Origins of Judicial Protection of Civil Liberties and Civil Rights

Civil Liberties

A majority of public and private leaders of the late nineteenth and early twentieth centuries believed that civil liberties "were only to be protected for those citizens who had demonstrated, both by their attitudes and their behavior, that they were prepared to utilize those freedoms in positive and constructive ways." ⁴⁰ Growing cultural and racial pluralism, when combined with national security concerns, tested this consensus. Federal and state efforts to muster the nation's patriotic resources during World War I posed unprecedented questions about the constitutional protections accorded civil liberties. The federal judiciary before the war had heard only a few cases, and the case law in the state courts, based on state bills of rights, was only slightly larger. The courts in these few cases had fashioned a restrictive tradition, but the sweep of government efforts in World War I was so extensive that it drew the attention of a small academic elite, most notably Zechariah Chafee, Jr., a Harvard Law School professor and prolific author. Chafee left an indelible stamp on the area of free speech and his major work, Freedom of Speech ( 1920), was perhaps the most influential single book published on the subject in the twentieth century. Through the writings of Chafee and the decisions of federal courts during World War I, the modern law of civil liberties began to take form.

Chafee and other advocates of civil liberties recognized that the entry of the United States into World War I exposed a tension between the rights of citizens, under the First Amendment, to oppose that conflict and the necessities of fighting the war. The American common law adhered to the principle of no prior restraint on speech or writing. After publication, however, the government or a private person (relying on the law of libel) could seek through a lawsuit to demonstrate injury. In order to prove injury it was necessary to show a "proximate" (i.e., a direct relationship) between what was spoken and written and the damage done. In theory, simply proving that the material had a "bad tendency" was not enough. In practice, however, judges had taken a broad view of proximate causation and had been sensitive to protecting the public welfare. It was against this tradition that Chafee argued. Justice Oliver Wendell Holmes, Jr., for example, held in Patterson v. Colorado ( 1907) that anyone uttering words dangerous to the public interest was susceptible to punishment.

During and after World War I, the Supreme Court had to take account of not only the First Amendment's meaning but also the extent of its application. Since the early nineteenth century, the Supreme Court had held that the Bill of Rights applied only against the federal government and not the states. The ACLU and Chafee wanted to

-262-

expand the protection of the Bill of Rights through incorporation of it in the due- process clause of the Fourteenth Amendment. Incorporation meant that the national authority of the federal judiciary could be brought to bear in supporting unpopular minorities (such as dissidents and radicals) against local majorities. Incorporation, of course, had no relevance where a federal statute was in question.

The Court endorsed the federal government's wartime security measures. In Schenck v. United States ( 1919), the justices upheld the military censorship provisions of the Espionage Act. Schenck, the secretary of the American Socialist party, had circulated antidraft leaflets among the armed forces. He appealed his conviction in a lower federal court on the grounds that the Espionage Act violated the First Amendment. The Supreme Court unanimously rejected Schenck's position, and Justice Holmes concluded that the right of free speech was not absolute. "Free speech," Holmes explained in one of the most memorable lines of legal history, "would not protect a man in falsely shouting fire in a theatre, and causing a panic." ⁴¹ The government might do in wartime that which it could not do in peacetime. Holmes went on to spell out a test (the clear and present danger test) by which to measure violations of the right to free speech. "The question in each case," Holmes wrote, "is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of degree and proximity."⁴²

Holmes's clear and present danger test was the old bad-tendency test wrapped up in new judicial wording. The Court drew on it to sustain the convictions of radicals in two other cases, Frohwerk v. United States ( 1919) and Debs v. United States ( 1919).

The Court also sustained the Sedition Act in Abrams v. United States ( 1919), but in this instance Holmes, who had come under withering criticism from Chafee and other civil libertarians for his Schenck decision, dissented. Along with Justice Louis D. Brandeis, he urged a more generous interpretation of the clear and present danger test. The case involved the publication of pamphlets attacking the government's dispatch of an expeditionary force to Russia to aid the forces fighting the Bolsheviks. Justice John H. Clarke wrote for the majority that the purpose of the pamphlets was to "excite, at the supreme crisis of the war, disaffection, sedition, riots, and . . . revolution."⁴³

Holmes and Brandeis disagreed. "Nobody can suppose," Holmes insisted, "that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do So."⁴⁴ Beginning with this decision, the clear and present danger formula became a device to protect rather than restrict future civil liberties. It made little headway with the majority of the Court, whose justices clung to the bad-tendency test.

When the Court turned to state criminal syndicalism and sedition laws it encountered a somewhat different set of issues. These state measures simply did not have the same compelling national-security rationale as federal legislation. The ACLU pressed the attack on the state laws with special vigor, but, in doing so, it and the justices encountered a fundamental and highly controversial issue of whether the Fourteenth Amendment's due-process clause had incorporated the First Amendment's provisions against state action. The First Amendment provided that "Congress shall make no law . . . abridging the freedom of speech, or of the press."⁴⁵ The Court, in Hurtado v. California ( 1884), had decided that the Fourteenth Amendment had not incorporated

-263-

the Bill of Rights, leaving advocates of nationalizing the Bill of Rights (i.e., applying it to the states) with a significant barrier to scale.

The Court in the 1920s gradually eroded the Hurtado precedent. In Gitlow v. New York ( 1925) the justices considered a New York criminal anarchy law under which Benjamin Gitlow, a Communist party leader, had been punished for publishing a "Left Wing Pamphlet" calling for the overthrow of the state government. The ACLU took Gitlow's appeal to the high court, and its attorneys argued that the concept of liberty in the Fourteenth Amendment included the exercise of speech and press free from state interference. The majority disagreed and upheld Gitlow's conviction, but it did so with a bow to the idea of incorporation. Justice Edward Sanford declared for the Court that "we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgement by Congress--are among the fundamental rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states."⁴⁶ The Court made this affirmation to show that the First Amendment could be used to uphold the New York law, but in practical operation its decision meant that the Court could also strike down a law.

ACLU lawyers pressed this potential advantage. Not until Stromberg v. California ( 1931) did the Court accept that the joining of the First and Fourteenth Amendments could be used to strike down a state law. The California General Assembly had passed a law prohibiting the display of the red flag as an emblem of anarchism or of opposition to organized government. Chief Justice Charles Evans Hughes, whom President Hoover appointed in 1930, wrote in overturning the statute that "the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech."⁴⁷ In the same year, the Court in Near v. Minnesota extended the protection to the press, in ruling unconstitutional a Minnesota statute that permitted prior restraint, because state courts could permanently enjoin any publication they found to be a "nuisance." ⁴⁸

Civil Rights

The NAACP and ILD also made limited gains in laying the foundation for modern civil rights law. When the NAACP was formed, civil equality in public policy was limited by two doctrines: "state action," which appeared to exempt private discrimination and intimidation from the prohibitions of the Fourteenth Amendment, and "separate but equal," which required proof of actual inequality of facilities to show that the equal protection of the laws guaranteed by the Fourteenth Amendment had been denied. Moorfield Storey and Louis Marshall worked within the confines of these doctrines, whereas NAACP counsel after World War II sought to overturn them. Storey and Marshall were forming the first part of the association's beachhead strategy that culminated in Brown v. Board of Education ( 1954), striking down the separate-but-equal doctrine. In the first three decades of the twentieth century, however, the NAACP barely had its feet on the beach. All that Storey and Marshall had to work with by way of precedent was a West Virginia case ( Strauder v. West Virginia, 1880), affirming the right of blacks to sit on juries, and a California case ( Yick Wo v. Hopkins, 1886), nullifying building codes for laundries that effectively excluded Chinese from the laundry business. ⁴⁹

Through either direct or indirect participation, Storey managed to move the black

-264-

civil rights agenda forward. In Guinn v. United States ( 1915) the justices ruled that the "grandfather clause" of the Oklahoma constitution, which permitted illiterate whites with relatives voting before 1866 to vote without passing a literacy test, discriminated unconstitutionally against blacks, whose relatives had been nonvoting slaves. In Nixon v. Herndon ( 1927), the justices held that all-white party primaries, in which blacks were prohibited from voting, violated the equal-protection clause of the Fourteenth Amendment. The NAACP over the next two decades claimed a string of high court victories that cracked open the voting process in southern states. Finally, Storey personally argued the case of Buchanan v. Warley ( 1917), which involved a Louisville, Kentucky ordinance that classified certain blocks of the city "white" and others as "colored." The justices struck the measure down on equal-protection grounds.

During the 1930s, Charles Houston's aggressive leadership of the newly formed Legal Defense Fund pushed the cause of black rights even further. But the NAACP was often locked in bitter conflict with the ILD to gain control of cases. Typical was the struggle over the appeals taken from the famous Scottsboro, Alabama cases, in which the ILD won its greatest victory and in which the Supreme Court accepted that other provisions of the Bill of Rights could be nationalized.

The case involved the arrest in March 1931 of nine black boys charged with the rape of two white girls, and the unseemly haste with which the accused were doomed to the electric chair. The ILD enlisted the services of several distinguished authorities on constitutional law, most notably Walter H. Pollak. He argued, in Powell v. Alabama ( 1932), that the right of access to counsel (a right specified in the Sixth Amendment) should be extended against the states through the due-process clause of the Fourteenth Amendment. Justice George Sutherland, while not specifically overruling the Hurtado precedent, spoke for the Court in holding that the right to counsel was protected nationally in capital cases.

Yet significant barriers remained to full equality for blacks and other racial minorities. When, for example, the justices were pressed to decide the constitutionality of the federal government's wartime relocation of the Japanese, a majority of them acquiesced. In Hirabayashi v. United States ( 1943) and Korematsu v. United States ( 1944), the Court sustained the actions of the Roosevelt administration. The Court was not in the position, as has often been true during war, of second-guessing a policy that was predicated on a "pressing public necessity." ⁵⁰ Nonetheless, the Court's behavior was a "disaster" that smacked to many of supporting Nazi-like actions, of hiding behind legal technicalities as a way of avoiding constitutional conflict, and of creating a precedent of menacing proportions should the nation find itself locked in a third world conflict. ⁵¹

Race, Ethnicity, and Rights Consciousness

Between 1917 and 1945 cultural and racial diversity challenged the values and assumptions of the legal culture. The presence of massive numbers of foreign born and their children, demographic shifts caused by internal black migration, and total war left white, native-born, Protestant Americans scrambling to maintain their cultural values and social practices. Racism, nativism, and national-security hysteria shaped the legal culture in ways that mocked the rule of law.

-265-

But these years bequeathed other important (and contradictory) lessons. American legal culture mirrored the rich diversity of the general culture, displaying a continuing capacity to adapt, though sometimes imperfectly, general principles of equality and fairness to social change. Even if incompletely realized, the promotion of ethical and moral conduct in the profession, the administration of a criminal justice system based on individual rehabilitation, a commitment to openness in political discourse, and a belief in equality before the law persisted. Equally important, the magnitude of social change generated within the federal system a growing tendency toward centralization of authority, a belief that the national government should promote individual rights and equality, and an awakening realization of the instrumental relationship between legal and social change. Despised minorities realized for the first time the potential for securing protection against local majorities through the nationalizing authority of the federal courts.

-266-

14
The Great Depression and the Emergence of Liberal Legal Culture

The Great Depression

The Depression, which lasted from 1929 to 1941, was an economic plague so sweeping that it altered expectations about the proper relationship of law to society, of government to the governed. The white middle class had historically provided the bedrock support for the legal culture, but it experienced perhaps the most wrenching changes. That economic calamity should befall poor blacks and whites made sense in light of the laissez-faire individualism associated with the late nineteenth and early twentieth centuries, but that prosperous and hardworking citizens should be flung into unemployment and uselessness was something else altogether. The Great Depression sorely tested old assumptions, which held that voluntary rather than governmental regulation was best, that economic well-being flowed from personal virtue, and that government had a limited role in promoting the collective social welfare. The New Deal, which President Franklin D. Roosevelt initiated in 1933, stood for the proposition that lawmakers should provide a social and economic security net to catch the victims of an impersonal industrial order and that administrative agencies should bring a scientific coherence to the economy. Old assumptions gave way only grudgingly, however; a struggle ensued between the political and judicial branches with far-reaching implications for the substance of law, the conduct of legal institutions, and the character of American legal culture.

Law Reform and Legal Thought between the Wars

During the years between the wars, new patterns of legal reform and thought emerged, of which the American Law Institute and the legal realist movement were the most

-267-

important. Both drew strength from the Progressive legacy of an efficient and moral administration of public affairs, and both wrestled with the problem of how law should respond to social change. They diverged, however, in the means of reaching those goals, underscoring once again the persistent diversity in American legal culture.

Date: 2015-01-29; view: 687