appts.- personalismo appts, not attempts to
affect the direction of the court, maybe the last time that this occurred?
- Generalizations about the liberal justices:
o first court in American legal tradition to champion the outsider and underdog
o studying their biography leads us to see that they too were underdogs-
socially marginalized origins of the liberal justices
o 6 grew up in poor families
o Brennan grew up in the middle class
o Brennan, Goldberg, Fortas were all cultural outsiders and with Marshall they
were all outsiders to mainstream culture
o The 3 white Protestants- Black, Douglass, and Warren all grew up extremely
poor
ß Warren and Douglass felt an inferiority in legal background
- Conservatives: all Protestant, except Franfurter, and they all came from
well-to do families
o Add Burton and Whittaker, expand the picture, all of whom, except Frank., were
not outsiders who were happy with the promise of American life
- Class, Religion, and race all played a role in WC decisions
- Roth v. US-
- decided in '56, Brennan's first term in SC and his first important opinion
- How did it happen that it took until 1956 for the SC to decide if obsenity was
in or out of the 1st Amd?
- What was happening before that?
- Answer: 1st Amd. Didn't apply to the states until much later and thus cases
about obscenity from states didn't come to the SC
- Began to change in 1925 in Gitlow- in that the 34th amd. Applied to the States
through the 14th amd. (incorporation)
- Only after states get involved that the first amd. Becomes active- how late it
all came to the SC

***

Darren Morris dmorris@fas

Powe, The Warren Court, pp. 310(Domestic Security)-317, 322-35
This reading discusses the changing tide of domestic-security decisions after 1962 and the cases surrounding the
Vietnam War. These decisions were important, either implicitly or explicitly, for the protection of freedom of
expression regarding controversial definitions of first amendment rights, such as symbolic speech.

Domestic Security
After 1962, the Warren Court began to dismantle McCarthyism:
- Baggett v. Bullitt: Court struck down statute requiring loyalty oaths at U of Washington.
- United States v. Robel: the Court held it was unconstitutional to fire a Communist Party member at a
defense facility.
 43

- In five other cases, the Court used Due Process, First Amendment, Self-Incrimination, and Bill of Attainder
provisions to strike down the last remaining laws directed at subversive Communist activity.
The liberal majority no longer believed that Communism posed a threat to national security, while the conservatives
on the bench regarded that to be a judgment of national security that the Court should not make.

Vietnam
These cases concerned the constitutionality of Vietnam War protests and were important for issues of freedom of
expression. (The Court did not hear cases which may have questioned the constitutionality of the war itself.)
- The Warren court’s most important decision on the subject was United States v. O’Brien. O’Brien was
convicted for burning his draft card. He maintained that such an action was symbolic speech and was
protected by the First Amendment.
o Warren’s majority opinion claimed that there were limits on the constitutionality of free speech.
Warren asserted that the burning of a draft card hindered a substantial government interest because
it interfered with the functioning of the draft, and that the law against such action was in place to
insure the smoothness of the system and not to explicitly prohibit a form of war protest.
o However, the law against and relatively severe punishment for burning a draft card was expressly
related to the message conveyed by the act, and not about any inconvenience that it caused. This
fact has led Powe to consider O’Brien, “one of the most shameful moments of the Warren Court.”
(328)
- The Court was less hostile towards dissenters in Tinker v. Des Moines School District, when it allowed
students to wear black armbands in protest of the war because such conduct was not disruptive.
- In Brandenburg v. Ohio, the Court clarified its stance toward free speech by stating that mere advocacy of
unlawful action was not enough; instead, words had to constitute incitement to lose their constitutional
protection. This was a high point of the Court’s stance on freedom of expression.
At issue in both the domestic-security and Vietnam cases was the protection of First Amendment freedoms. Liberals
considered free speech so important to democracy that only minimal intrusions could be tolerated; the conservatives
valued the preservation of society over individual interests and gave preference to issues of national security when
considering limitations on the First Amendment.

Olmstead v. United States (1928)

1. Olmstead v. United States (sourcebook 575)
2. The Right to Privacy
a. Olmstead is the earliest case in this section (it's long before the Warren Court), and its precedent is
later overturned by Katz
3. 1928
4. 6-3?
5. Authored by Chief Justice Taft
a. Wire tapping and using recordings of a defendant's phone calls in court neither violates the 4th nor
the 5th Amendments. Because the wiretapping connections were made off of the defendant's
property, there was no trespassing, search, or seizure, hence no violation of the 4th. Since the
defendants weren't compelled to speak, there was no violation of the 5th.
6. Holmes concurs
a. Holmes' opinion is rather unremarkable. He essentially proposes that a balancing test be used to
balance the need to convict criminals with the need for the government not to commit crimes
itself. Between these two choices, Holmes chooses to allow some criminals to escape. (It seems
more like a dissent but whatever.)
7. Brandeis dissents. (Butler and Stone also wrote unimportant dissents, not in sourcebook.)
a. Brandeis' dissent is significant, and foreshadows the reasoning in Katz that overturns Olmstead.
Brandeis expounds the idea of a living constitution: "In the application of a constitution,
therefore, our contemplation cannot be only of what has been but of what my be." So, future
 44

technologies must be incorporated into the 4th; it doesn't matter where the wiretaps were inserted;
what matters is that the defendants' right to privacy was violated.
8. Key phrases:
Majority decision: "There was no searching. There was no seizure." "The Amendment itself shows that
the search is to be of material things."
Holmes' concurrence: "We have to choose, and for my part I think it a less evil that some criminals should
escape than that the Government should play an ignoble part."
Brandeis' dissent: Quoting from Weems v. U.S., "Therefore a principle to be vital must be capable of wider
application than the mischief which gave it birth.... [Constitutions] are not ephemeral enactments, designed
to meet passing occasions.... Rights declared in words might be lost in reality." "[The framers] conferred,
as against the Government, the right to be let alone--the most comprehensive right...." "The greatest
dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
[Brandeis is the shit.]
9. Key tests that were established: none
10. Nothing overturned.

***

Andrew Sternlight sternlig@fas

Fri. Nov. 19—lecture
I. White male conception of obscenity (expressions regarding sex, violence, and sometimes religion) is
deeply rooted in the United States
a. Roth v. United States (1957) required major transformation in the American consciousness
II. 3 Major Changes
a. Family Values: Changing Conception of Divorce (late 60s-70s)
i. Before the change, divorce litigation had become highly dramatic; husband & wife had to
prove adultery in order to obtain divorce; would perjure the relationship by taking artificial
photographs of husband or wife with a stand-in
ii. Change: “no fault divorce” – the state no longer has an interest in divorce (has become a
private matter) beginning with Nevada in 1960
1. Divorce rate began to “soar”
b. Women’s Movement
i. 1962: Helen Gurly Brown: Sex and the Single Girl was published
ii. 1964: Canonical beginning of the feminist movement in U.S. with major literary works
1. Betty Friedan: The Feminine Mystique
2. De Beauvoire: The Second Sex
iii. Note: if the feminist literary critique was the de facto beginning of the women’s movement,
then the Warren Court was over before it started
c. Gay Movement
i. Beginning of the gay movement is identified with the Stonewall Riots in New York’s
Greenwich Village (1970) - gays fought back against police intimidation
ii. beforehand, most gays lived closeted lives; the few who didn’t lived in a small handful of
Bohemian city centers (N.Y., San Francisco, Los Angeles)
iii. Middle-class gay consciousness began with the Kinsey Report (late 1950s) – report
demonstrated that adultery and homosexuality was much more prevalent in America than
commonly supposed
III. The Chicken & the Egg problem (greater Warren Court theme): Does the law affect the rate or direction of
social change, or does reflect social change?
a. We can try to map the obscenity cases onto surges in social change during the 1950s BUT in Roth v.
U.S. (1956), even a liberally-minded Brennan wouldn’t have known about women’s or gay rights 
seems like Horowitz suggests that the Warren Court affected change here
IV. History of Sexual Morality/Obscenity before 1956: 2 ways of “slicing the bologna”
a. Customs officials’ decisions
 45

i. Confiscating books belonging to tourists returning from Paris:

1. Lover by D.H. Lawrence
2. Tropic of Cancer by Henry Miller
3. Adventures of Fanny Hill
ii. Eventually, cases came to the U.S. Court of Appeals  struck down power of customs
officials to confiscate books
b. Culture of censorship
i. Themes in morally-policing works of literary expression: high-brow v. low-brow
1. “High-brow” = plays & books (esp. those that are published by prestigious
publishing houses, which sell at high prices, and which discuss traditional subject
matter)
2. “Low-brow” = magazines& movies
3. high-brow freed earlier than low-brow (books before magazines; plays before
movies)
ii. Books & Magazines
1. Despite overturning book confiscations, U.S. Court of Appeals did not overturn
magazine confiscations
2. 1960: book censorship was effectively over in America with the overturning of
Rhode Island’s blacklisting of Lady Chaderlie’s Lover
iii. Movies & Plays: Local  State  National
1. Before the Supreme Court included movies under the protection of the First
Amendment, all regulation was local
a. All big cities had censorship boards (i.e. the “Legion of Decency” in New
York, affiliated with the Catholic Church)
2. 1959: Movie censorship was first upheld
3. 1965: Friedman v. Maryland: Warren Court first put procedural limits on movie
censorship
a. Brennan writing—state needs to censor in a procedurally careful and correct
way – the narrowness of this prevented censorship altogether
b. Official censorship ended quickly, but was replaced by private rating
systems
iv. Television
1. very new in the United States, but extremely influential by reaching a large portion
of the population: televised McCarthy hearings, civil rights abuses (arguably
bringing about the 1964 Civil Rights Bill)
2. finite number of channels: because there was not an open market (monopoly), the
government needed to regulate it
V. Roth v. United States (1956)
a. First case about whether obscenity is protected by the First Amendment
b. Why not earlier?
i. Most issues took place at the state or local level
ii. First Amendment was given a restricted definition by Gitlow and N.Y. Times v. Sullivan
c. Standard: the dominant theme of the material appeals to prurient interests

Kyllo v. United States (2001)

1. Kyllo v. United States (2001)
2. Section: The Right to Privacy
a. Question: Does the use of a thermal-imaging device to detect relative amounts of heat emanating from
a private home constitute an unconstitutional search in violation of the Fourth Amendment?
b. Upheld the Court’s ruling in Katz v. United States (1967)
3. Date decided: June 11, 2001
4. Decision vote: 5-4
5. Majority opinion: Scalia wrote, with Souter, Thomas, Ginsburg, and Breyer agreeing
 46

a. Reasoning: "[W]here, as here, the Government uses a device that is not in general public use, to
explore details of the home that would previously have been unknowable without physical intrusion,
the surveillance is a 'search' and is presumptively unreasonable without a warrant."
6. No concurring opinions
7. Dissenting opinions:
a. Justice John Paul Stevens, with Rehnquist, O’Conner, and Kennedy agreeing
i. Argument: the "observations were made with a fairly primitive thermal imager that gathered
data exposed on the outside of [Kyllo's] home but did not invade any constitutionally
protected interest in privacy," and were, thus, "information in the public domain."

Griswold v. Connecticut (1965)

1. Griswold v. Connecticut (1965)
2. Section: The Right to Privacy
a. Question Addressed: Does the Constitution protect the right of marital privacy against state restrictions
on a couple's ability to be counseled in the use of contraceptives?
3. Date decided: June 7, 1965
4. Decision vote: 7-2
5. Majority opinion: Douglas wrote, Clark agreed
a. Reasoning: Though the Constitution does not explicitly protect a general right to privacy, the various
guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy.
Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right
to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is
therefore null and void.
6. Concurring opinions:
a. Goldberg wrote concurring opinion, with Warren & Brennan agreeing:
i. The Ninth Amendment is the keystone: unenumerated rights can be derived from the
“traditions and collective conscience of our peoples”
b. Harlan & White each wrote individual but less important concurring opinions
7. Dissenting opinions:
a. Black:
i. Justices Goldberg and Harlan need a specific Constitutional provision to protect the right to
privacy; the ambiguous Ninth Amendment is insufficient, because it does not explicitly say
there is a right to privacy
ii. Substantive due process (which he ties to the Ninth Amendment argument) is dangerous
because it is subject to the prejudices and predilections of judges [the argument at the basis of
textualism/originalism]
b. Stewart
i. Justice Douglas failed to identify specifically which amendment guarantees the right to
privacy; his argument is ambiguous and lacks textual foundation
8. Key phrases: “hopefully enduring” marriage; recalled “penumbras formed by emanations” from NAACP v.
Alabama
9. Key theme: substantive due process revisited; the unenumerated rights in Ninth amendment are called forth in
this effort

Powe, The Warren Court, pp. 372(Griswold v. Connecticut)-377

Background of Case: Connecticut’s Planned Parenthood (executive director Estelle Griswold) opened a birth clinic
in New Haven; found guilty of giving advice to married couples & fined $100
- Thomas Emerson (Griswold’s advocate) argued substantive due process
- FOR overruling Griswold:
o Justice Douglas writes the opinion:
 Disregarded the substantive due process argument
 He argued that the right to privacy is a textually-based right, primarily from the First
Amendment and also (like the “penumbras formed by emanations” argument in favor of
the right to association in NAACP v. Alabama) from a string of other amendments which
create “zones of privacy”
 47

 Also argued the importance of keeping marriage a private institution; upholds the
sacredness of marriage (even though he was less than a year away from his 4th marriage)
o Justice Goldberg concurs:
 The Ninth Amendment is the keystone: unenumerated rights can be derived from the
“traditions and collective conscience of our peoples”
 Goldberg takes Harlan’s substantive due process route by recalling an ambiguous 9th
amendment
- Dissents:
o Justice Stewart
 Justice Douglas failed to identify specifically which amendment guarantees the right to
privacy; his argument is ambiguous and lacks textual foundation
o Justice Black
 Justices Goldberg and Harlan need a specific Constitutional provision to protect the right
to privacy; the ambiguous Ninth Amendment is insufficient, because it does not explicitly
say there is a right to privacy
 Substantive due process (which he ties to the Ninth Amendment argument) is dangerous
because it is subject to the prejudices and predilections of judges [the argument at the
basis of textualism/originalism]
 Black’s Griswold dissent was the last argument in the Warren Court stating that only
text-based rights can be judicially enforced
- Gallup polls taken at the time indicated an American majority as well as a Catholic majority in support of
advice on contraception
o Powe seems to suggest that popular opinion governs the judicial apparatus in this case

Katz v. United States (1967)

1. Katz v. United States (1967)
2. Section: The Right to Privacy
a. Facts of the Case: Acting on a suspicion that Katz was transmitting gambling information over the
phone to clients in other states, Federal agents attached an eavesdropping device to the outside of a
public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was
convicted under an eight-count indictment for the illegal transmission of wagering information from
Los Angeles to Boston and Miami. On appeal, Katz challanged his conviction arguing that the
recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting
the absence of a physical intrusion into the phone booth itself. The Court granted certiorari.
b. Question: Does the Fourth Amendment protection against unreasonable searches and seizures require
the police to obtain a search warrant in order to wiretap a public pay phone?
3. Date decided: December 18, 1967
4. Decision vote: 7-1 (Thurgood Marshall did not participate)
5. Majority opinion: Stewart wrote, with Warren and Fortas agreeing
a. Reasoning: Katz was entitled to Fourth Amendment protection for his conversations and a physical
intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth
Amendment protects people, not places," wrote Justice Potter Stewart for the Court.
b. Fourth Amendment cannot be translated into guaranteeing a general right to privacy, but instead only
a specific one against certain kinds of governmental intrusion
6. Concurring opinions:
a. White
1. Agrees, but notes that there are reasonable circumstances for a reasonable search
without a warrant
b. Douglas, with Brennan agreeing
1. White’s concurrence gives the Executive the green light to resort to illegal
wiretapping
2. Differentiates the Executive and Attorney general from the unbiased magistrate
c. Harlan:
1. introduced the idea of a 'reasonable' expectation of Fourth Amendment protection:
2. a person must have an actual (subjective) expectation of privacy
3. the expectation is one that society would recognize as “reasonable”
 48

4. there are exceptions to the rule (like White says)

7. Dissenting opinions:
a. Black:
1. The literal words of the Fourth Amendment dictate physical location; the Framers
did not refer to electronic communication because they did not know about it  it
therefore could not have been prohibited by them
8. Key phrases: “constitutionally protected area;” “[petitioner] sought to exclude…the uninvited ear;” “The Fourth
Amendment protects people, not places”
9. Key test: “reasonableness test” stated in the Fourth Amendment

***

Jeslyn Miller jmiller@fas

Kennedy, Birth Control in America, 218-21, 224-26, 230-31, 232-57, 267-71
• Federal Comstock law (passed in 1873) forbade the mailing, interstate transportation and importation of
contraceptive materials and information.
• 22 states had “little Comstock laws” which imposed restrictions including MA probation on publishing
information having to do with contraceptives to CT’s absolute ban on the “use” of birth control devices.
• Margaret Sanger started battling for birth control in 1914.
• With one exception, no state court rendered a decision favorable to birth control advocates until 1929.
• In 1921 Sanger succeeded in having the “doctor’s only bill”—that physicians have the right to prescribe
contraception—introduced in the in NY legislature. (not successfully passed)
• With the help of monetary donations, Sanger launched a national legislative campaign, the National Committee
on Federal Legislation for Birth Control, of which she became the chairman. (1928)
• Her strategy moved from individual to social. In 1932 hearing she began to stress making information available
to poor and that high birthrate = unemployment, “swelled roll relief” and burden on taxpayers.
• 1936. Circuit court decides United States v. One Package of Japanese Pessaries upholding doctors’ right to
give out information about contraception.
• Mrs. Sanger calls the Judge Hand decision (that emphasizes medical authority) in this case, “the
greatest legal victory in the BC movement.”
• After the decision, the National Committee spent a few months visiting doctors in every state and
county, informing them of the new legal status of BC and urging them to incorporate contraceptive
services into local public health programs.
• In early 1937, Mrs. Sanger decided the National Committee had done its job and disbanded it.
• In late 1937 the Birth Control council of America was brought into being. Name changed to Planned
Parenthood Foundation of America several years later.
• Mrs. Sanger always insisted on getting sole credit for her accomplishments.
• Sanger was abrasive and combative, often making more enemies than friends. (Also politically and
legally naïve/inexperienced)
• “Fortunately for the BC movement, less self-interested heads than Mrs. Sanger’s prevailed” (257).
• Sanger left the public BC scene in 1942.
• IMPORTANCE FOR CLASS: This article comes before reading Griswold v. Connecticut (1965). Griswold
overturned a Connecticut law of 1879 that made the use and/or the prescription of any form of birth control a
crime for the woman and for the person who provided the prescription. The law had been interpreted to apply
to anyone who gave advice about birth control.

***

Eric Price eprice@fas

Gormley, “One Hundred Years of Privacy,” (excerpts) pg 1335-1368
Main Point: The definition and applications of the right to privacy in American society have expanded constantly to
adapt to social evolution ever since Warren and Brandeis published “The Right to Privacy” in 1890. The right to
privacy in the modern legal system has various aspects to it, and it is important to understand how each of these
aspects evolved and how each is related to the other. In this part of the article, Gormley explains the evolution of
two particular aspects of the right to privacy: tort privacy and Fourth Amendment privacy.
 49

Relation to Court Cases: This reading specifically mentions Olmstead and Katz, which were assigned cases in this
section, as an example of how the Fourth Amendment right to privacy evolved over time to be what we know it as
today.
Course Related Themes: Brennan’s living constitution and specifically the theme that societal changes tend to
influence the legal interpretation of the constitution.

Introduction
In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy” in which they defined privacy as a
“right to be let alone,” inherent in common law. Ken Gormley’s article attempts to follow along Warren and
Brandeis’s original path of providing a legally workable definition of privacy. It does so by breaking down privacy
into five parts: tort privacy, first amendment privacy, fundamental-decision privacy, and state constitutional
privacy. Most previous definitions of privacy have attempted to focus on one of these aspects of privacy while
ignoring the rest. This is not desirable when attempting to provide an inclusive, timeless definition of the concept.
Privacy has become a central player in modern American law, just as the Commerce Clause was in the 1930s and
40s and the due process/equal protection clauses were in the 1960s and 70s, which makes understanding its socio-
historical originals important.
The Privacy of Warren and Brandeis (Tort Privacy)
Warren and Brandeis pieced together the idea of tort privacy from the evolution of American common law. The
first step in the creation of the modern conception of privacy, tort privacy was the “right to be let alone, with respect
to the acquisition and dissemination of information concerning the person, particularly through unauthorized
publication, photography or media.” Court case examples used by Warren and Brandeis as evidence: Marion
Manola v. Stevens & Myers (1890); appellant (a Broadway actress) could not be photographed while wearing tights
in a play. Pollard v. Photographic Co.; photo studios could not sell Christmas cards with appellant’s face on them.
Prince Albert v. Strange: A printer could not display and publish etchings made by appellants (Prince Albert and
Queen Victoria). Most of these cases were quite weak as evidence of a right to privacy, proving that Warren and
Brandeis were not reporting the truth about law in the 1890s, but instead “the law as they believed (or hoped) it
should be.” Though there are rumors that personal quarrels between Warren and the Boston press were the impetus
for the article, Gormley argues that the real historical cause was the explosion of mass media in the US:
industrialization led to urbanization and immigration in the late 1800s which, in combination with great
technological advances, caused an expansion of media into mass markets. This, in turn led to the phenomenon of
yellow journalism, which capitulated on the desire of the masses to hear stories that exposed parts of people’s
private lives. This phenomenon is a much more plausible cause for Warren and Brandeis’s article, whose ideas
arguably would have been proposed by someone else at around this time if it hadn’t been by them. There was a
legal need to react to these changes in American society.
Fourth Amendment Privacy
English law, which carried over into the writing of the Constitution of the US, dictated that “a man’s home is his
castle” and it was protected from government infringement. This is clear in the “searches and seizures” clause of the
Fourth Amendment. Boyd v. US (1886) was the first case that specifically wed the notion of privacy to the
guarantee against unreasonable searches and seizures. In this case, the seizure of 35 cases of polished plate glass at
the port of NY was held unconstitutional by the searches and seizures clause. Brandeis was appointed to the
Supreme Court in 1916, and in Olmstead v. US (1928) he dissented with the aim of applying his idea of the right to
privacy directly to the Fourth Amendment searches and seizures clause. He argued that wire tapping infringed upon
a person’s privacy even though there was no physical intrusion and no seizure of material goods. He claimed that
the idea of privacy had to be expanded in order to evolve to changes in technology such as wire tapping, which the
founding fathers could never have foreseen. Finally, he argued that such evidence was also inadmissible in court by
the Fifth Amendment. Just as the Warren/Brandeis idea of tort privacy had come about because of technological
advances that facilitated mass media, the idea of Fourth Amendment privacy came about by the further
technological innovations in wire tapping and other methods of surveillance following Olmstead. However, it was
not until Katz v. US (1967) that the times finally caught up with Brandeis’s dissent. Katz was arrested by federal
authorities after an electronic listening device attached to the outside of a telephone booth was used to record his
conversations as he ran bookmarking activities. Justice Stewart struck down his conviction based on the right to
privacy implied by the Fourth Amendment searches and seizures clause. Harlan concurred, offering a notion of
“reasonable expectations of privacy” which later became widely used. Brandeis, then, was responsible for the
creation of the creation of both types of privacy so far described: privacy from other citizens (ie newspapers) and the
privacy from an intrusive government. According to Brandeis, the right to privacy from intrusive government had
been included in the Constitution whereas the right to privacy from other citizens had remained only in the common
 50

law. However, he saw both forms as having been born from the same overarching idea of privacy, which had
always permeated American society.

***

Jeni Steinhardt steinhar@fas

Gormley, “One Hundred Years of Privacy,” (excerpts) 1374-1441
(This article is mostly a survey of different court cases relating to privacy. If you are only going to read part of it,
and you probably don’t want to read the whole article, you should read the beginning of the epilogue which makes
clear the distinct types of privacy.)
First Amendment Privacy
Two types of first amendment privacy cases:
1. Privacy intersects with free speech
2. Privacy intersects with free press
History of Privacy vs. Free Speecch
Brandeis’ notion that privacy has some place among 1st amendment
WWII Martin v. Struthers allowed Jehovah’s witnesses door-to-door pamphlets
(Frankfurter’s dissent, Reed’s call for “assurance of privacy”)
Breard v. Alexandria 1951 first victory for homeowner privacy
Packer Corp. v Utah Brandeis (extreme notion of privacy) banned billboards (you can’t turn them off)
Kovacs v. Cooper 1949, beat out 1st amendment, no loud noises that pedestrian must face
Two hemispheres of First Amendment:
1. Familiar freedom to speak freely w/out government interference
2. Freedom of citizen to think private thoughts, free from outside interference
More history:incorporation of privacy prevails
Stanely v Ga (privacy from 1st amendment) and Rowan v. U.S. Post Office (ambiguous origin of privacy):
notions of privacy in the home, right to be let alone
Historical context: in 1940s and 1950s, American urbanization finished, houses were crowded, men working long
shifts needed to sleep. Development of suburbs for solitary thought.
History of Privacy v. Free Press (press usually prevails)
Been a downhill spiral for Brandeis’s privacy tort since New York Times v. Sullivan curtailed states’ ability
to win libel suits (article lists a bunch of cases but doesn’t give details and I don’t think they matter for the
class)
Most recent blow: Florida Star v. BJF newspaper allowed to print info improperly disclosed in public
records.
Fundamental Decision Privacy—blended constitutional privacy notions with 14th amendment liberty cases
Griswold v. Connecticut law prohibiting contraceptive use/distribution unconstitutional, but unclear what
part of constitution supports this.
(Douglas says “penumbras” of 1st, 3rd, 4th, 5th, 9th amendments. But Justice Holmes was the first to use the
phrase.)
Roe v. Wade 1973 based on “liberty” in 14th amendment allowed abortion. Dangerous decision because it
rests on 1 word.
Forces that generated new species of privacy
Driven by technological advance. (safe abortions, birth control pill, spermicide).
Asked: Who gets to make the fundamental decision—me or the government?
Laurence Tribe: Roe was a legitimate expression of society’s morality, not a
return to Lochner
Courts moved with caution since Griswold and roe.
Epilogue
Privacy not addressed: fifth amendment free from self incrimination.
Associational privacy (remember NAACP v. Alabama)
Summarizes Five points addressed:
1. Right to be let alone, referring to disemmination of information (from Warren and Brandei’s original
privacy tort)-necessary with industrialization/urbanization of American in late 1800s
2. Right to be let alone, regarding government search and seizure (4th amend)—necessary in mid 20th
century to fight tech that allowed govt to observe stuff about citizens
 51

3. Right to be let alone, from someone else’s free speech that disrupts liberty of thought (first amendment
privacy)- after WWII to protect solitude
4. Right to be let alone, regarding decisions about yourself (14th amendment privacy) necessary in 1960s
and 70s w/medical technology and new choices
5. Right to be let alone, regarding an overlap of #1-4, extending greater protections to the person through
state constitutional provisions (state constitutional privacy)

***

Week 10
Vasco Bilbao-Bastida bilbao@fas
Mon. November 22—lecture
1. Main Points of Lecture: Obscenity was one of the most difficult issues for the Warren Court
because of the various conflicting perspectives on the issue. Also, the Roth standard
was hard to apply.
2. How do these points fit into the broader theme of the course? The First Amendment has been a
recurring theme for the Warren Court and plays a large role in these cases.
3. Different views? Black/Douglas had a more absolutist view protecting all speech as opposed
to the confusing “Roth Standard.”
4. How do these broad themes fit into the course as a whole? The obscenity cases reflect the
debate over how to interpret the Constitution.

Brennan’s formulation of obscenity standard:

• Roth v. US
· Utterly w/o redeeming social importance
· Brennan rejects idea central to puritanical culture of his day  sex doesn’t necessarily mean
obscenity/pornography
· Idea that you apply contemporary community standards that are national not local
o No longer subject to local determinations of taste and decency
o Practical effect – red states can’t administer local parochial morality
o National standardBlues States: more liberal, cosmopolitan, sexually liberated
o Brennan makes clear and conscious choice for more cosmopolitan view of world

What happened to Roth?

· Was a disaster!
· Beginning of the end can be seen in Jacekbillus v. Ohio(1964) – dealing w/ porno film
o 7 opinions! Justices couldn’t agree on any applications of Brennan’s formula
o Justices watched pornos; Stewart “I know it when I see it”
o Total frustration of justices in ability to apply Roth standard w/ ANY consistency
o Moving closer to Black and Douglas’s absolutism
· By end of Warren Court, as Powe says, basic rule was anything goes
o Only real category of people to be protected against obscenity was children
o 1st Amendment didn’t’ sanction restrictions on literary/cultural ideas

Almost none of this discussed in 10 yrs after Roth, but suddenlyCatherine McKinnen
o all of a sudden delivered thunderbolts against conventional liberal thoughts of obscenity
o important and fertile legal thinker – in 1979 book Sexual Harassment – single-handedly created
legal theory on which lawsuits on sexual harassment are made
o w/o this book, probably would not be today lawsuits on sexual harassment
o big books McKinnen wrote – Feminism in 1987 and book on pornography in 1988
o book on pornography based after she had managed to persuade Minneapolis city council to pass an
anti-pornography law, mainly aimed at imagery and activities that suggest sexual subordination of
women
o for 1st time, demonstrated asymmetry in whole pornographic debate
 52

Wed. Nov. 24—lecture

1. Main Points of Lecture: The movement toward cultural pluralism.
2. How do these points fit into the broader theme of the course? Instead of always reflecting the
interests of the dominant protestant anglo-saxon majority, the Court embraces the
overlooked minority.
3. Different views? Even before the liberal majority was consolidated, the Court began moving
toward cultural pluralism.
4. How do these broad themes fit into the course as a whole? The Warren Court became famous
in part because of its commitment to the protection of the rights of the individual.

Warren Court Cases involving pluralism/heterogeneity/homogeneity

· 1962, Engel v. Vitale  (not in reading) – freedom of religion
o Court struck down NY 21 word compulsory school prayer
o Black  prohibition against establishment of religion, no business of government to impose
official prayers
o Remarkable change in religious groups in US  reversal of Southern Baptists on separation of
church and state  politics of Baptists was insistence of separation b/c feared Catholics would use
private schools to get money from state for their schools  now they want religion in schools!
Huge shift!
o Court got more complaints about this case than any other  more widespread opposition to this
than any other case
o Post’s discussion of pluralism
 Our values of pluralism which embrace rather than reject heterogeneity – associated by
legal scholars as interest group pluralism – groups struggle to get goodies
 Not what Post is talking about  deeper meaning – diversity is explicitly acknowledged
and celebrated
 Kallan – democracy involves conservation of differences – union not uniformity.
• Mutual respect/cooperation based on mutual understanding
o Prof not pro/con Kallan’s cultural pluralism love, focus on statement ‘democracy not elimination
of differences but conservation of them’
 Do we have conception of democracy that includes not only free and fair elections but
also one that takes into account a specific idea of cultural values?
 Is democracy compatible w/ assimilation & individualist perspective too?
 Fundamental q of whether democracy entails cultural values?

Democracy
· Until 1940 “democracy” never appeared in Court opinions
o And when DID appear, democracy was a NEGATIVE concept
o Framers didn’t want democracy – wanted republican government
· But can argue that Civil War Amendments argued for democracy
o 14th A w/ guarantee of equal citizenship – 1st real substantiation of democratic argument
· descriptively at least, we have living Const that changes over time
o democracy became a player b/c of idea of living constitution
o only emergence of democracy as consensus cultural ideal (fighting fascists then communists) that
democracy became the totemic word that everyone agrees to

United States v. Roth (1957)

1. Name: Roth v. U.S.
2. Section: Obscenity
a. How is the case important? This case set the (albeit poor) obscenity standard. Brennan was new to the
Court and the obscenity cases were probably the hardest of all the Warren Court decisions.
3. Date decided: 1957
4. Decision vote: 7-2
5. Justice writing opinion: Brennan
Justices joining in opinion: Warren, Reed, Frankfurter, Burton, Clark, Harlan
a. Obscenity is not protected by the First Amendment
 53

6. All concurring justices just joined Brennan’s opinion

7. Dissenting Justices: Black and Douglas
a. They preferred an absolute protection of freedom of speech.
b. But had the most permissive definition of obscenity at that time
8. “Utterly without socially redeeming importance”
“Sex and obscenity are not synonymous”
Brennan wanted to protect the arts etc.
9. Roth Testwhether to the average person, applying contemporary community standards, the dominant theme of
the material taken as a whole appeals to the prurient interests.
10. Previous Cases overturned: Regina v. Hicklin
Hicklin Test: More strict because a material’s obscenity is judged on the basis of the effects said
material would have on the most vulnerable of citizens.

Hopkins, Mr. Justice Brennan and Freedom of Expression, pp. 19-29

1. Main points of the reading:
• Obscenity was/is the most difficult area of “free-expression jurisprudence.
• 1990 Ruled mere possession of child pornography was a crime
• Jacobellis v. Ohio: Supreme Court had 7 opinions
• Brennan: “No bona fide work of art or information may be suppressed in the name of obscenity.”
• Justice Stewart wrote in 1964: “I know it when I see it.”
• Brennan determined that “ all ideas with ‘even the slightest redeeming social importance’ whether
unorthodox, controversial or hateful, have the full protection of the guarantees [sic], unless excludable
because they encroach upon the limited area or more important interests
• The so-called Hicklin test was rejected by a number of American courts in place of a test of “whether to the
average person, applying contemporary community standards, the dominant theme of the material taken as
a whole, appeals to prurient interests.”
• In Manual Enterprises, the Court held that magazine that magazines aimed at homosexual men were
“dismally unpleasant, uncouthly, and tawdry” but not obscene.
• The relevant community was the whole United Statesnot small local areas.
• Brennan rejected the argument that pornography causes sexual crimes.
• Obscenity is excluded from First Amendment protection because it is utterly without social importance.

2. How do these points fit in with the court cases of the section?
The reading basically explains how it was hard to decide the obscenity cases and how the Roth standard
was hard to follow in subsequent cases.

3. How do the themes of the reading fit into the course as a whole?
Although it was hard to set a good standard, the Court did go farther than any other court in
creating a more flexible definition of obscenity.

Grunes, “Justice Brennan and the Problem of Obscenity” (excerpt)

1. Main points of the reading:
• During his tenure on the Supreme Court, Justice Brennan was extremely influential
• However, although he was a brilliant Justice, Brennan was unable to maintain a majority for the standard he
set forth in Roth v, U.S.
• During the Burger Court, the majority decided to define obscenity with a more precise definition and so
Brennan became the leader of the justices in dissent.
• Brennan states continued this opposition into the Rehnquist court.
• The 1957 Roth-Alberts opinion was the last time Brennan’s opinion was followed.
• One reason that a majority was hard to muster might have been due to a lack of Warren leadership.
• It was not until 1964 in Jackobellis that Brennan reexamined his Roth standard.
• Black and Douglas were absolutists in favor of the protection of virtually all sexually oriented expression.
• Burger Standard
1. Abandonment of the permissive standards and rationale from the Warren Court
2. establishment of a freedom-restricting test for determining obscenity
3. commitment to defer to federal and state legislatures in determining obscenity
 54

• This article goes into painful details about how basically Brennan went from leading a
weak majority to leading the dissent.

2. How do these points fit in with the court cases of the section?
The reading talks a bit about Roth but all of this has been mentioned before in the notes and in the more
interesting Hopkins reading.

3. How do the themes of the readings fit into the course as a whole?
For a court that was able to do so much, the obscenity cases might be viewed as its biggest
weaknesses.

***
Mary Kate Burke mburke@fas
De Grazia, Girls Lean Back Everywhere, pp. 398-416
O’Neil, Coming Apart, pp. 200-08

***

Camille Chang cmchang@fas

Post, Constitutional Domains, pp.89-94
Before 1980s, obscenity laws = regulation of sex
 Constitutional issue: Can free expression be suppressed for purpose of preserving the purity of the community
and the salvation and welfare of the consumer

1980s, Catharine MacKinnon & Andrea Dworkin argued that pornography = oppression & sexual subordination of
women  constructs the social reality of gender inequality
 Constitutional issue became: Can free expression be suppressed to prevent assault on the status of women as a
group?

3 options for legal order of a heterogeneous society:

1. Assimilationism
o place authority of legal sanctions behind cultural perspective of dominant group
o If society is homogeneous, law considered to be expressive of common community norms; but if
society is heterogeneous, law considered hegemonic
o Examples include flag salute case (Minersville v. Gobitis)
2. Pluralism
o Embrace heterogeneity, “nation of many nations”
o Politics as a struggle among self-interested groups for scarce social resources
o Concept of “common good” is incoherent, potentially totalitarian or both
o Democracy involves the perfection and conservation of differences through respect, cooperation &
understanding
o Law can range from state neutrality to state enforcement of norms of mutual respect
o Group-protection on behalf of the individual  Rights of the group over the rights of the
individual
o Safeguards diversity by enabling competing groups to maintain their distinct perspectives
3. Individualism
o Focuses on the protection of individuals vis-à-vis groups
o Autonomous choices of individuals
o Example: Douglas’ dissent in case overturning school attendance requirement for Amish children
(Wisconsin v. Yoder)
 He argued that the constitution safeguards rights of individual Amish children to choose
whether or not to become part of Amish community, not the right of the Amish
community to protect their identity through preservation of traditions
o Example: West Virginia v. Barnette
 Reversed Gobitis in favor of intellectual individualism
 55

 “if there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion or other
matters of opinion”
 individual’s right to differ as the things that touch the heart of the existing order

Powe, The Warren Court, pp. 113(Obscenity)-119, 336-57

Roth v. U.S. & Alberts v. California (1957)
 Court held that obscenity not constitutionally protected, but obscenity test is made more liberal

tests for obscenity used previously:

♦ British “Hicklin” test = “tendency of the matter to deprave and corrupt those whose minds are open to such
immoral influences”  tested materials by effects on young
o Isolated passages could make a whole work obscene
o Victorian morals
♦ Federal judge, Woosley test = work must be judged in its entirety and must “stir sex impulses or lead to
sexually impure and lustful thoughts”

Goals in Roth:
1. get rid of Hicklin test
2. protect literary works from obscenity prosecutions

Butler v. Michigan (1957) – Court held that materials must be tested by their effects on adults

Questions in Roth and Alberts:

1. Does government have the power to criminalize obscene materials?  only considered this
2. If yes, then were the materials the defendants distributed obscene?

Decision:
Court was being attacked on too many fronts to say anything but yes to the 1st question
Used history to decide = Framers intended to exclude obscenity  led to questions:
1. Was the history accurate?
2. Should what some people thought over a century ago bind us today?
Brennan’s method (majority): approve the ends the govt was trying to reach, but find fault with the means
- said obscenity not included within 1st A  no need for a reason to validate regulating it
Warren believed that once art and literature were protected, the 1st A was satistifed
- the person, not the book is on trial
Harlan used federalism grounds: states right to experiment and differ in morality
- used Due Process Clause of 14th A: state law must subvert fundamental liberties so much that it cannot be
sustained as a ration exercise of power
Douglas decided on 1st A terms: speech must be inseparable from illegal action to be regulated
- had faith in American people to censor for themselves

mid-1960s, Court’s priorities = 1. continue Roth’s protection of serious art and literature
2. get censorship procedures out into the open and subject to legal review

1962 – Brennan spelled out procedural requirements of censorship:

1. burden of proof on censor
2. judicial review
3. both most be done quickly
 ended censorship boards

Jacobellis v. Ohio (1964) = Les Amantes art film

Brennan decided w/in Roth:
1. sex is not obscenity
2. to be obscene, must go substantially beyond customary limits of candor
 56

3. tested with national not local community standards

4. justices must review obscenity cases de novo (look at materials & decide if obscene, case by case)
Stewart = “I know it when I see it”
Black & Douglas = absolutist
Warren & Clark dissented – for local rather than national standards & disagreed with de novo review

Established art and literatures as protected under Constitution even if offensive or sexually arousing

Brennan’s Jacobellis opinion reinforced his position as key justice:

1. de novo review  had final say on application of Roth to materials
2. relevant community is national  national standards = Brannan’s standards

Except for Brennan, Warren & Fortas, other justices stopped trying to define obscenity
Brennan turned to bright line

1966 trilogy: Memoirs v. Massachusetts, Ginzburg v. U.S., Mishkin v. New York

Court only protected Fanny Hill (Memoirs) by requiring that state prove that book was w/o social value as well as
prove prurience and patent offensiveness
Brennan acted like Warren - obscenity about evil people not books
Ginzburg punished for pandering = determination of obscenity influenced by distribution style/advertising

Redrup v. New York (1967)

Issue: does seller have to know materials are legally obscene or just that they appeal to prurient interests to be
prosecuted?
Court will protect sexually arousing material even if it has little social value as long as 3 conditions met:
no kids, no unconsenting adults, no pandering
“to Redrup” = to reverse obscenity cases w/o reason

Ginsberg v. New York (1968)

Like in Mishkin v. New York, Brennan held that obscenity standard can vary based on target audience, in this case,
minors.
State can control kid’s behavior b/c it is responsible for their growth

Stanley v. Georgia (1969) = mirror of Mapp v. Ohio

Issue in Mapp = right of private possession of obscene materials
Decided Mapp on 4th A exclusionary rule applied to states
Issue in Stanley = whether a search warrant for one type of contraband authorized seizure of another type
Decided Stanley on 1st A ground of right to possess obscenity
Thurgood Marshall said state cannot control private morality  undermined Roth
But avoided outright rejection of Roth by distinguishing Roth as dealing with public dissemination
Decision could logically be extended to include right to acquire obscene materials for private use

Social context of cases:

1960 birth contol pill available  sexual revolution
“nudie-cutie” films showing in select urban areas since beginning of decade
 1965 mainstream films with nudity  towards end of decade, films with exposure for exposure’s sake
Sexually explicit materials on the market no caused by Supreme Court and they did nothing to stop it
- Justices’ liberal allies all believed in modernizing morals  Even if troubled by sexual materials, justices
would not desert their allies for the conservative mores of foes
Those in arts and letters viewed Black and Douglas as representing the only sensible view of the 1st A

***

Week 11
Sean Karamchandani karamch@fas
 57

Chaffee, “The Third Degree,” Report to the National Commission, pp. 19-20, 38-39 ,
52-53, 83-92, 102-05, 110-15, 123-30, 152-55
This article is an examination of the use of the third degree in different cities:

“third degree” is used in this report to mean the employment of methods which inflict suffering, physical or metal,
upon a person in order to obtain information about a crime. Those who inflict the third degree are ordinarily law
enforcement officials-

the third degree in this report encompasses more than physical violence- many hours of continuous questioning
causing severe fatigue, accompanied by deprivation of sleep and food

“the extortion of statements by illegal pressure upon arrest or en route to the police station”

According to Major Sylvester of Washington (and other police officials) claim the third degree no longer exists

From 1920 to 1930, inclusive, there were 67 cases in which appellate courts found it to be proved that third-degree
methods were used to extort confessions from suspected criminals (total of 106 cases from 31 states and 4 Federal
circuits)

There are a bunch of descriptions of the existence of third degree in different states (I’ll summarize super briefly
cause its pretty stupid)

NEW YORK: doesn’t have a specific third degree clause, but something pretty close and yet “the charter provision
and the rules offer opportunity for physical violence to prisoners, in police stations, with no witnesses present, and
… accusations are prevalent that the police avail themselves of those opportunities for the purpose of extorting
confessions from their prisoners by brutal and violent assaults upon them”

“Judges and prosecutors as well as police would all have to be men of high standards of honesty, intelligence,
efficiency, and faithfulness to duty”

“Former Commissioner McLaughlin refused to take any action on complaints of brutality made by a committee of
the New York County Lawyers”

The consultants proceed to argue that if police are unable to use force there will be a resulting increase in criminal
activity (cause police will fear that he will be brought up on charges if he has to use force)

“the third degree is widely and brutally employed in New York City” and it was reportedly used more often when
there was pressure on the police for a solution

BUFFALO: obtain an exceptional number of confessions

“the present commissioner… indicated his feeling that certain legal obstacles should not be permitted to stand in the
way of police efficiency”

“I’m going to protect the community. If in doing so I make a mistake and trespass on somebody’s rights, let him
sue”

“there seems little doubt of the existence of the third degree in Buffalo”

BOSTON: “the third degree and related types of police illegality are at a minimum in Boston, though they are not
quite nonexistent”

NEWARK: “the third degree exists in Newark but subject to control”

 58

The use of pressure in various forms to get confessions is frequent, but it is kept without bounds, so that there are no
outstanding flagrant cases”

There is evidence of use of the “hard and soft” method (good cop bad cop)

There is fear that if they use the third degree the newspapers will print it and people will be outraged”

PHILADELPHIA: “there was a good deal of third degree practice in Philadelphia until something over two years
ago”

“the substantial disappearance of brutality in connection with confessions has been credited to the Director of Public
Safety, Lemuel Schofied and more immediately to Inspector William Connelly, in charge of detectives”

practice of “cold storage” employed sometimes for up to three weeks (isolated)

CLEVELAND: “in Cleveland the third degree is prevalent”

CHICAGO: “Illinois has third degree statutes making criminal the infliction and even the threatening of violence”
but despite these “the third degree is thoroughly at home in Chicago”

Conclusions:

“the third degree- the inflicting of pain, physical or mental, to extract confessions or statements- is widespread
throughout the country”

“physical brutality is extensively practiced”

“the method most commonly employed is protracted questioning”

“methods of intimidation adjusted to the age or mentality of the victim are frequently used alone or in combination
with other practices”

“prolonged illegal detention is common practice” (used to extend the time in order to get a confession)

***

Talia Kraemer kraemer@fas

Mon. November 29—lecture
- until the warren court (hereafter WC), there was very little and sporadic review of state criminal
proceedings
- after the WC: such review becomes a pervasive part of court procedure

A. Race and problems with the justice system

- 3 big trials in the S. in the 20s/30s showing problems with criminal procedures: Talia Kraemer
o Moore v Dempsey (sp?) – defendant in jail, there’s a mob outside, so he confesses, and is then Comment: Connects to issues of the WC and race
sentenced to death in general – more activism when it comes to discrete
 J. Holmes usually averted his eyes to S’s activity, but this case went too far and insular minorities – WC becoming active with
criminal procedures b/c it involves protecting
 Homes calls it a “mask” – essentially a legal lynching (1923) discrete and insular minorities (Carolene Products
 first case where a black person’s conviction is overturned footnote)
o Scotsboro cases: 9 bl males accused of raping 2 wh. women; all sentenced to death
 Powell v AL (1935): several of their convictions are overturned on grounds that court had failed to
provide adequate council
 court also found unjustified wholesale discrimination of bls from juries – violation of the 14th
amendment
o Brown v. Miss: case of coerced confessions, again a black-on-white crime, convictions based
solely on the confessions  Supr. Ct reverses the convictions
 59

- Lynchings: big in S following civil war; were most prevalent in the 1880s and slowly decreased, least in the
1950s – reflects one of two possibilities:
o a real change in mentality – Brown was working
o courts were essentially doing the work for them, so there was no need
- NAACP: doesn’t participate in the Scotsboro cases – struggle between the NAACP and the communist
party radicals, and eventually the communists take over the case and use it to make a name for themselves
 reveals a more general strategy struggle w/in the NAACP – question of whether or not a legal strategy was
self defeating – (should they be maneuvering inside or outside of the legal system? Same question related to
Brown.)
- NAACP first gained prominence in the 1930s in coerced confession cases, getting capital punishments Talia Kraemer
reversed Comment: Issue of whether social change can be
brought about through the courts or not – what is the
B. Search and Seizure proper avenue for attempting to cause social change?
We asked the same question about Brown, especially
Wolf v. CO: connecting to whether or not Brown accomplished
o Frankfurter: though the 4th amendment applies to the states through the due process clause of the anything
14th, there is still no exclusionary rule
o claims there are other remedies, such as suing the police – and none of these remedies are Talia Kraemer
expressly a part of the 4th amendment Comment: More general issue of incorporation of
Mapp v. OH: court decided exclusionary rule IS part of the 4th amendment the Bill of Rights through the 14th amendment to
apply to the states
- Prohibition: 1920-23
- Before prohibition, 4th amendment rarely enforced by Sup Ct
- Prohib. is the first time when really have active national police force – FBI becoming really active
- WWII – have movie images of Nazis knocking down doors – brings ppls attention to what search and
seizure becomes in a tyrannical society

Mapp v. Ohio (1961)

1. Mapp v. Ohio
2. Constitutional Limits on Criminal Process
a. Decides that the exclusionary rule applies to the states; namely, all evidence obtained by searches
and seizures in violation of the constitution is inadmissible in a state court
3. June 19th, 1961
4. 6-3
5. Clark delivered the opinion for the court, w/ Warren, Brennan joining in
a. court notes that many states have on their own adopted the exclusionary rule
b. is futile to try to protect 4th amendment through other types of remedies
c. since 4th enforceable against the states by the 14th, it is enforceable by the same sanction of
exclusion as against the federal government
d. “makes very good sense”
6. Stewart had a concurring opinion that we’re not provided with
7. Black, concurring:
a. 4th doesn’t contain a provision explicitly prohibiting use of wrongfully seized evidence, so on its
own it wouldn’t be enough to create an exclusionary rule (for either federal or state courts – Black
is for full incorporation of the B. of Rights)
b. the 4th COMBINED with the 5th not only leads to but requires the exclusionary rule
8. Douglas, concurring
a. Wolf v CO robbed 4th of much of its meaning – without the exclusionary rule, the 4th amendment
is just “a dead letter”
9. Harlan for the dissent, with Frankfurter and Whittaker joining in:
a. Judicial restraint!
b. Doesn’t directly follow that just b/c principle of privacy underlying the 4th was applied to the
states through the 14th, all other configurations of the 4th relating to federal proceedings need also
be applied
c. Wolf said not that the 4th itself applied to the states, but that its underlying principle of privacy
applied
d. Exclusionary rule is just a remedy, not a part of the actual prohibition
 60

e. True that some states have the rule now, but court should not be concerned with the desirability of
the rule but with whether states are constitutionally free to have or not have it as they please
f. “it makes good sense” – who cares! The court doesn’t have the right to impose remedies based on
its personal notion of what feels right and what doesn’t
g. [points out that the majority agree about the judgment – they want an exclusionary rule – but can’t
agree on a basic rationale for it]
10. Key phrase: Exclusionary rule: evidence obtained through unconstitutional search and seizure is
inadmissible in court
11. Other key themes: Incorporation of the Bill of Rights through the 14th/ does the BoR apply to the states?
See Gideon write-up, section 9, for more detail
12. Overturned (basically): Wolf v. Colorado

Gideon v. Wainwright (1963)

1. Gideon v. Wainwright
2. Constitutional Limits on Criminal Process
a. Established the right to council for indigent defendants in a criminal trial
3. Decided March 18th, 1963
4. Unanimous
5. Black delivered opinion, with Goldberg, Stewart, Brennan, White, and Warren joining
a. Accept Betts v. Brady assumption that any provision of the BoR that is fundamental to a fair trial
is made obligatory upon the states by the 14th am
b. Find that the 6th am’s guarantee of council in all criminal prosecutions is in fact one of these rights
c. Claim this decision is simply returning to older precedents that established to create a fair justice
decision, rather than breaking new ground
d. Fair trial = impartial tribunal where all defendants stand equal before the law – this cannot be
achieved if a poor man accused of a crime has to “face his accusers without a lawyer to assist him”
e. Quotes Powell v. AL on the importance of having proper legal representation
6. Douglas, concurring:
a. Rights incorporated from the BoR through the 14th are NOT watered down versions of the BoR
7. Clark, concurring:
a. Constitution makes no distinction between capital and non-capital cases – deprivation of life and
liberty both equally require due process
b. Therefore need council guaranteed in ALL types of criminal cases
8. Harlan, concurring:
a. Agrees with overruling Betts, but wants to give it “more respectful burial”
b. Thinks should apply to the states b/c guarantee to counsel is “implicit in the concept of ordered
liberty” and thus valid against the states, BUT
c. This does NOT mean that entire body of federal law automatically carried over and applied to the
states
d. NOT saying the 14th incorporates the 6th amendment, rather that the concept in the 6th is necessary
for ordered liberty and thus is applied through the 14th
9. Key themes: incorporation of the Bill of Rights – direct incorporation, are the rights a watered down
version when applied to the states, is the amendment itself being directly applied or is it rather that a
principle contained/embodied in the amendment is crucial to “ordered liberty” and is therefore applicable to
the states
10. Overturned: Betts v. Brady

***

Chi-Chi Hsieh hsieh2@fas

Wed. December 1—lecture
Theme: The emergence of incorporation and federalism in Warren Court criminal justice decisions

Cases:
Mapp v. OH (1961)
Overruled Frankfurter’s opinion in Wolf v. Colorado
 61

Fruits of the poisonous tree doctrine: everything from that “branch” is excluded
Clark’s opinion assumed that without an exclusionary rule, police will show misconduct
Before Mapp, “silver platter doctrine” prevailed
Fed prosecutors who acquired illegally seized evidence gave them to state prosecutors,
who could then use it in court

Mapp raised the issue of the Supreme Court’s control over state criminal justice procedures
BRENNAN’s Selective Incorporation doctrine

Gideon v. Wainwright (1963)

BLACK’s triumph
Applies constitutional right to trial by counsel to all criminal cases
Here, Black uses selective incorporation for pragmatic reasons
Discusses the 6th Amend through the 14th’s application to states

Fay v. Noya (1963)

SC makes habeas corpus available to state criminal courts
Habeas corpus allows for judicial review
Brennan said this case greatly expands the jurisdiction of the Courts
Opened up a vast vein of testing the constitutionality of state criminal convictions because it could go to a
federal judge
Served as a procedural precondition for transforming state criminal procedure
---
v. California:
• 4th Amendment does apply to state through 14th amendment,
• logic of Frankfurter’s position – fatal flaw: the only real remedy w/ any chance of deterring the police = fruits of
an illegal seizure cannot be used in court – so police do not derive any benefit from search
• By Mapp v Ohio (1961): Justice Clarke switches & creates 5-4 maj in favor of overruling Wolfe v Colorado:
4th amend requires that states exclude illegally obtained evidence
• In fed courts, illegally seized evid = not admissible, but they can hand it off to the state courts
• Silver platter doctrine: loophole - fed prosecutors who obtain illegally obtained evid could hand it over to
their friends on a “silver platter” – they could admit it into state court – mocks SC
• more than ½ states have exclusionary rule  movement in favor of it
• no other remedy comes close to deterring police misconduct
Mapp v Ohio:
• idea of overruling Wolfe v Colorado (old Frankfurter dec, 1949) – not even originally mentioned; case of rights
v. remedy: rights violated, but only redressed cin certain ways – did not ban illegal evidence
• Justice Brennan introduces it in the conference; eventually decided to overrule
• What is the principle for striking down state procedure:
- Black’s is easy: whatever applied to fed courts applies to state courts through 14th Amend – total
incorportation – but it never prevailed
- Brennan: selective incorporation – SC would apply most everything in exactly the same way through 14th
amend due process clause – but some things not included because they’re not that important: ex)
constitutional req for a jury trial in civil trials where more than $100 is involved
Gideon v. Wainwright
• Victory for Black who wrote maj opinion; crushing defeat for Frankfurter
• applies const right to trial by counsel not just for capital cases (Alabama v. Powell) – but for all cases
• Bets v Brady – Frankfurter affirmed this, saying that counsel only req’d in capital, not all cases
• Black wrote eloquent dissents in these early crim procedure cases
• Black had to write a cleaned up version of his philosophy to obtain a majority
• (Horwitz 94), (vol: 74): on incorporation
• Justice Harlan: even 1st Amed didn’t apply w/ same umph to states; all of the amendments get watered down as
applied to states (Roth & Gideon)
• Back & forth arguing ab formula bt Harlan & Black
• What’s significance of how 14th Amend should be applied?
• Justices of the WC came of age during the New Deal – criticized federalism falong 2 classic fault lines:
 62

1) Economics: inefficiency of federalist system which balkanized the economy, race to the bottom in which
industry moves to states w/ fewer regulations to prot pub interest; or w/ fewer labor laws, wage laws. Only
became reversed thru nat’l economic policy. Decentralized economy treated as anachronism from 18th
century during this era.
2) Race: protect slavery, then white supremacy
Was federalism justly under attack?
• need wage & hour laws to prevent a race to the bottom that a nat’l uniform law under IC law, was aspired to
during New Deal
• assumption after 14th amend that states had failed to prot rightsso fed gov had to step in to protect
• 1937 Justices = committed to federalism
• In crim cases, esp South cases – clear that state courts hadn’t taken Justice into consideration
• Before 1937: crim law considered state domain
• Faye v Anoia: habeus corpus,
• SC only looks at a handful of cases from states on direct review: so most crim dec = affirmed in 1 state court
• Habeus corpus – allow for judicial review = “bring body into court”; cannot hold suspect  criminal can appeal
to lower federal court
• Faye v Anoia opened up a vast vein of testing constitutionality state crim convictions – not just depend on using
limited res of SC, now possible to bring fed judiciary into the fray
• Procedural precondition for SC dec to thoroughly transform state court dec

Fri. Dec. 3—lecture

Theme: Overview of federalism and incorporation

Incorporation
After Brennan’s retirement, there has been no impetus to continue incorporation
Last act of selective incorp occurred on last day of Warren Court

Federalism:
Liberal idea of federalism before 1937:
Brandeis & Progressive thought: states could be independent isolated labs for social progress
The New Deal shifted all discussion away from localities
Rehnquist Court’s most important structural change is rolling back the 1937 structure of federalist power.

Frankfurter & Federalism:

Didn’t believe in national standards in criminal justice system
Horwitz thinks this allowed states to engage in the “third degree”

Sample cases: Miranda v. AZ, Terry v. OH

Terry v. OH (1968)
The case came five months before the presidential election, in the midst of Nixon’s campaign against the
Court
Warren delivers the decision that is a clear concession to the “peace forces”
Warren’s unofficial comment: “We needed to give one to the police”
Douglas criticizes that the decision doesn’t make sense
Regarded by historians as a shift away from the Warren Court

Relation to bigger picture:

Was the Court trying to regain political capital here? With Nixon running a blatant campaign against the
Court and its recent criminal justice decisions, did the Court feel pressured to respond to the public outcry?
Also illustrates how the justices’ ideologies are influence / shaped by their experiences. Warren’s
experience as a district attorney clearly plays out in the criminal justice decisions.

Pointer v. Texas (1965)

Constitutional Limits on Criminal Process
 63

Sixth Amendment right to confront witnesses is a fundamental right essential to a fair trial & the 14th makes
it applicable to states

Decision vote: It looks unanimous, but with 3 concurring opinions

Black delivers, Harlan, Goldberg and Stewart each concur separately

BLACK: Uses Gideon to illustrate that part of the 6th has already been incorporated
“right of confrontation and cross-examination is an essential and fundamental requirement for the
kind of fair trial which is this country’s constitutional goal”

HARLAN: Argues for federalism

Disagrees with incorporation bc subordinates state differences to Federal Bill of Rights and “subjects state
legal processes to federal judicial authority”
Reverses because “a right of confrontation is implicit in the concept of ordered liberty”

STEWART: prefers decision through 14th’s due process clause

GOLDBERG: Supports absorption of rights and holding the states to the same standard as the federal govt
Disagrees with Harlan

The case is not groundbreaking in any way. It highlights that there is disagreement among the court about the
application of the Bill of Rights to states. Although they all reached the same decision, they did so from different
viewpoints of incorporation.

Miranda v. Arizona (1966)

Constitutional Limits on Criminal Process
Famous decision concerning coerced / involuntary confessions
Most controversial decision of Warren Court bc public outcry over setting criminal free
Possibility that the court was legislating instead of interpreting the Constitution
Focus on divide between affluence and poor
5:4 decision
Warren delivers
Clark, Harlan, White, Stewart dissent (underlined wrote dissenting opinions)

WARREN: Privilege against self-incrimination requires procedural safeguards to inform accused of right to silence
Precedents like Malloy and Escobedo establish the applicability of the full force of privilege against self-
incrimination to States

CLARK dissenting:
Favored keeping the existing rule of “totality of circumstances evidencing an involuntary admission of
guilt”
Consider each case by the “totality of circumstances” rule

HARLAN dissenting:
“Thrust of new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately
to discourage any confession at all”
No adequate basis for extending 5th’s privilege against self-incrimination to the police station

Consequences of Miranda
Police were horrified, but no court decision moved so quickly into popular consciousness

***
Angela Makabali makabali@fas
Terry v. Ohio (1968)
 64

1. Terry v. OH
2. “Constitutional limits on Criminal Process”
How is the case important within the context of this section? In the historical context of the increase in
crime in the late 60s, Horowitz considers this a clear concession to Nixon’s critique of the Warren Court. It
is also the only one of the cases not decided in favor of the defendant. This was also about evidence and
the exclusionary rule, which the WC ruled in favor of to remedy the police usage of the third degree, to
hold local police to federal standards, and to eliminate racial harassment by police officers or in the court
room.
3. Date decided: 1968
4. Decision vote (i.e. 5-4): didn’t say, but assuming it’s 8-1
5. Justice writing opinion: Warren
Reasoning behind opinion: There are two issues constitutionality of “stop and frisk” according to the 4th, and if
stopped, admissibility of evidence. Warren says that in the context of “stop and frisk,” the judiciary cannot
intervene w/the day to day practices of the police. (Counter to everything else they said about criminal procedure in
the cases we read.) Warren says that the Court approaches the issue of stop and frisk “mindful of the limitations of
the judicial function in controlling the myriad daily situations” where police interact w/citizens. However, he says
that the “rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can
never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent
crime.” So, if objects are seized from stop and frisk, they are admissible
6. Concurring justice(s): none
a. Reasoning behind opinion(s)
7. Dissenting justice(s): Douglas writes that that “the infringement on personal liberty of any ‘seizure’ of a person
can only be reasonable if we require the police to posses ‘probable cause’ before they seize him, which cannot be
based on an officer’s “mere inkling, but requires the presence of facts w/in the officer’s personal knowledge which
would convince a reasonable man that the person seized has committed or is going to commit a crime.” Too much
police power is “a long step down the totalitarian path.”
8. Key themes and key phrases that resulted
9. Key tests that were established: “an officer could frisk when he observes ‘unusual conduct’ which leads him to
conclude that ‘criminal activity may be afoot.’” (Kamisar).
10. Previous Supreme Court decision that were overturned

Kamisar, “The Warren Court and Criminal Justice,” pp. 2-5

• The “revolutionary” years of the Warren Court in criminal procedure were actually from ’61-67. In the
closing years of the WC era (1967-68), there was shift in the WC’s previously revolutionary/progressive
jurisprudence involving criminal procedure.
• This was due to external influences, such as the social upheaval, i.e. Watts riot, prostests at colleges,
increasing crime, assassinations, which caused members of Congress and Nixon to strongly criticize the
Court in his campaign.
• Terry v. Ohio was proof of the dramatic shift in attitude caused by the social context, and had Burger made
such a decision in ’71, lower courts would have criticized him for not leaving them with a guideline for
dealing with “stop and frisk” cases since the standards outlined in Terry were so “spongy,” giving the
police too much leeway.
• This fits in with the criminal procedure cases because it organizes them into a progressive and more
conservative era. In the early 60’s, the WC’s rulings in Mapp, Gideon, Pointer, and Miranda, protected the
defendant’s rights.
• This fits in with the course because the WC’s broader look at the social context of crime and the way in
which police were treating citizens they arrested is in line with their primarily liberal jurisprudence.

Powe, The Warren Court, pp. 104-09 , 193(Criminal Procedure)-199

• The court handed down some very important criminal procedure cases in its first four years.
o Irvine v. CA: Long Beach police didn’t get a warrant, but inserted a wiretap into Irvine’s house
anyway. Court said this was a “flagrant, deliberate, and persistent” violation of the 4th
Amendment, but that such evidence was inadmissible ONLY if there was “coercion, violence, and
brutality to the person.” The justices, however, weren’t happy.
o Rochin v. CA: defendant swallowed heroin to prevent the police from acquiring it, so the police
pumped his stomach.
 65

o Griffin v. IL: the court pronounced a fee on procuring court transcripts unconstitutional b/c it
prevented indigents from the right to appeal.
o Mallory v. US: confession in Washington DC took an hr and a half, and this was deemed
unconstitutional b/c it violated due process (prompt arraignment); court was able to apply the Bill
of Rights b/c DC is under federal law.
• These cases were important because they brought the issue of incorporation and federalism back into the
spotlight, and they also began the battle between the court and the police.
• From 1957-1961, the court decided cases that the defense lost, but those were dwarfed by Mapp v. OH,
which incorporated the federal exclusionary rule as part of the 5th Am. Frankfurter lost!
o This overruled Wolf (1949), which separated the exclusionary rule from the 4th Am.
o It also caused ½ of the states to change their criminal procedure laws…Issue of federalism.
• Warren’s background as an ex-DA comes into play here. He ruled against Irvine b/c he “had a blind spot
for those involved in vice.”
• In its later years,
• The points addressed above fit into the criminal procedure cases we’ve studied because it again talks about
the court playing a major role in setting the standards of everyday police practices. Powe argues that cases
like Irvine and Rochin are foreshadowings of the revolution in criminal justice that the WC will spearhead
in the early 60s, starting with Mapp.
• The points above fit into the course because we’re looking again at the Black-Frankfurter debate about
incorporation, of which Frankfurt won the first battle, but Black came out with more points (although they
ended up only adapting some amendments in the Bill of Rights, so it was selective incorporation.) In
addition, Warren’s leadership style as a chief justice is being addressed in this reading.

Mon. December 6—lecture

”Federalism/Constitutional doctrine debate in the Reapportionment Cases (RC)”

Historical context of RC
- as the population shifted from rural to urban, state legislators refused to redraw election districts, even if it
was in the law (i.e. TN state courts)
- in ’61, RFK really pushed Cox to pursue the equal protection litigation, so he filed an amicus brief; but
Cox denied that he had committed to a battle that would end in the one-vote one-man outcome, which was
deemed a right under equal protection in the 14th, because voting was a central aspect of democratic
procedure.
- also, in the South, Black voters had been kept from the polls via the poll tax, literacy tests, and sometimes
through malapporitionment

Federalism: Federalism is a question of how much localization and decentralization should be permitted as
opposed to the centralization of national power. The New Deal justices thought that Federalism was
inefficient in an increasingly interdependent global economy. This is relevant to the Reapportionment
Cases because the federal branch of government was, in the eyes of states’ rights folk, treading on the
jurisdiction of the state when it tried to make a federal standard for voting districts.

Constitutional doctrine: Based on the federalism debate, the Court had to address the issue of whether
voting reapportionment was even justiciable, (it said yes in Baker v. Carr) because states claimed that it
was a political question fit to be answered Congress, and not a non-elected body of 9 men. Baker v. Carr
also brings up “balance of power.” In Reynold v. Simms, the court ruled that the standard of constitutional
districting be one man one vote.

How do these points fit into the broader themes of the course as a whole?

The debate on constitutional doctrine brings up questions such as “what is the meaning of democracy?”
Think of Horowitz’s long spiel on thick (substantive) vs. thin (procedural) democracy.
- thick: democracy requires social equality, i.e. right not to be poor, the right to education, more
positive rights or claims on the state, like welfare, to ensure the integrity of procedural equality,
i.e. voting…YAY SOCIALISM! (This is what Mort agrees with.)
 66

- thin: Schumpeter takes an economic view that all you need for democracy are “free and fair”
elections. This doesn’t take into account power differentials.

Also, the debate here is over the proper role of the court, and whether or not judicial activism is a legitimate
use of the court’s power.

How do broad themes of the lecture fit into the course as a whole?
Legitimate use of court’s power is relevant because liberal judges critiqued the Lochner court for
Lochnerizing, which left future liberal courts, like the Warren Court, to be very wary of using their position to
support economic theories, etc.
Also, democracy is important because Horowitz has argued all year that the WC was the last court to really
make progress under the banner of democracy = social justice.

Baker v. Carr (1962)

1. Baker v. Carr (1962)
2. “Reapportionment, Elections, and Democratic Theory”
a. This case was important because it opened the door for the Supreme Court to even engage in regulation
of the democratic process and said that voting was a political right.
4. Decision: 7-2
5. Justice writing opinion: Brennan
Reasoning behind opinion: Appelants claimed that the debasement of their votes via malapportionment is a violation
of equal protection. Brennan reversed decision of the District court that “political questions were not justiciable.”
He reasons that seeking political rights is not a political question, so it is justiciable.
6. Concurring justice(s): none
a. Reasoning behind opinion(s)
7. Dissenting justice(s): Frankfurter, joined by Harlan, says that this decision gave the court too much power “to
devise what should constitue the proper composition of the legislatures of the fifty States.” According to
Frankfurter, apportionment plans should be left to the state and subject to rational basis.
8. Key themes and key phrases that resulted: “debasement of votes,” “right to vote”
9. Key tests that were established: “seeking political rights are not political questions,” key for justiciability, or
whether the Court had any jurisdiction over the election process
10. Previous Supreme Court decision that were overturned: none

Reynolds v. Sims (1964)

“Reapportionment, Elections, and Democratic Theory”
This case was important because it was the first case to set a standard for equal apportionment, and also
because it reiterated the Warren Court’s role as a protector of democratic procedure. Also, the opinions and dissents
foreground the important issue of “tyranny of the majority” in a representative democracy.
Decision: 8-1
Justice writing opinion: Warren
Reasoning behind opinion: Voting is a bedrock of representative government. “The right of suffrage is a
fundamental matter in a free and democratic society.” He uses the language of fundamental law to justify why fair
procedures are necessary for fair and legitimate government. (Think of the Carolene Products footnote 4 as to what
kinds of rights deserve strict scrutiny.) Equal protection “requires that a state make an honest and good faith effort
to construct districts, in both houses of its legislature, as nearly of equal population as its practicable. Interests nor
trees vote. People do. Even if sate policy is rational, population is submerged as the controlling consideration,
6. Concurring justice(s): none
a. Reasoning behind opinion(s)
7. Dissenting justice(s): Harlan, who writes that the Court was too vague because it wanted states to
“indiscriminately district” according to number while realizing that “indiscriminate districting is an invitation to
partisan gerrymandering.” Also legislators can represent electors only by speaking for their interests, which do not
reflect the place in which the electors live.
Stewart, joined by Clack also writes that adapting a federal rule for election forecloses the option of states
experimenting with “progressive innovation in the design of its democratic institutions.” He says that
reapportionment plans must be rational in light of the states needs, and that it must not permit the systematic
frustration of the will of a majority of the electorate of the State.
 67

8. Key themes and key phrases that resulted: “debasement of votes,” “voting is a fundamental right”
9. Key tests that were established: Equal, or as equal as possible, population per district for an apportionment plan.
10. Previous Supreme Court decisions that were overturned: none

***

Yui Hirohashi hirohas@fas

Powe, The Warren Court, pp. 379-430, 443(“The cases discussed…”)-444
 Gideon v. Wainwright- incorporated the 6th amendment right into the 14th amendment right against
state abridgements
 Was the last purely Southern case---the cases to follow would have an effect on Northern procedures and
would be far more controversial
 By mandating that the state provide lawyers, the Court could create a frontline agency for supervising
police practices that would be more effective than the exclusionary rule
 Escobedo v. Illinois- gave right to lawyer at interrogation because Court doctrine guarantees right to
counsel attached at a “critical stage”
 Court saw it as necessary safeguard against the possibility of extorted confessions
 Miranda v. Arizona- required a reading of an accused’s rights prior to any questioning
 Would force all states to change their procedures and a majority of states asked the Court to slow down
 Was about securing justice for both the poor and the rich--- without Miranda, the Court felt that the poor
would be at a disadvantage because they probably had less knowledge than the rich
 Was a compromise between the “totality of circumstances” rule and Escobedo’s implication that there
could be no interrogation unless counsel was present
 The Court faced increasing opposition that the Court was “handcuffing” the police
 Schmerber v. California decided that self-incrimination didn’t include blood or hair samples,
handwriting, told to stand in lineup, etc.
 The Court ruled that undercover agents and informants were constitutional
 The Court saw to it that the accused would have the right to have a lawyer present when having to
stand in a lineup
 Terry v. Ohio was one of the more conservative decisions the Court made in which the Court allowed
for police to stop and frisk suspicious individuals---with rising crime and opposition, the political
tide changing towards one that prioritized “law and order” and Court forced to follow
 Court decided on controlling of media---the Court concerned itself with guaranteeing individuals a
right to a fair trial and one of the ways to do this is keeping media out
 Habeas corpus allowed prisoners to challenge their unlawful custody citing an unfair trial
 During this time, because so many new interpretations of the criminal justice system were made, the
Court was forced to come up with a formula in deciding which ones would apply retroactively and
which ones wouldn’t
 Those rules which were created to protect the determination of innocence and which would not lead to a
great exodus of prisoners would be made retroactive
 The Court ruled that a conviction where “dirty” evidence used in trial would not be overturned if the
accused was plenty guilty otherwise
 Importance within the section: This reading was just a description of some of the cases that were
discussed in the section, Gideon, Miranda, and Terry.
 Importance within the whole course: The reforming of the criminal procedures was a way in which
the Warren Court tried to achieve equality in the law for all people, even those without resources.
This attempt by the Court is related to the spirit of Footnote Four, which directed the Supreme Court
to protect minorities and those weak within the political system.

***

Week 12
Milena Andzelm andzelm@fas
 68

Wed. Dec. 8—lecture

**In this lecture, Professor Horwitz goes through many of the major reapportionment cases, and emphasizes that
many of these “radical” decisions were made on the idea of a living constitution. He starts though, with some
general ideas about history**

1. Perspectives on History: Social Sciences prefer everything to fit to a model; Historians prefer to look at specific
events – Horwitz prefers the 2nd perspective, not looking at the Warren Court as an anomaly, as that is not a
good way to understand it

2. Reapportionment Cases: Where the Warren Court talks most about democracy, their foundational value: we can
understand these as upholding the ideals of democracy as everyone is individually equal (not majority rule) and
the idea of an evolving living constitution (Horwitz opinion)

3. Baker v Carr, 1962: Basic point is that it said the Supreme Court was not barred from tackling Political
Questions (restricted the barrier)
- Horwitz thought it was a brilliant opinion by Brennan, narrow to keep Clark and Stewart

4. Reynolds v Simms, 1964: was 7-2, Basic point is that it decided on an “extreme” vote = one person, one vote in
both houses
- It was unexpected that the Supreme Court would go that far
- People tried to argue on the Federal Analogy (i.e. Senate not based on population, why should states
be?) but Warren rejects this, saying it was only a way to get all the states to come together (Horwitz
agrees with Warren)
- The 2nd house, modeled like England’s House of Lords, was because the framers feared the excesses of
majority rule/democracy, as it could turn into mob rule – this has changed due to the idea of a living
constitution
- Key points of Warren’s opinion: dilution of vote is like entire prohibition of voting. Representatives
“represent people, not trees”

5. Harper v Virginia, 1966: Basic point is that the Virginia Poll Tax was unconstitutional; overturned Breedlove v
Suttles, 1959
- Douglas wrote the majority opinion – difficult for him as Black (with his biblical fervor, per Horwitz)
dissented, and FDR and Black were Douglas’ two great father figures, and Douglas often deferred to
Black
- Douglas’ main point: changing conception of Equal Protection; cites the Plessy to Brown shift
- Black’s disagreement: insists he did not agree with the changing Equal Protection idea in Brown in
1954

Lucas v. Colorado (1964)

1. Lucas v. Colorado
2. Reapportionment, Elections, and Democratic Theory
a. The case took the idea of equality one step further, out of the hands of the majority and to the individual - a
majority rule vote in Colorado to have unequal voting was struck down by the Court
3. Decided June 15, 1964
4. Vote 5-4? Not in my notes, sorry guys
5. Majority by Warren
a. Reasoning behind opinion:
- The main point is really on pg 784: “An individual’s constitutionally protected right to cast an equally weighted
vote cannot be denied even by a vote of a majority of a State’s electorate, if the apportionment scheme adopted by
the voters fails to measure up to the requirements of the Equal Protection Clause.” Basically majority is not enough.
- Also, the fact that this vote takes into account geographical, historical, economic, etc considerations is not enough
to outweigh the fact that it is so disproportionate population wise
-Also, “reliance on the so-called federal analogy is factually as well as constitutionally without merit.” – As said in
the notes above, Warren argued against this analogy
6. Dissent by Clark
a. Reasoning behind opinion:
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- Clark reasons on federalist grounds, making the analogy that as the framers made the federal arrangement of the
Senate (which is approved), then “Colorado, by an overwhelming vote, has likewise written the organization of its
legislative body into its Constitution, and our dual federalism requires that we give it recognition.” (786)s
- Colorado has made an argument that is clearly not arbitrary, as it was by a vote. And it is reasonable, though
“peculiar to the State” which is ok. The federal court should not overstep its bounds.
7.Dissent by Stewart, (Joined by Clark)
a. Reasoning behind opinion:
- Stewart believes that “Nobody’s right to vote has been denied” (786).
- He thinks the Court is wrong in how they use the EP clause to “limit each sovereign State’s freedom to establish
appropriate electoral constituencies from which representatives to the State’s bicameral legislative assembly are to
be chosen.”
-He also does not agree that equal representation for equal numbers is not a fundamental necessity
-There is nothing in history that supports the Court’s equal vote rule, and so Stewart believes that “What the Court
has done is to convert a particular political philosophy into a constitutional rule” and disregard the individuality of
the States. (787)
8. No real Key phrases, but the theme is that “one person, one vote” is the most important thing is carried through
9. I guess Warren finds that other factors do not balance out disproportions in population representation....but really
this is just a debate of preserving federalism and state autonomy vs. maintaining the ideal of equal votes within both
of the states’ legislatures.
10. No cases overturned

Harper v. West Virginia Bd. of Elections (1966)

1. Harper v Virginia
2. Reapportionment, Elections, and Democratic Theory
a. This case overturned a case 7 years earlier and declared the Poll Tax unconstitutional – goes with an evolving
concept of what is now Equal protection (now includes not having a Poll Tax, before only just the right to vote)
3. Decided March 24, 1964
4. Vote 6-3? Not in my notes either...
5. Majority by Douglas
a. Reasoning behind opinion: in several steps:
- Once given the right to vote in state elections (not expressly in Constitution), it’s under the EP Clause of the 14th
Amendment (cannot discriminate)
- “Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” (790) – thus the
poll tax “invidiously discriminates”
- The State is thus limited in fixing qualifications when it comes to voting – wealth here is related to race, neither
can be used to discriminate because neither affects your ability to participate in the political process
- “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” (791) – idea
of a living constitution, why poll tax now invalid – justifies this with the Plessy to Brown switch
6. Dissent by Black
a. Reasoning behind opinion:
- Black dissents from the Court giving the EP clause a “new meaning which it believes represents a better
governmental policy.” then in Breedlove (792)
- Just because a law distinguishes different groups doesn’t mean it automatically violates the EP clause
-He thinks the Court is using the “old ‘natural-law-due-process formula’” using Due Process to change the
constitution, which Black does not support
- Thinks the idea of a living of a Constitution attacks the value of the Constitution, and represents the Court trying to
choose a new political theory, different from the framers
-Note also Footnote 1, where Black insists that his Brown decision was purely to outlaw racial discrimination, not
discrimination prohibited by the EP Clause
7. Dissent by Harlan (Stewart Joins)
a. Reasoning behind opinion:
- The Court is overstepping its bounds: it is the States or the “federal political process” that should have eliminated
the poll tax
- EP Clause means no arbitrarily different treatment of people, not that all people must be treated equally despite
differing circumstances: Harlan says the Court cannot impose “unrestrained egalitarianism” (794)
- The Court is using a very subjective approach (voting is “precious” for the majority)
 70

- There is a rational basis for the poll tax, which the Majority ignores
8. Key theme is the living constitution (Douglas) vs. trying to keep the court from making new political
theories/governmental policies (Black)
9. Harlan may be trying to employ the rational basis test
10. Overturned Breedlove v Suttles, 1959

Brennan, “My Encounters with the Constitution”

1. The main point here is Justice Brennan voicing his support for a living, interpreted constitution versus only a strict
contructionalist reading. Arguments he gives are:
- Following “the intentions of the framers” is “arrogance cloaked in humility” (850) – we pretend humility in
following only the framer’s vision, but are arrogant to think we can accurately interpret this vision to apply to
contemporary problems
- It is not clear whose intention is relevant (the states, the drafters, etc), nor is the “original intention” really
possible to perceive as “our distance of two centuries cannot but work as a prism refracting all we perceive”
- While “intent” readings is justified as depoliticizing the judicial system, it really isn’t as it tends to ignore social
progress and thus new rights gained
- Brennan’s approach is “interpreting the text must account for the existence of these substantive value choices
(that the framers made), and must accept the ambiguity inherent in the effort to apply them to modern
circumstances.” (851)
- Brennan believes the Constitution should be looked at as what does the “text mean in our time?” (852)
- He believes the constitution was made to develop; it was not “intended to preserve a preexisting society but to
make a new one.” He cites the Civil War Amendments as an example of the development of the constitution.

2. The reapportionment cases (most particularly the poll tax) debated whether the Equal Protection clause could
evolve, and if this “interpretation” didn’t make the Court overstep its bounds.

3. This is part of a general theme of constitutional interpretation in the course.

Levinson, Constitutional Faith, pp.54-89 (excerpts)

1. The main point here is that the Constitution must take into account the heterogeneity of society. Levinson really
considers the views of three main people: Oliver Wendell Holmes, Felix Frankfurter, and Alexander Bickel.
- Holmes: Thought government reflected power, “only moral content of the law lies in the extent to which law
reflects the moral notions of the dominant group,” (853)
- Judges were “good bureacrats” – they separated their private opinions on whether something was good or
not, and went instead with the will of the majority.
- This was very popular in his dissent in Lochner, but also had an aspect of saying tyranny was acceptable,
as long as it was the majority will. Perhaps law and the Constitution deserve more respect?
- Frankfurter: Also supported self-restraint, and separating a justice’s “private judgment” from “public notions –
Levinson thinks this split has replaced “universal recognition of what constitutes common morality and the common
good.” (855)
- The author thinks this view, not taking into account that people with different views can create dangerous laws, or
a view of “pure proceduralism,” has eliminated the substantive content of the original constitution.
-For the author, “Majority rule is simply not the same thing as constitutionalism.” – one must limit majority rule to
protect minorities
-Bickel: was supposed to resolve the views above with morality by naming “fundamental values” not actually in the
Constitution
- After the Warren Court’s use of “fundamental values”, he reconsidered, and said that good and evil come from
“the secular religion of the American republic.”
- He supports life under the Constitution determining “uniform rule” as socially necessary, and as the Supreme
Court helping establish that, despite “fundamentally differing views” among citizens
- are these differences fundamental if they can be fit into social norms? The author argues that there are
fundamentally different values in politics which have led to “contemporary uncertainty”
-Bickel now tries to argue that changing moral conceptions cannot happen to quickly, or the legal order will
destabilize – the author thinks this is conservative
-The author emphasizes reverence for the Constitution because “there may be no other basis for uniting a nation of
so many disparate groups.” (856)
 71

-Thus, the Constitutional interpretation cannot ignore but rather must take into account all these differences and
influences of “ordinary life.”

2. Again, this is a discussion of constitutional interpretation and the varying points of justices.

3. This also relates to other course material where we discussed if the Court was aware of what was going on in the
U.S. regarding Civil Rights, etc (ex, the NYT v Sullivan case

***

Anar Shah adshah@fas

Fri. Dec. 10—lecture
1. In this lecture, Prof. Horwitz discussed the Justices’ ideas regarding the changeability of the Constitution.
Specifically, he mentioned Holmes, who said that the words of the Constitution call into life a “Being,” and that they
must consider all experience, not just words on a page; and Hughes, who said that what the Constitution meant to
the Founders, it must continue to mean: Marshall said it must be adapted to “various crises.” All the Brown Justices
believed in the idea of a Living Constitution.
Prof. Horwitz also discussed conceptions of democracy, which only became a positive ideal in the 20th century. The
litmus test of this was the development of universal suffrage – it was now desirable to give everyone a say in the
government.
He also discussed the Carolene Products footnote with regard to the Reapportionment cases, especially the second
paragraph’s underlying idea that if the Court is to defer to legislatures on social and economic policies, it must be
necessary that that legislature is elected legitimately – therefore, laws that invade or distort the political process need
to receive strict scrutiny from the Court.

2. The idea of the Living Constitution is obviously a broader theme of the course. Debates about the degree to
which the language of the Constitution may be interpreted occur in many of the cases we have studied. This idea of
change applies to the Reapportionment cases not directly through Constitutional change but through the reversal of
the Doctrine of Political Questions, which previously kept the Court from interfering in certain cases either because
the powers were given to another branch or because there didn’t seem to be objective standards by which to judge.
With Baker v. Carr, however, the Court decided that districting challenges can have objective standards (Brennan)
and therefore the Court can hear such cases.

3. The two sides to this debate are originalism v. the Living Constitution. Horwitz falls in the camp of those who
believe in the necessity of evolving the Constitution as the country evolves.

Horwitz, “The Constitution of Change”

In this short article, Horwitz traces the different conceptions of constitutional change over time, and his main point
is that there has been a progressive movement from a narrow to a more broadened interpretation of the original
constitutional meanings to reflect the changing circumstances of human affairs

Intro:
After Lochner, progressives wanted to expand constitutional meanings. Woodrow Wilson: “government is not a
machine, but a living thing”. This was a sharp departure from static originalism (think of Justice Black).

Brandeis/ Pound:
Earliest progressives saw “changing circumstances” as justification for a changing constitution. This justification
was not the broadest departure from originalist constitutional theory. Nevertheless it was a new, important
conceptualization for legal thinkers.

In the famous Brandeis Brief (Muller v. Oregon) Brandeis employed sociological and economic data to elaborate the
on idea of “changed circumstances”. His other famous opinion was his dissent in Olmstead v. US (wiretapping case)
which involved the 4th amendment “search and seizure” clause – Brandeis thought that principles need to be able to
be widely applicable according to changing times
 72

Pound formalized Brandeis’ ideas as “law in action” vs. “law in books”. Pound thought that the government
operated under a system of “mechanical jurisprudence” and agreed that cases like Lochner and Plessy should be
overruled because they have been shown, over time, to have been based on untrue social presumptions

Cardozo:
Broadened the Brandeis/Pound vision of a changing constitution to include that the content and significance of the
constitution can change over time. He was a critique of the narrow “changed circumstances” view and felt that
constitutional law itself can be considered as expounding. According to his view, the makers of the Constitution
could not have foreseen the status of law and society as it stands now, and thus did not intend for their words to have
had any exact meanings.

Course Implications: Changing constitutional interpretation was a major theme of the class, and the reaction to
Lochner precipitated future changes. The Supreme Court became more cognizant of changing social circumstances,
and many of the decisions in the cases we read were related to differential theoretical conceptions of what the
original Constitutional makers had intended. Thanks to the liberal thinkers of the Warren Court, the idea of a “living
constitution” prevailed for the most part.

McKay, Reapportionment: The Law and Politics of Equal Representation, pp.35-58

Key points: malapportionment is a fact, it works to the disadvantage of the groups underrepresented in state
legislatures, and correction is not available through the legislatures themselves because too many members are
beneficiaries of the ever worsening-situation.

- 1787 conceptions of federalism were a product of necessity and, from the beginning, were flexible. The
most important emergence from the making of the constitution was in its “constitution-ness” – thus states
were set up to lose any power they may have wanted to gain unless they were proactive about it
- McKay thinks that state governments have lost power and influence primarily because the people of the
state have failed to exercise their own power and solve their own problems due to the misrepresentation of
its citizens in the state legislature. Thus the federal government has had to intercede.
- The inequality of voter population and is worsening, in part because the state legislators benefit from not
calling attention to it (they wouldn’t complain about over-representing their own voters)
- Urban interests are ironically more represented in national legislature
- Large amounts of urbanization have led to administrative chaos because the government units are
misallocated – nevertheless, state legislature haven’t been able to take corrective measures
- Malapportionment confers the power of veto upon majority action, but can also bestow minority groups
legislative power – this showed that (before the 1964 reapportionment cases) a voting majority could be
elected by less than 20% of the population
- The urban-suburban communities and low-population areas experience the greatest disadvantages of
malapportionment.
- Malapportionment is caused by state constitutional limitations and failure to reapportion as required.
- The difficult question for reapportionment is if the areas of growing population should be given additional
representation, or should areas of declining population be allowed to retain control? – Legislators are
purely interested in political survival, so it’s easier for them to just add more seats in the state legislature
rather than redistribute districts.
- The consequences of malapportionment as bringing harm to the individual voters was determined, as in
reapportionment cases included Baker v. Carr. However the SC did not take into account the other
consequences of malapportionment on groups of underrepresented voters. If they had, it would have lent
more evidence to the appropriateness of the constitutional decisions. Discrimination is an issue associated
with malapportionment, and additionally impairs effective relations between the state and local
governments within the state. State legislatures show lack of concern for resolving the conflicts between
urban and suburban groups.

***

Maria May mmay@fas

Post, Constitutional Domains (excerpts)
Ch 3
 73

Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment
Until 1980s, regulation of obscenity was viewed as a regulation of sex, meant to preserve community standards of
decency. The work of Catharine McKinnon and Andrea Dorkin revolutionized this by proposing that these laws
actually continued the oppression of women. They pose the question:
Will the First Amendment permit expression to be suppressed for the purpose of preventing this assault on the
"status' of women as a group?
Similar to questions posed by other minorities.
Result of a heterogeneous society made up of competitive groups.

Law in a Heterogeneous Society

Possible Legal Orders in a Heterogeneous Society
1. Assimilationism--Legal Sanctions enforce the cultural perspectives of the dominant group
When a society is homogenous, the law then expresses cultural norms. One example is Minersville School District
v. Gobitis (First flag salute case). Laws of this vein are often called Americanization.
2. Pluralism--Allow diverse groups to maintain their unique values
Sometimes viewed by legal scholars as “the struggle among self-interested groups for a scarce social resource
(politics)”. Affirmative value of diversity. Tries to allow for coexistence of many distinctive group identities and
practices. State neutrality, safeguards diversity, but values group identities over individual identities. Ex. Hate
Speech Law--Group's protection more important than individual's right to speech.
3. Individualism--Ignore group values and recognize only the rights of individuals.
Protects rights of individuals over groups.
Comparison of Pluralism v. Individualism: in Wisconsin v. Yoder, Supreme Court held that Amish families could
remove their children from school before the legal age of 16. This is an example of pluralism. Douglas dissented,
saying that children should have the protected right to break from the Amish Tradition. This is an example of
individualism.

Ch. 1
Theories of Constitutional Interpretation
Interpretation of Constitution is the job of judges.
They must choose a basis that makes their decisions legitimate
Possibility of having a Counter-Majoritarian role
Constitution is the highest Law.
Stare Decisis-Following Precedent, helps create stable and predictable rules, and secures the court's legitimacy.
Doctrinal Authority--Originalism or Textualism
Authority of Consent--Court is held accountable to contemporary concepts of value.
Authority of Ethos--The authority must be conceived as flowing from the "whole experience" of the nationhood.
Constitution loses its character as a specific, hard document. Rather, it serves a role that transcends time, a
fundamental framework. Responsive interpretation.
Conclusion: Constitutional Interpretation and Constitutional Culture
Whatever basis judges use, they cannot escape the responsibility of cultural articulation and judgment. They reveal
that national ethos and community, and "humanly meaningful authority" are at the core of our practice of
constitutional adjudication (awwwwwww).

Ch. 5
Between Democracy and Community: The Legal Constitution of Social Form
Constitutional Law regards democratic community in two interdependent forms of social organization: responsive
democracy and community.
Community means that it recognizes people as groups and that they have socially embedded behaviors.
Responsive Democracy is when they recognize people as autonomous and independent.
Community
Social Norms--Initially Transmitted and Continually Reaffirmed. Individual must respect and perpetuate social
identity.
Common Law rules; Deviates are shunned
Democracy
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Tension between Majoritarianism, and protecting certain rights to provide for minorites (maintaining autonomy).
Self-determination
Responsive Democracy focuses on the equality of individuals
Implies a public/private distinction--Freedom of Belief, Religion, Right to Privacy
Not a complete way to view people: People require socialization to be able to exercise their own autonomy.
Example of Tension between Community and Responsive Democracy: Should we allow flag burning?

Ch 7
Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse
Debate of whether first amendment protects individual autonomy or is rather aimed at a more collective goal:
creating a well informed public.
All citizens should be able to understand issues; nothing should be kept from them. Self-government is the goal.
Alexander Meiklejohn was one of the leading proponents of the Collectivist Reading. Thinks that a community’s
quality of thinking should be like a town meeting, where everyone is one equal terms and free to speak their mind
about matters of public interest. Someone can determine what things are relevant, but they cannot censor certain
opinions.
Hence Amendment is “Guardian of Democracy”.
Another feature of democracy is that of autonomous norms: that the laws apply to the lawmakers the same way that
they apply to others. Censorship is usually a heterogeneous norm. Mieklejohn’s mistake, according to post, is that
he allows someone censorship abilities.
Self-determination happens within public discourse, and this is why freedom of speech must be completely
protected.

***

Mika Morse mmorse@fas

Ely, Democracy and Distrust, pp. 73-104
Main Point: Ely is struggling with the question of the role of the Supreme Court in deciding issues of political
process. He explicates a theory of democracy that is primarily procedural using a review of the Constitution and the
most controversial cases from the Warren Court. He was famous for likening democracy to free-market economics:
just because there is an undesirable outcome does not mean democracy is malfunctioning, it is only when the people
lose their trust in the process that the Court should interfere.

- The Warren Court was primarily concerned with ensuring that the political process was open to all
- Rather than insisting on a fundamental set of substantive values, the Court upheld equal treatment and
protection
- Carolene Products footnote can be read as primarily concerned with ensuring participation
- One problem with the democratic process was the potential for a majority to vote to deprive a minority of
its rights
- So the framers of the Constitution designed the political process to make it difficult for that to happen and
the Supreme Court began to play the role of referee in protecting minority rights (Ely used McCulloch v.
Maryland as an early example of this)
- Ely uses the Constitution to argue in favor for a participation-oriented, representation-reinforcing approach
to judicial review by showing that the Constitution hardly ever mentions specific substantive values (and
where it does, it has been ill-fated – slavery, Prohibition) and it is mostly a set of procedural protections
- So, the Court should intervene only when the “market” (democracy) malfunctions, rather than impose
substantive values
- Ely defines malfunctioning as loss of trust in the process either because the channels of political change are
blocked, or minorities are being systematically disadvantaged and left out of the representative system

This reading is useful when read alongside the reapportionment cases. It is one of the many democratic theories that
came into the fray as the Warren Court took unprecedented steps in using judicial review in cases concerning
political questions. The other end of the spectrum is the argument that democracy should be substantive and that
just because the process is followed to the letter does not mean the outcome is fair.

***
 75

Jin Baek [email protected]

Powe, The Warren Court, pp. 199(The Political Thicket)-205, 239-55
265(The Poll Tax)-271

1. + 2.
The reading deals with the Court’s entry into the “political thicket,” or questions of political nature.
Frankfurter had been the champion of the precedent set in Colegrove v. Green (1946) that such political
questions were nonjustifiable, not appropriate for judicial resolution, and should be avoided to maintain protect
the Court’s independence. With Baker v. Carr (1962) the Court overturned Frankfurter’s precedent (6-2) and
entertained a series of cases that dealt with the issue of reapportionment.
Frankfurter’s concerns for twofold: one, and more importantly, he believed the abstention from a clash of
political forces would protect the public’s confidence in the moral authority of the Court. Also,
reapportionment seemed unjustifiable because there were no judicially enforceable standards when it came to
remapping state districts.
Brennan wrote the opinion, and did not do away with the “political question” doctrine completely because
no one but Douglas was ready for it – rather, the opinion argued that apportionment was not a political
question. Using the Equal Protection Clause, Brennan created a judicially manageable standard, staying that
under EPC “a discrimination reflects no policy, but simply arbitrary and capricious action.”
Baker signaled the end of rural domination of state legislatures and the beginning of states dealing with
problems of urban majorities. Baker was positively received by the public and the executive branch.
Gray v. Sanders (1963) and Wesberry v. Sanders (1964) followed Baker. Brennan struck down in the Gray
opinion rejected the Electoral College analogy of Georgia’s county-unit system, using non-constitutional
materials. Black’s Wesberry opinion mangled constitutional history to state that the framers intended
population to be the basis of the House of Representatives.
Reynolds v Sims (1964) – would be no “all deliberate speed” fiasco with redistricting. No-compromise
approach, equal protection was an absolute or something pretty near thereto. One person, one vote.
How equal must population be? Court answered, very equal.
Could state follow example of US Senate and have a nonpopulation based house? Court answered, no.
Could Court allow leeway to a plan adopted by popular vote? (Lucas) Court answered, remedy did not go
to the process of redistricting but to the outcome of districting, so no dispensation for popular vote.
Question that rose – what about the rights of the rural minority? Court concerned of minority capture, not
tyranny of the majority. Court offered observations that the minority could be adequately protected by other
means – judicial enforcement of constitutional rights.
Lucas v. Colorado 44th General Assembly (1964) – absolutism that would increasingly dominate
reapportionment. Implied there was but a single solution to reapportionment, the solution created in Reynolds.
Reaction in Congress and Senate was negative at first (for Reynolds and Lucas) with efforts to limit the
Court’s jurisdiction, but “rapidly became embedded in the national sense of democratic values.”
Harper v. Virginia Board of Education (1965) – Poll tax repealed, clarified earlier cases to show that
evolving standards were a guide: the right to vote was too precious to be limited.
Cases such as Kramer v. Union Free School District and Powell v. McCormack continued Court’s
involvement in voting, democratic process.

3.
- Demise of Frankfurter: Soon following the lopsided Baker decision (also due to Whittaker’s
retirement), Frankfurter suffered a stroke, which he blamed on the Baker decision.
- A sequence of cases that started with Baker, a case that Warren deemed the most important of his
tenure. Not only did the result of these cases change the democratic process significantly, it also
signified an alliance with the Executive branch, which had ramifications for the Court. (Warren
was consulted on future colleagues, etc)
- Living constitution: an evolving standard was used frequently in these decisions

***
Week 13
Quang Tran qttran@fas
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Mon. December 13—lecture

1. Main points:
-“Democracy” emerged as a way to think about these cases
-There are contested and different forms of democracy
• Legitimacy of judicial review:
o Since Lochner era, judicial review seen as antidemocratic
o New Deal Court: said that judicial review does need to adhere to federalism, but judiciary also has
a role to watch over the way democracy is playing out
 builds on Carolene Products footnote, which created special role for Court
 this idea clearly motivated Court’s involvement in Baker v. Carr
• Democracy emerges as a way to think about reapportionment
o rethinking after WWII: people saw a need to reconcile judicial review and democracy; to see that
judicial review is not antidemocratic, but there is a part of democracy that requires judicial review
• Theories of democracy:
o strong/weak, substantive/procedural, social & economic/political rights
o Joseph Schumpeter: wrote book about weak, minimalist democracy; molded after economic model
o discussion embroiled in Cold War rhetoric: Americans favored a weak model of democracy, they
wanted to keep it to strict, narrow, procedural terms to show that we’re not socialist
• Horwitz: we need to move beyond “process” to more “substantive” democracy
o how can we have equal political participation when there is unequal power? in order to have
functioning process-oriented democracy, you must exercise substantive control.
o this is what Warren Court saw, this is how it was able to use the idea of “democracy” to think
about reapportionment
o democracy implies much more than just process, it implies a culture based on values of respect
and civility, tolerance and value of difference rather than exclusion based on difference
o so, for ex., to say that Court’s striking down of segregation limits democracy because it allows
minority rights to overtake majority rights has a mistaken meaning of democracy
2. How do these points fit into the broader themes of the course as a whole?
• Analyze Warren Court’s decisions based on its vision of democracy: not whether it’s antidemocratic or
democratic, but its version of what democracy means
3. Is Horwitz presenting two or more different views?
• Yes, Horwitz presents different definitions of democracy, including procedural/majority rules and
substantive/equality-based democracy. He supports the latter; see above for reasons.
4. How do broad themes of the lecture fit into the course as a whole?
• role of Court in a democracy, legitimacy of judicial review

Wed. Dec. 15—lecture

1. Main points:
-Carolene Products footnote can be interpreted differently
-Horwitz supports interpretation for substantive democracy, but says the divide is not that rigorous.
• Ely’s article “Democracy and Distrust”: Ely discusses how Warren Court was enacting the footnote. His
interpretation of the footnote says Court needs to enter in times of “market failure” in democracy. This
gives Court more of an “anti-trust” role than a “regulatory” role, and keeps the definition of democracy
close to being process-oriented.
• A look at history:
o For most of American history, Court has not protected minority rights (e.g. used property rights to
defend slavery, turned down minority cultural/religious rights).
o So to what extent should we think of democracy and the footnote in terms of model of “protecting
minority rights” when they are trampled on, when that hasn’t really been done at all? Court has
not fulfilled its “anti-trust” role
• Horwitz’s view:
o Once you adopt minimalism, you make some choices about the educational system, the amount of
equality (not) needed. But there are certain assumptions that have to be made before procedural
democracy can be robust. There needs to be a relative equality to have democracy.
o The split between procedural and substantive is not very rigorous. In a robust conception of
democracy:
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 judicial review is not incompatible with democracy

 difficult to separate process and value
 difficult to insulate Court from making value choices
• Lucas v. Colorado: the best example of Warren Court’s substantive commitment
o Colorado referendumed and voted for unequal representation. But even though the process was
followed, Warren still struck it down, saying it deprived the people of underrepresented areas of
the vote.
o Notice Warren didn’t think in term of requirements for a democracy, but in terms of what’s
required for an individual to vote.
2. How do these points fit into the broader themes of the course as a whole?
• Interpretations of Carolene Products impact what Court can do, Warren Court motivated by more
substantive version of democracy
3. Is Horwitz presenting two or more different views?
• Yes, Horwitz mentions both process-oriented and substantive democracy. Again he takes the substantive
side, but less so than in the previous lecture, since here he questions the divide altogether.
4. How do broad themes of the lecture fit into the course as a whole?
• role of Court in democracy, legitimacy of court action over state actions, legitimacy of court’s interference
even when democratic process was followed, pay attention to what vision of democracy Court subscribes to

Fri. Dec. 17—lecture

1. Main points:
-Our 18th century Constitution has negative rights (freedom from…)
-European, Post-WWII constitutions have positive rights (freedom to…)
-During Warren Court years, some change to positive rights
-Examples Horwitz expounded on:
• Griffin v. Illinois (indigent must be given a free trial transcript)
- how much does the equal protection clause require substantive equality?
- to what degree does it put a positive duty on the states?
• Douglas v. CA (must be provided with a lawyer at appeals)
- Harlan afraid of the Eq. Prot. Clause moving towards total equality, but Horwitz says he’s too
paranoid, and the case has no effect on society equality overall
• Shapiro v. Thomson: (no residency requirement for welfare)
- Real question: is wealth a suspect classification?
- if a right is furnished, does the eq. prot. clause require that everyone get it?
- how should wealth be distributed and who should decide?
• Goldberg v. Kelly (after the Warren court, but very like its decisions)
• Fleming v. Nester: (gov’t has right to revoke soc. security for lying re: being Communist)
- the new feudalism, dependency on gov’t largess
- Brennan actually cites Reich’s article
2. Fit into the class’ themes:
• tentative shift from negative to positive rights (not a dramatic change!)
- outcomes justified by other means, such as “right to travel”
- authors of opinions state “it’s NOT leveling!”
• part of shift of power from states, enforced uniformity

***
Stephanie Dorvil dorvil@fas
Griffin v. Illinois (1956)
1) Griffin v. Illinois (pgs 315-318 in sourcebook)
2) Course Section: The New Property
a) Issue: the constitutionality according to the Due Process and Equal Protection Clauses of the 14th A. of not
granting indigent defendants the right to a stenographic record of the court proceedings for use in an
appellate review
3) Date decided: 1956
4) Decision vote: 5-4 for deciding that the defendant’s constitutional rights were violated – case vacated and
remanded
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5) Black opinion: joined by Warren, Douglas, and Clark (2 opinions total)

a) Reasoning behind opinion
i) Constitutional promise of a “fair trial” necessitates this
(1) No discrimination based on poverty, race, religion, or color – no rational basis of guilt or
innocence can be based on these qualities
ii) State can find other documents that would suffice in appellate proceedings
6) Frankfurter concurrence (opinion #2)
a) Due process – least frozen concept of our law – the least confined to history and most absorptive of
powerful social standards of a progressive society =
i) legal realism – “Law addresses itself to actualities”
ii) living constitution
b) State determines policy
i) Allows appellate review, and cannot prevent requests by virtue of indigency
ii) No need to equalize economic conditions, however.
c) Ruling should be applied prospectively, not retrospectively
7) Dissenting: Justice Burton - Minton, Reed, and Harlan joining
a) Constitution does not compel State to provide documents at no cost to indigents – although it is desirable
i) No denial of Equal Protection – not an “arbitrary and unreasonable distinction to make, between
capital and lesser offenses as to the right to a free transcript”
b) Not bound to make defendants economically equal before its bar of justice
c) Requires equal protection of the law, but it does not require the States to provide equal financial menasfor
all defendants toavail themselves of such laws.”
8) No new ones established
9) Rational basis test? (within distinction between capital and noncapital crimes)
10) No cases overruled directly – because of the prospective remark.

Douglas v. California (1963)

1) Douglas v. California
2) Course Section: The New Property
a) Issue: whether counsel should be appointed to indigent defendants at the appellate level
3) Date decided: 1963
4) Decision vote: 7-2 for deciding that the defendant’s constitutional rights were violated – case vacated and
remanded
5) Douglas opinion:
a) Reasoning behind opinion – comparison to Griffin v. Illinois
i) Constitutional promise of a “fair trial” necessitates this
ii) Judging merits without assistance of counsel is unfair
(1) Dealing with the first appeal ONLY
iii) State can, consistently with the 14th A., provide for differences so long as the result does not amount to
a denial od due process or an “invidious discrimination”
(1) But where the merits of the one and only appeal an indigent has as of right are decided without
benefit of counsel, we than an unconstitutional line has been drawn between rich and poor.
6) No concurrences
7) Dissenting: Justice Harlan, with Justice Stewart joining
a) Inappropriateness of using Equal Protection in this case – use only DUE PROCESS
b) Financal equality – money is always easier to find for the rich than the poor – do we penalize the state for
exacting taxes, standard fines, university tuition, etc?
c) States not bound to make everyone economically equal – not capitalism
i) Moral obligation to eliminate evils of poverty, but not to give whatever others can afford
d) Appellate review not guaranteed by 14th A. – So not the same as Gideon v. Wainwright
e) Rejects “first appeal” defense from majority
f) CA protecting itself from needless expense
8) No new ones established – again with the “arbitrary and unreasonable distinction to make, between capital and
lesser offenses as to the right to a free transcript”
9) No new ones – see 8
10) No cases overruled – confirms Gideon v. Wainwright somewhat
 79

Shapiro v. Thompson (1969)

1) Shapiro v. Thompson
2) Course Section: The New Property
a) Issue: whether minimum residential requirements for receiving welfare assistance are Constitutional
3) Date decided: 1969
4) Decision vote: 6-3 for deciding that it is unconstitutional
5) Brennan opinion:
a) Reasoning behind opinion –
i) inhibiting migration of needy persons into the state- not a good rational basis
ii) equal protection prohibits such an apportionment of state services
(1) valid interests = preserving fiscal integrity, limiting expenditures
iii) classification here – inhibits fundamental right of interstate commerce
(1) does not promote a compelling state interest
6) No concurrences
7) Dissenting: Chief Justice Warren, joined by Black, 2nd dissent written by Harlan
a) First dissent
i) example of Congress’ residence requirement in DC as a standard
ii) not a restriction on interstate travel, and no evidence as a deterrent
iii) States have right to concentrate their resources however they see fit
b) Harlan dissent - elucidating compelling interest doctrine (2 branches)
i) suspect classifications must be supported by compelling interest
(1) majority expands suspect criteria to interstate commerce
ii) suspect classifications inhibit a “fundamental right”
(1) (i.e. Reynolds v. Sims)
c) historical purpose of equal protection – “original intent”
d) judicial restraint – Court is not supposed to be a “super legislature”
i) what is the authority to determine “fundamental rights”
ii) decision in the wrong direction; doesn’t keep 3 branches separate
iii) expansive equal protection is more dangerous than that of due process because of greater potential for
judicial interference
e) sees rationale in gov’t objectives for the residency requirements (4 of them)
i) deny gold-diggers (ppl who came just fro the benefits)
ii) prevent fraud
iii) predicting budgetary amount needed for future assistance
iv) restrict assistance to those who have made some contribution to the state
f) 2 more motives
i) experimentation requires lots of money and the Feds may not want to give a lot right away, so you
have to save a little to make a little in the future (i.e. government may sponsor you if your program
proves to be good)
ii) constitutionality is assumed to be present in the statutes anyway
8) invidious classification based on wealth, compelling state interest doctrine, fundamental rights
9) No new ones – rational basis test in terms of determining compelling state itnterest, judicial restraint
10) No cases overruled

***

Steve Marks marks@fas

Reich, “The New Property,” pp. 733-42, 751-55, 768-71, 783-87
Main point:
Government has emerged as a major source of wealth, taking the place of more traditional forms of wealth and
supplanting private property. But the government wealth is all highly regulated on terms to further “the public
interest.” Because government’s influence is so far reaching, it should be treated as a right, not as a privilege. Reich
quotes the framers in saying that “power over a man’s subsistence amounts to a power over his will.” He lays out a
number of types of government-created wealth:
• Income and benefits
 80

• Jobs
• Occupational licenses
• Franchises
• Contracts
• Subsidies
• Use of public resources
• Services
He goes on to explain that these are regulated, often somewhat arbitrarily, to further “the public interest,” and
advocates much stricter procedural safeguards for those to whom these benefits accrue. He argues that procedural
safeguards are useful “because it is so hard to confine relevance and discretion.” He compares the system to the
feudal system, in that “wealth is not ‘owned,’ or ‘vested’ in the holders. Instead, it is held conditionally, the
conditions being ones which seek to ensure the fulfillment of obligations by the state. Just as the feudal system
linked lord and vassal through a system of mutual dependence, obligation, and loyalty, so government largess binds
man to the state.”

How do these points fit in with the court cases of the section (Due Process, “The New Property,” and Rights)?
Goldberg v. Kelly (1970) concurs with Reich in finding that welfare is an entitlement, not a privilege. Shapiro v.
Thompson (1969) finds that denying welfare elgibility on residency requirements violates equal protection, again
echoing Reich.

How does it fit into the course as a whole?

The New Property touches on fundamental issues of individual rights. It argues that the growing importance of
government, and the lack of procedural due process that had accompanied the growth, amounts to a backdoor assault
on Americans’ fundamental liberties. Hence he argues for the creation of a “new property,” to safeguard citizens’
rights to government largesse as it became central to their well-being. The Warren Court fought throughout its
tenure to secure and expand individual rights and protect them from the government, and Reich’s approach fits
squarely with the Court’s outlook. Decisions like Goldberg v. Kelly concurred with Reich’s view, finding that
welfare was a statutory entitlement, not a privilege.

Goldberg v. Kelly (1970)

Section: Due Process, “The New Property,” and Rights
Importance: lays out the doctrine of “entitlements” to “the new property”—government largesse.

Decided March 23, 1970, 5-3

Finding: New York’s procedure of terminating benefits without a hearing until after the decision is made violates
recipients’ 14th Amendment rights. The government’s interest in conserving resources does not outweigh recipient’s
right to procedural due process.

Justice Brennan wrote for the Court, joined by Harlan, Marshall, Douglas, White
Reasoning: Welfare for those who qualify is an entitlement, not a privilege. And their situation “becomes
immediately desperate” because they are so needy, which also means they are too busy trying to survive to challenge
the government. (Also notes, “We have come to recognize that forces not within the control of the poor contribute to
their poverty.” Also, “Public assistance, then, Is not mere charity, but a means to ‘promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity.’”) Says that recipients must be aloud to present
evidence orally and confront and cross-examine witnesses.

Dissenting: Justice Black

Reasoning: Judges, according to the constitution, should not use their power “for legislative purposes,” which he
thinks is what the Court does in Goldberg by forcing the government to have these “evidentiary hearings” before
making deciding to terminate benefits. He says it is ridiculous to consider termination of benefits a deprivation of an
individual’s property. He also thinks the procedure laid out may not be bad procedure, but it is a legally unsound
ruling—he says the court finds the current procedure “unconscionable, and therefore, says the Court,
unconstitutional.” (“I would have little, if any, objection to the majority’s decision in this case if it were written as
the report of the House Committee on Education and Labor, but as an opinion ostensibly resting on the language of
the Constitution I find it woefully deficient.”) He thinks the expansive view of due process taken allows judges to
forbid almost any conduct they like, which he regards as a “drastic and dangerous departure from the constitution.”
 81

Dissenting: Justice Berger, in separate opinion not included in sourcepack

Dissenting: Justice Stewart, in separate opinion not included in sourcepack

Key themes and phrases:

-benefits are a “statutory entitlement,” not a “privilege”

Key test:
-Brennan modifies the balancing test to be an unbalanced test. Puts on the one side recipient’s interest in getting
welfare and state’s interest in not erroneously terminating benefits against the state’s interest in minimizing fiscal
and administrative burdens.

No previous cases overturned.

***

Joshua Rogers jprogers@fas

Green, “Liberal Legislation and Freedom of Contract”
1. Main point(s) of the readings
• Freedom is not merely restraint from compulsion
• The freedom that we think of when we think of freedom is a positive freedom, and is enjoyed within
society.
o “the mere enabling of a man to do as he likes is in itself no contribution to freedom”
o freedom is much greater in a society – “So to submit is the first step in true freedom, because the
first step towards the full exercise of the faculties”
o Freedom can’t be enjoyed at the cost of others, - “There is no clearer ordinance of that supreme
reason, often dark to us, which governs the course of man’s affairs than that no body of men
should in the long run be able to strengthen itself at the cost of others’ weakness.
o Man enjoying property, his “right to possession” is a positive right bestowed by society “founded
on a sense of common interest” so long as the use of that property doesn’t interfere with “like
freedom on the property of others”
2. How do these points fit in with the court cases of the section?
Amalgamated Food Employees v. Logan Valley Plaza – positive rights (protest)
Griffin v. Illinois – With due process clause – positive right to appellate review based on the negative right
that the govt. (via 14th amendment) shall pass no law… to obstruct…due process.
Douglas v. California – right to attorney for appeal guaranteed (positive right)
Note: Overall the warren court whether through the text or through a living constitution drew positive
rights from the negative rights committed to paper in the constitution and amendments.
•
3. How do the themes of the readings fit into the course as a whole?
• This reading fits into the course as a whole in the context of democracy. Foremost it points out that
man, whether it is stated or not in the constitution attains some positive rights when he enters into
society. It can be argued that the more liberal justices who believed in a living constitution would agree
with this definition of freedom. It extends rights beyond the textualist, constructivist interpretation and
uses some natural law argument to make a liberal and almost John Stuart Mill-esque sense of freedom.

Berlin, “Two Concepts of Liberty”

1. Main point(s) of the readings
• Negative conception of freedom
o Unfree – being prevented by others from doing what I could otherwise do
o Coercion is the deliberate interference of other human beings within the area which I could
otherwise act.
 Incapacity is not enslavement, coercion or lack of freedom.
o In order to prevent chaos, because “human purposes and activites do not automatically
harmonize with one another” – a high degree of emphasis was placed on goals: Justice,
 82

Happiness, Culture, Security, Equality – all could curtail freedom according to English
philosophical models.
 Therefore freedom must be limited by law
 But there should be freedom set aside which cannot be interfered with by law –
“minimum personal freedom”
o Berlin raises the argument that men can’t enjoy freedom equally because they don’t have
equal means.
 For starving people, personal freedom is diff. from that of the well off.
 “Equality of Liberty” – “repayment of my debt to those who alone have made
possible my liberty or prosperity or enlightenment; justice, in its simplest and most
universal sense.”
o Liberals like Locke, smith and Mill and conservatives like Hobbes all agree that some portion
of human existence must remain private but disagree how much
 They all agree that to invade the minimum amount of privacy would “degrade or
deny our nature”
 This can only be protected and preserved by granting negative rights, “liberty from”
otherwise known as “absence of interference.”
• Positive Freedom
o Rather than not being constraine, positive means “the freedom which consists in being one’s
own master”
 Berlin raises the argument against this view of liberty that men may in face need
restraint and coercion because they don’t pursue their own interests because of
ignorance.
2. How do these points fit in with the court cases of the section?
See above, as the reading was very similar the same cases apply.
3. How do the themes of the readings fit into the course as a whole?
• Negative Freedom: The coursewide application of this reading is again the topic of democracy which was
repeatedly brought up by Prof. Horwitz and head TF Gluck. This article explains how liberal and
conservatives may differ on what rights are but in order to preserve minimum human decency regardless of
economic state, etc. and satisfy all the best way to define those rights is by instituting negative guarantees.
Such negative guarantees include the Bill of Rights (Congress shall make no law…), much of the
constitution and the negative right policy is usually followed by textualists (justices who rely primarily on
the textual evidence) and occasionally originalists (justices who rely on the intention of the framers of the
documents).
• Positive Freedom: Positive Freedom became an important part of the warren court decisions. Many of the
lasting extrapolations and rights drawn from the text became positive rights – such as the Miranda Rights,
the Right to Privacy, etc. This is due in part to the combination of the due process clause and the fourteenth
amendment which served to broaden what the constition guaranteed beyond fairly strict and literal things
such as the 20 dollar provision, the anti-quartering act amendment, etc. Warren and the other proponents of
the living constitution believed they were fleshing positive rights out of the negative, sometimes with a
small infringement (as black would argue) on property rights (which several of the readins note is
necessary to guarantee positive rights)

Kloppenberg, Uncertain Victory (excerpt)

1. Main point(s) of the readings
• Liberals in 1896 sough to “assign a new meaning to liberty: it must no longer signify the absence of
restraing, but the presence of opportunity”
• Positive freedom was the keystone of progressive theory – to secure independence of individuals,
individual choice was foundation of freedom.
• Important: liberals acknowledged that laws would limit behavior, but sought to emphasize individual
freedom in that framework “autonomy in the framework of community” – freedom involves responsibility.
• Positive freedom has, since capitalization come to be equated with equality, but not the abolition of
property. – liberals left the conflict of freedom v. equality unresolved.
2. How do these points fit in with the court cases of the section?
Amalgamated Food Employees v. Logan Valley Plaza – positive rights (protest)
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Griffin v. Illinois – With due process clause – positive right to appellate review based on the negative right
that the govt. (via 14th amendment) shall pass no law… to obstruct…due process.
Douglas v. California – right to attorney for appeal guaranteed (positive right)
Note: Overall the warren court whether through the text or through a living constitution drew positive
rights from the negative rights committed to paper in the constitution and amendments.
3. How do the themes of the readings fit into the course as a whole?
See above, as the reading was very similar the same cases apply.

Amalgamated Food Employees v. Logan Valley Plaza (1968)

1. Name: Amalgamated Food Employees v. Logan Valley Plaza
2. Section of the course the case belongs: Due Process, “the new property” and Rights
a. How is the case important within the context of this section?
3. Date decided: 1968
4. Decision vote: 6-3 overturned state court ruling
5. Justice writing opinion: (Marshall)
a. Reasoning behind opinion: peaceful picketing in a location open generally to the public (even if
privately owned) is guaranteed by first amendment. Similar to use of park, sidewalks and public municipalities,
although the government can limit non-speech protest – in this case though there is no action taken by the protestors
which would outweigh the first amendment and the state cannot enforce its trespassing statute. The more an owner
opens up his property to the public for his own advantage, the more he loses control of it.
6. Concurring justice: Douglas
a. Reasoning behind opinion: picketing on parking area not like in a home or office – mall is a public
place even if privately owned. Upholds the provision of the injunction which hprohibit the picketers from interfering
with employees, deliverymen, and customers, but can’t discriminate based on picketers ideology which is protected
by the first amendment.
7. Dissenting justice: Black, White, Harlen
a. Reasoning behind opinion
i. Black: Cites fifth amendment due process clause – specifically the property
right – privately owned supermarket property can’t be seized without
compensation. Black claims here that the court has handed the parking lot to the
picketers. Justification – they could charge for parking if they wanted. Picketers
have right to speech and opinions – just not on the property that belongs to the
person they are protesting.
ii. White: fears that court has given picketers a license to take over private property
as long as they are not obstructive. Does not believe first amendment extends
that far.
iii. Harlan: dissented on other grounds (not in sourcebook)

***

Jennifer Woolridge woolridg@fas

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
1. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Physicians and abortion clinics challenged the constitutionality of amendments to the Pennsylvania abortion
statute, which included informed consent requirements, a 24-hour waiting period, a parental consent provision,
a spousal notification provision, and reporting and recordkeeping requirements. The Supreme Court reaffirmed
Roe v. Wade, but replaced its trimester framework by establishing a new “undue burden test.” The Court
concluded that only the spousal notification requirement constituted an “undue burden” obstructing “a woman’s
right to choose an abortion before fetal viability.” It ruled that all other provisions of the statute did not impose
an undue burden and were therefore valid.
2. Section VIII. Due Process, “The New Property,” and Rights
a. “Application of constitutional principle to facts as they had not been seen by the Court before” – “changed
circumstance may impose new obligations”, which might necessitate overruling precedent – but in this case
there has been no change in circumstance or understanding
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b. In other words, Roe v. Wade already represents the application of constitutional principles to current factual
circumstances – living constitution doctrine, right to privacy (Griswold v. CT)
3. Decided June 29, 1992
4. 5-4 Decision vote
5. Justices O’Conner, Kennedy, and Souter delivered opinion of court, Justice Stevens joins
a. Our reading of this case included only excerpt IIIB of the majority opinion, which concludes that
“neither the factual underpinnings of Roe’s central holding” nor the Court’s understanding of it
has changed, and therefore the Court cannot overrule this important precedent.
b. Other cases of comparable controversy: Adkins v. Children’s Hospital (liberty of contract
Lochner-like case) and Plessy v. Ferguson, where facts and changes of understanding of realities
warranted the Court to later reject their reasoning in West Coast Hotel Co. v. Parrish and Brown v.
Board of Education, respectively. Facts related to Roe v. Wade, however, have not changed since
its ruling, and therefore is upheld.
6. Concurrence: Justice Blackmun wrote a concurrence stating that the strict scrutiny applied in Roe should still
apply. (not included in SB reading)
7. Dissenters: Chief Justice Rehnquist and Justices White, Scalia and Thomas dissented (not in SB reading)
a. Would have upheld all of the provisions and overturned Roe.
b. Scalia: balancing test: woman’s right to abortion v. government’s interest in protecting the
“potentiality” of life; what some consider “potentiality” others consider already human life, therefore a
value judgment that people should decide, not court
8. Key theme/phrase: stare decisis, doctrine of adhering to precedence, in this case Roe v. Wade
9. Key tests established: Undue burden was defined as a "substantial obstacle in the path of a woman seeking the
abortion of a nonviable fetus."
10. Precedent: Roe v. Wade was upheld. [see Griswold v. Connecticut (right to privacy – use of contraception) for
somewhat related case ruled by Warren court]

Grey, “Do We Have an Unwritten Constitution?”

Thomas C. Grey, Associate Professor of Law, Stanford University, 1975

1. Main points: pure interpretive model (originalist) v. unwritten (living) constitution

- The pure interpretive model would require a radical purge of established constitutional doctrine (i.e.
modern application of Bill of Rights to including right of privacy, right to vote, right to travel, & generally
rights derived from equal protection and due process)
- Cites Professor Bickle (who’s lawclerk?), who concluded that despite having no direct intent to prohibit
segregation when written, the original understanding of the amendment was consistent with Brown, in the
sense that the general language of the clause licensed the courts (and Congress) to enforce evolving ideals
of racial justice – living constitution
- Acknowledges need to justify/question constitutional adjudication that goes beyond the norms implicit in
text and original history (living constitution doctrine): question of practical wisdom, whether truly
jurisprudence or simply form of legislation, question of lawful authority
- “There was an original understanding, both implicit [‘majestic generalities’ of 14th amendment] and
textually expressed [9th amendment], that unwritten higher law principles had constitutional status” (ie
natural rights era)
- Conclusion: Very little of constitutional law of individual rights have a foundation in the pure interpretive
model, and this model, which is reviving today, requires more direct critical scrutiny
3. Relation to this section’s court cases: Most of these cases depend on the living constitution model (see
above)
Griffin v. Illinois (1956) – transcript cost – equal protection (EP)
Douglas v. California (1963) – right to fair counsel - EP
Shapiro v. Thompson (1969) – welfare residence requirement - EP
Goldberg v. Kelly (1970) – right to appeal before loss of benefits – due process
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Amalgamated Food Employees v. Logan Valley Plaza (1968) – 1st A., picketing
Planned Parenthood of Southern Penn. v. Casey (1992) – right to abortion/privacy
4. Relation to course themes: This explanation of the originalist v. living constitution models applies to most
of the Warren court themes of this course: civil liberties, emergence of the right to privacy, the “rights”
revolution, etc…..(see above)

“What’s Wrong With Rights” [speech]

Richard Rorty, professor of humanities, University of Virginia, 1996

1. Main points: Rights talk wrong approach where human sympathy appeals are needed
- Replacement of early American leftists rhetoric of fraternity with current leftists rhetoric of “rights”; rooted
from success of civil-rights movement
- Trouble with rights talk: makes political morality not a result of political discourse, but of unconditional
moral imperative, unconditional commands (i.e. “instead of saying absence of legal protections …creates
unnecessary human suffering…,” we say legal protections are needed to protect rights)
- Defines “sadism” as “the use of persons weaker than ourselves as outlets for our resentments and
frustrations” and “to bolster our own sense of self-worth”, while “selfishness” is more based on rational
calculation
- “on constant guard against sadism, we have allowed selfishness free reign” because our society blames
selfishness as an intrinsic characteristic our “dominant white patriarchal heterosexist culture”
- conclusion: the more we can speak a robust, concrete, practical language receptive to legislators and
judges, the more use the American left will be at brining about change
2. Relation to this section’s court cases/ course as a whole: The court’s opinions in these cases (as in most
cases) are based on “rights talk” since the constitution and Bill of Rights explicitly delineate protected
rights. However, most cases also do take into account human suffering in order to determine whether a
right has been breached (ie. Brandeis brief, Brown, sociological jurisprudence, etc.).

***

Danielle Buckley dbuckley@fas

Horwitz, “Rights”

Powe, The Warren Court, pp. 445-62

Mon. December 20—lecture

Warren Court puzzle if looking through biographical lens
-decisions subjective
-background of judges mattered
-surprising that Eisenhower was surprised by Warren and Brennan- no clearly established ideological
boundaries for appointments- roll of the dice

More general picture- cold war liberalism

-republican party had many liberal internationalists
-represented by Eisenhower
-consensus of how institutions should work
-Warren Court= legal manifestation of post-war liberalism

Q: How justices shifted from commitment to New Deal liberalism to “cultural liberalism”
-New deal liberalism focused on commerce clause and economic legislation and federalism
-FDR’s appointments: Jackson, Reed… not appointed with the slightest care about their view on human rights; only
on new deal legislation
-shift to questions of human dignity
 where did this come from?
-can be seen as a decline of progressivism (no longer about economic equality)
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-alternatively: task to explain how Brennan (father union leader) shifted to understand cultural liberalism
Ans: race was the bridge: Brown v. BOE
-even speech cases (ie NAACP v. Button)
-even criminal justice was a race issue
-pt: race pivot for changes in understanding of constitutional law
-substantive egalitarianism—rights-oriented conception of liberalism

Brown very important for questioning assumptions about American law and shaping warren court

Was the warren court historically unique event?

-only progressive court
(marshall?)
 shifted discourse of American constitutional law away from property rights to some notion of human
rights

Black
1) populist economic equality
2) human rights
-even though background wouldn’t suggest

3 Warren court jutices (Black, Brennan, and Douglas) all served over 30 years
-Douglas not great because though most brilliant, wasn’t influential because didn’t believe in legal doctrine and tests
-Brennan always lobbied for majority
-Black influential- asked all the questions- during McCarthy era stood his ground

Frankfurter- 23 years- can justice be great independently of substantive position he takes over time? No
-failed to discern movement of history
-judicial restraint

Warren- claim to leadership

-Brown conference-shaping

Model of Supreme court as having limited amount of capital to expend

-pay in public opinion
-but this is flawed because it is hard to predict the reaction of the public

***

Maurice Chen mschen@fas

Reading Period
Horwitz, The Warren Court and the Pursuit of Justice
This book is essentially the entire class – from lectures to coursepacks and books to the movie screenings –
condensed into about a hundred pages. At many times, it seemed Horowitz was reciting verbatim from the book
during lectures. With that in mind, I am tempted to say that the book can be used as a fairly rough substituted for
what he covered in lectures, and vice versa. Neither, of course, can completely replace the other.

I. Constituting the Warren Court

- Gives a biographical introduction to the liberal justices of the Warren Court: Warren, Black, Douglas,
Brennan, and Goldberg
- Categorizes liberal justices mainly as “outsiders,” whether economically, socially, or religiously.

II. Brown v. Board of Education: Setting the Themes of the Warren Court
- Very similar to discussion in lectures, from historical context to NAACP strategies to changing
constitutional interpretation.

III. The Civil Rights Movement

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- Desegregation profoundly affected First Amendment rights: see NAACP v. AL, NAACP v. Button, and NYT
v. Sullivan.
- Fearing the rise of anarchy, disorder, and general lawlessness from the movements, Black broke with the
liberal majority.
IV. Standing Up to McCarthyism
- Presented trends of Court through decisions of primary cases during each period.
- Examines Brennan’s four concepts of free speech: “chilling effects,” “void for vagueness,” “overbreadth,”
and legitimacy of “facial” challenges.

V. The Evolving Concept of Democracy

- Warren Court redefined democracy, no longer protecting the majority but rather a pluralism of values –
took on more substantive values than minimalists.
- Examines reapportionment cases, arguments around a “living Constitution,” positive concept of freedom
(freedom to, not from), and criminal procedures.

VI. Democratic Culture

- Warren Court acknowledged relationship between democracy and culture through obscenity cases, the rise of
symbolic speech, and the right to privacy

VII. Conclusion
- Warren Court should not be judged in terms of activism but rather progressivism, its dedication to the protection
of human dignity.

***

Helen Ogbara ogbara@fas

Powe pp 209-216; 465-501

Prologue to Part III (209-216):

The Fifth Vote

The first part of this section discusses the major changes that befell the Court in 1962. The court in this year
received the crucial fifth vote (Goldberg) that moved the court into more liberal territory. Before Goldberg came on
the court the NAACP cases were slated to be decided in favor of the states instead of the NAACP. 1962 then
represents a crucial turning point for the court, and when most of us speak of “The Warren Court” it is this liberal
era that we are discussing.

Some points of note about Justices:

• Whittaker announced his retirement in 1962
• Goldberg had a stroke because he was so upset with the Baker vs. Carr decision
• Kennedy appointed two members of his cabinet, White and Goldberg to serve as replacements.
• White was a Rhode Scholar, football all-star, and top of his class at Yale law school. He believed in practical
decisions and always aimed to make decisions that accorded with his strong values.
• Goldberg was a solid liberal and aimed to be an “activist justice”
• Both men were New Frontiersmen, solid members of the Kennedy team
• Goldberg only stayed on the court for three years. With his large ego, Johnson lured him away to serve as the
American ambassador to the UN.
• Abe Fortas was Goldberg’s replacement, another solid liberal and close friend of Johnson.

About 1962:
• Most people accepted that the court was right on issues such as segregation, and many of the court’s major
critics completely faded from view.
• America had the sense that it could “do anything,” having just won World War II and beaten the Depression.
Members of the Kennedy administration and Congress believed they were part of a great project of bettering
society.
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About the Court’s legacy:

• Court was understood by many as a “Footnote Four” court, because it often followed a line very similar to the
one outlined by Justice Stone in the Carolene Products case.
• The court can also be read, however, as a group of “men with power happily exercising it to promote the values
that were, at least during the 1960s, held by the dominant national elites.”

pp. 465-501
Prologue: Retirement
 1968: Earl Warren is confident that RFK will win the presidency
o RFK assassination means Nixon is a shoe in for presidency
o Warren decides that he cannot outlive the Nixon
 Bad blood existed between Nixon & Warren from CA days
o Warren decides to retire before Nixon can get elected and appt successor
 Warren notifies LBJ and the two plan a way to prevent Nixon from making chief justice apptmt
 Fortas was to be named Warren’s successor acc to LBJ. This was a problem b/c:
o Southern Dems didn’t like Fortas
o Republicans wanted to wait until Nixon was elected
 CA Governor Ronald Reagan argued Warren shouldn’t get to determine who would
“dominate for the next 20yrs in the Court”
o LBJ backstabbed in terms of filibuster- supporters did not help him get Fortas through
o Fortas questioned by the Senate Judiciary Committee before confirmation
 Fortas’ role as LBJ’s trusted advisor comes into question
 Fortas lies about being involved in key LBJ decisions
 Strum Thurmond lambasts Warren in hearings & interrogates Fortas on Mallory decision-
Fortas pleads the 5th as justices are not allowed to be questioned on their decisions
 Fortas sends letter to Warren and Douglas explaining that public sentiment is against the
Warren Court’s most recent decisions (in past 3 years
o Fortas hopes that Nixon (who respected him as a scholar/lawyer) would not leave him out to dry
 Nixon doesn’t back down- uses “law and order” strategy to win popularity
o Fortas loses nomination 45-43 (needed 67 votes to win) S. Dems join Reps.
o Nixon eventually wins the Presidential election on the “law & order” strategy
 Republicans praise stance, liberals see it as code for racism
1968 Term: 2 Major Cases
 Epperson vs. Arkansas
o Invalidation of the state’s “Monkey Law”
 Powell v. McCormack
o The Court claimed the power to intercede in the internal affairs of Congress in order to protect
a corrupt black congressman
 Shapiro vs. Thompson
o Created splits in the normal voting bloc
o Warren & Black desert their “brothers”: Warren identified “with the plight of the states faced
with immigration & saw added welfare payments from the perspective of a former chief
executive who would have had to find the money” other 4 assumed money could be found
 Fortas Resignation
o Nixon immediately starts trying to find another seat to fill (in addition to Warren’s)
 Has the IRS look into Douglas’ income statements/tax returns
 Looks into Fortas’ business dealings
• Fortas gives Nixon an “in” to a Court vacancy
 Fortas can’t stand up to the heat of investigation and steps down
The end of the 1986 Term
 Warren Court ends on June 23rd 1968
o Nixon swears in Burger as chief justice
 Burger was the “anti-Warren” acc to Nixon
 Felt that the criminal justice system had been tilted “unfairly, unwisely and
unconstitutionally toward the criminal and away from justice”
What was the Warren Court?
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 Powe describes the Warren Ct as revolutionary & “engaged in the fundamental discarding of older law”
 Owen Fiss quote on the revolutionary & progressive nature of the Warren Ct
 Footnote Four
o Was the Ct just operating as Ftnte 4 of the Carolene Products dictated?
 Summation of Footnote Four and its mandates:
• Directs the Ct to police the electoral process (judicial review)
• Special protection for discrete and insular minorities
o Think blacks, poor, criminal defendants, protestors (McCarthy era),
civil rights activists, religious dissenters
• Ct ought to enforce specific commands of the Bill of Rts
 Case for Ftnte 4 is perfect (if you exclude Griswold and pre-1963 communist cases)
 Was it the Warren Ct or the Brennan Ct?
o Yes- led the pack on most of the decisions (key example: Baker vs. Carr)
o No- missed out on Brown!, gd stuff really came after the Warren Ct, Warren was most important
during the 1st of the 3 periods of the Court, least important during the second but was still the
public face of the Ct – possessed “gravitas”
 Can’t say that the Warren Ct necessarily “created” social change within society b/c it was influenced by
social change within society