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Crnh'r Arl/t/rF!1·sl; O,dill(, SUPREME COU R T HI S TORICAL SOCIET Y

HONORARY CHAIRMAN John G. Roberts, Jr., Chief Ju stice HONORARY TRUSTEE Sandra Da y O'Connor, Associate Justice-Retired CHAIRMAN EMERITUS Dwight D . Opperman CHAIRMAN Leon Silverman PRESIDENT EMERITUS Frank C. Jones PRESIDENT Ralph 1. Lancaster, Jt. VICE PRESIDENTS Vincent C. Burke, III Dorothy Tapper Goldman Mrs. Thurgood Marshall E. Ba rrett Pre[[yman, Jr. SECRETARY Gregory P. Joseph TREASURER Sheldon S. Cohen

TRUSTEES

George R. Adams Phillip J. Kessler Sa ll y Rider J. Bruce Alverson Augusr P. Klein Jonarhan C. Rose Perer G. Angelos Philip Allen Lacovara T eresa Wynn Roseborough Marrha Barncrr Jerome B. Libin Ri chord A Schneider David J. Beck Roben A. Lonerga n Barry F. Schwarrz Max W. Berger Joan Luk ey Jay A Seku low Nancy Bren nan Maureen E. Mahoney Nico le K. Seligmm Berh S. Brinkmann Gregory J. Maier Kelly J. Shakelford Nonnan M. Brorhers, Jr. Thurgood Marshall, Jr. Ka nnon K. Shanmuga m Leo nora Burger Timo rh y Mayopo ulos Sreven R. Shap iro Paul D. Clement Teri McClure Jero ld S. Solovy Charles J.Cooper Lee I. Mille r Ke nneth W. Starr Michae l A. Cooper Jeffrey P. Minear Marhew D. Sraver Harlan R. Crow Thomas Monaghan Mrs. Porrer Stewarr John J. Dal ron Michael E. Mone Carhl een Douglas Stone Drew S. Days, III Lucas Morel Mikel L. Srom Charles W. Douglas Charles Morgan Den ni s R. Suplee James C. Duff James W. Morris, III Larry Thompson Miguel A. Estrada James Mudd Sr. Seth P. Waxman Dav id Frederick John M. Na nnes Dan K. Webb Foster Friess Rick D. Nydegger W. W ayne Wirhers Gregory S. Ga llopoulos James B. O'Hara 'vV . Foster Wollen Ke nn erh S. Ge ller Theodore B. Olson Donald Wrighr Frank B. Gilberr Brian B. O'Neill Robert E. Ju ceam James L. Goldma n David Onorato Cmtr"ai Counsel Frank N. Gundlach Carter G. Phillips Wi ll iam J. Haynes, II Leo n Polsky Da vid T. Pride Benjamin Heineman James W . Quinn Exu"t;v, Director AE. Dick Howa rd Harry M. Reasoner Kath leen Shurtleff Robb M. Jones Bernard Reese Assistallt Director Brad S. Karp Charles B. Renfrew JOURNAl OF SUPREME C OUR T H ISTOR Y

200 9 VOL. 34 NO·3

PUBLICATIONS COMMITTEE James B. O'Hara, Chairmall Donald B. Ayer Louis R. Cohen Lucas Morel Luther T. Munford [).lVid O'Brim Carter G. Phillips E. Barrett Prettyman, Jr. Michael Russ D. C::;ricr Stephenson, Jr. Melvin 1. Urofsky

BOARD Of EDITORS Mclvlll 1. Urofsky, Chainnan Herman Belz DavId J. Bodenhamer Cralg Joyce David O'Brien Michael Pamsh L.A. Powe, Jr. Sandra VanBurkleo

MANAGING EDITOR Clare Cushman GENERAL STATEMENT

of the

J( was founded by

educational outreach program co Court, the Constltucion and the judIcial branch, The cosponsors Street Law Inc,'s summer insCltute, which trains school teachers to educate their scudents about the Come the Consricution. Ie also sponsors an annual [ccrute series at the Court as well as The mamtains its own educattona'! webs.ite and about important

h),-llIlll'nr'HV History of the .'",I1l·l'rT1P grant from the National Historical Publications and of the federal are often

'-'LlfnCH'C Court Decisions and Women's Rights: Milestones to law We the Students: Supreme Court Cases for and About School Students school textbook written by B, Raskin; and Black White and Brown: The Landmark School Case in Retrospect a collection of essays to mark the 50th anniversary of the Brown

rmllton annual viSlwrs. The has members whose finanCIal and volunteer the standing and ad hoc comminecs enables the onCY"!117"r1"!1 to function. These committees report to an elected Board of T [ustees and an Executive Committee, ri,e of whlch is deCISIOns and for the permanent staff. for additional information should be dIrected to the Street. N.E., D.C. 20003, JOURNAl OF SUPREME C OURT HISTORY

2009, vol. 34, no.

INTRODUCTION Melvin 1. Urofsky v

ARTICLES

Merryman and Milligan (and McCardle)

John Yoo 243

Swift and Erie: The Trials of an Ephemeral Landmark Case

A. F"c),tr 261

The Flag Salute Cases Reconsidered

Richard Morgan 275

\Vhy Dennis v. United States is a Landmark Case Michal R. Belknap

National League o{Cities and the Ephemeral Nature ofSignificant Supreme Court Cases

Eugene Hic.kok 30 3

The Judicial Bookshelf

D. Crier Stephenson, 315

CONTRIBUTORS 332

ILLUSTRATIONS m

Copyright 2009, by rhe Supreme Court Historical at 0p[Xl'man House 224 East Capitol Strfet, N.E. Washington, D.C 20003 ISBN 9781405199803 ISSN 1059-4329 Introduction Melvin I. Urofsky

This issue carries the talks oflast spring's Swifty" was as bad as it has been de- lecture series on landmark cases that perhaps and whether Erie really made such a are less monumental than have thought. difference. Certainly all of these cases receive extensive The Salute Cases are a of treatment not in my but in most on the First Amendment, but the collections of constitutional cases. Perhaps it question is whether significantly is time to rethink and our five contrib­ how the Court viewed the religion and utors at the least us something to think clauses. The twei cases, as Richard about. shows, make a wonderful story-but is it the John Yoo has been in the news a great story or the impact that has been the more last- deal for his views on what Supreme Court in cases mean in terms of limits on presidential No one knows more about Dennis v. power in wartime. The three cases that he dis­ United States (1951) than my good friend cusses have Michel and so I have to sit up and strict limits on the ,,-,V'lllJlla.l pay attention when he says that the re­ Professor Yoo suggests that this may not. be mains and should be considered a what the cases-all dating from the Civil War landmark case. Here I think Mike does what era-mean every good teacher wants to He On my first in "Federal Courts" in law makes his students (readers) rethink some of school, the asked us what the case their assumptions. of Erie Railroad v. Tompkins (1938) meant, When National League and after several of us mumbled things about came down in 1976, many people there no federal common law, he then and its author, Justice William H. said in essence, the rest of the semester as begun the reversal of four decades would be devoted to seeing how Erie affects of tilting the constitutional balance against current federal-court jurisdiction. The ques­ the states in favor of the national govern­ tion that asks is whether "Old ment. But although would continue

v vi JOURNAL OF SUPREME COURT HISTORY to a new constitutional federalism, Era" into the "Roberts Era" there National of Cities was soon reversed. wili no doubt be many more. Fortunately, we Eugene Hickok looks at the nature have the of Grier Stephenson to sort out of what, at the seemed a turning ooint in these books and to determine which ones are the Court's federalism worth our There have been a lot of books on the It is an this issue, and so, Court in recent years, and as we move from the as alwavs. enjoy! Merryman and Milligan (and McCardle)

JOHNYOO*

It has been said that only Jesus and have been the subject of more works than Abraham Lincoln. But that doesn't mean we shouldn't still trying to I am to be adding to that body of on the relationship between Lincoln, the Court, and the Civil War. The cases that I address here make up two- in Indiana, who was tried and sen­ thirds ofthe three "m"s ofthe Court's tence by a military commission-an old form encounter with the Civil War: Ex of ad hoc court established by com­ ryman, J 2 and manders for the trial of violations of the laws Card/e. All three case names bear the of war and the administration ID oc­ "ex because all three were brought on territory, behalfofcitizens detained the armed forces In these two cases, federal courts ordered ofthe Union, All three detainees release the release ofthe on the ground that under the ancient writ ofhabeas corpus, which the had exceeded its constitutional au­ the government to show the factual thority. Both opinions contained stirring lan­ and for detention to a guage about the vitality ofconstitutional judge, I will explain why the cases of the Civil even under the pressure of wartime and the War did not assume the landmark importance, need to maintain checks and balances on the their circumstances and ofa executive's powers. In Merryman,

/VIIJ'rIl1IfT v. McCulloch v. IVlIlrUIIJ'IJ/ (as Chief or Brown v Board 4 bers) nr""''''~t",rl Merryman was a Maryland militia officer suspected Confederates in Maryland and re­ who had blown up railroad between fused to civilian authorities without D.C and the North and was train- the approval of Taney had ordered secessionist troops in the earliest of General George commander of the Civil War. Fort to appear in his courtroom on of an insurgent May 1861, and to the imprisoned 244 JOURNAL OF SUPREME COURT HISTORY

Merryman with him. Cadwalader refused to tain and try Milligan, outside "the theatre of obey. Taney held the general in contempt of active military operations" where "the courts court, but the U.S. marshal could not gain en­ are open, and in the proper and unobstructed try to the fort. 5 exercise oftheir jurisdiction." Only ifa foreign Taney then issued an opinion ordering invasion were "actual and present," rather than Merryman's release. The Constitution has threatened, could martial law prevail.9 "been disregarded and suspended," Taney Nevertheless, neither Menyman nor Mil­ wrote from his courtroom in Baltimore, "by a ligan has secured a place in the firmament of mil itary order, supported by force ofarms." He great Supreme Court decisions. Men y man re­ warned that "ifthe authority which the Consti­ mains unknown to almost all but those scholars tution has confided to the jud iciary department who toil in the academic fields of the separa­ and judicial officers, may thus, upon any pre­ tion of powers or the early days of the Civil text or under any circumstances, be usurped by War. IO As we will see, it did little to delay the military power, at its discretion, the peo­ Lincoln from ordering the detention of sus­ ple of the United States are no longer living pected Confederate spies, sympathizers, and under a government of laws." Instead, Taney conspirators behind the Union lines. Merry­ proclaimed, "every citizen holds life, liberty man usually receives attention in the stories of and property at the will and pleasure of the the struggle between Unionists and Southern army officer in whose military district he may sympathizers in Maryland and the other bor­ happen to be found."6 He ordered the opin­ der states. Rarely do we learn about the legal ion and all of the proceedings sent to the new response to the opinion, which included out­ President " in order that he might perform his right presidential defiance and a critique of constitutional duty, to enforce the laws, by se­ the role of the Supreme Court in American curing obedience" to his order7 society. The Merryman opinion itself is rarely Milligan, decided five years later, reproduced in prominent casebooks used for sounded a similar theme. Justice David Davis the teaching of constitutional law, which usu­ declared that "[t]he Constitution of the United ally relegate the case to a one-paragraph note States is a law for rulers and people, equally in discussions of the debate over judicial in war and in peace, and covers with the shield review. of its protection all classes of men, at all Milligan, on the other hand, has seen a times, and under all circumstances." Reject­ burst of attention in this decade. This is en­ ing Attorney General James Speed's argument tirely due to the Bush administration's poli­ (and Lincoln's) that the war gave the execu­ cies in the war on terrorism and the associated tive branch the right to hold Milligan and try cases taken up by the Rehnquist Court. Aside him by a military court, the Court responded from this recent interest in the decision, Mil­ that " [n]o doctrine, involving more pernicious ligan usually goes unexamined and unremem­ consequences, was ever invented by the wit bered. In his Pulitzer Prize-winning The Fate of man than that any of its provisions can be ofLiberty: Abraham Lincoln and Civil Lib­ suspended during any of the great exigencies erties, historian Mark Neely titled a chapter of government." Claims to the contrary risked "The Irrelevance of the Milligan Decision."11 "anarchy or despotism," and led from a false Despite the opinion's broad language, for ex­ assumption, "for the goverrunent, within the ample, military trials continued throughout the Constitution, has all the powers granted to it, occupied South. As Neely observes, scholars which are necessary to preserve its existence; were no kinder to the decision. The first Amer­ as has been happi Iy proved by the result of the ican encyclopedia on political science, pub­ great effort to throw off its just authority."g lished in 1881, provides an entry on military The Court held that the military could not de­ commissions that holds that they can be used MERRYMAN AND MILLIGAN (AND McCARDLE) 245

directly contrary to who had joined or associated themselves with fessor John Burgess of Columbia enemy forces. Both Hamdi and the later Ham­ the political scientist on Reconstruc­ dan v. Rumsfeld17 take as the relevant tion at the turn of the century, wrote in 1890 gloss over the precedent. To­ that "it is devoutly to be hoped that the deci­ day's law schools do better. Most sion of the Court may never be to the leading casebooks strain of actual war. If, however, it should be, mary notes of no more than one or two pages. we may safely predict that it will Most concentrate on or the cases de­ be "12 cided in the last Professors probably Remembrance and usually occurs wartime. This should for the national come perhaps as no as that is the market in milk. context within which were decided. But McCardle, whose case the they usually do not have much effect. During logue to our story, was a Vicksburg, Mis­ World War I, neither nor Milligan sissippi newspaper editor tried by military had any direct relevance because no military commission for publishing "incendiary and commissions or detentions occurred on Amer­ libelous" articles and calling for violence ican soil. In World War Court against Union authorities. Because of Milli­ narrowed Milligan to its facts. In Ex parle gan, the Supreme Court of Quirin, the Court the detention jurisdiction in McCardle and prevented the and trial ofNazi saboteurs~two ofwhom were Court from the constitutionality of American citizens--on the orders ofPresident Reconstruction. Without going too Franklin Roosevelt. to the unan­ much into the details of the de­ imous Quirin stood for the cision may understand why proposition that the could not apply and lYHltt>'UlL were the landmarks of constitn­ the laws of war to civil ians in areas outside the tional law that never were. battlefield where the civilian courts remained open. But it did not to those covered by I. the laws ofwar. combatants. "Milligan, not being a part ofor associated with the armed Lincoln was confronted with national secu­ forces ofthe enemy, was a non-belligerent, not rity that no other American Pres­ 14 subject to the law of war," the Court held. ident has ever faced. This was true with the Milligan had no effect on the Court's decision Civil War in toto, the deadliest, most destruc­ in Korematsu v. United which tive war in our in which American FDR's order for and approval ofthe American and brother brother. military detention of about 120,000 Japanese It was also true in the personal sense. Americans for their disloyalty.15 for James Madison's flight from the in lack ofrelevance has continued the face of British invaders in I 14, the na­ to this day. In Hamdi v. Rumsfeld,16 a four­ tion's government has never been under direct Justice plurality upheld the detention of an al­ threat of immediate attack as it was leged in Afghanistan but a the Civil War. When the South Wash- U.S. citizen by birth, but required judicial re­ D.C. was the mid-nineteenth century view of the detention to protect version of West Berlin--an island of freedom the Hamdi plurality surrounded a sea of enemy On

JVlLltl,'UlL did not require a civil­ the one side lay Virginia, the very of ian trial because it did not apply to the You can see General Robert 246 JOURNAL OF SUPREME COURT HISTORY

E. Lee's ancestral home in Arlington from defenseless capital at any moment. It would downtown Washington. On the other side was not be until April 25 that reinforcements from Maryland, a slave state that had gone for John New York arrived, and only then by bypassing Breckinridge of Kentucky (as had all of the Baltimore to the east. states of the Deep South) in the 1860 elec­ Meanwhile, Lincoln and his advisors wor­ tion. The only rail links between the North and ried about how to keep Maryland in the Union. the nation's capital passed through Maryland. At first, Lincoln presented his homespun hu­ Throughout the Civil War, even as late as 1864, mor, but within it was a steely determination. Confederate forces periodically threatened the On April 22 , a delegation of the Baltimore capital with attack. YMCA came to see him and asked that he stop That precarious strategic situation made federal troop movements and make peace with it imperative that the Union secure the bor­ the Confederacy. Lincoln exclaimed that they der states such as Maryland. Lincoln report­ "would have me break my oath and surrender edly said, for example, that while he welcomed the Government without a blow." "There is no God's support, he must have Kentucky's. He Washington in that-no Jackson in that-no could just as easily have said that of Maryland. manhood nor honor in that." He explained that It was the necessity to ensure that Maryland in order to defend the capital, Union troops remained in the Union that led to Merryman. must cross Maryland. "Our men are not moles, When Fort Sumter fell , it appeared to North­ and can 't dig under the earth; they are not birds, erners that Maryland might join the states of and can 't fly through the air. "2o "Keep your the upper South in secession. Sumter surren­ rowdies in Baltimore," he warned, "and there dered on April 14, 1861; the next day, Lin­ will be no bloodshed." Lincoln took a prudent coln issued a proclamation requesting 75,000 attitude toward the state government. General­ volunteers to suppress the rebellion and en­ in-Chief Winfield Scott proposed to arrest the force federallaw. 18 Lincoln's intention to use Maryland legislature when they met on April force to compel the Southern states to return 26, rather than let them secede. Lincoln, how­ to the Union prompted Virginia, North Car­ ever, ordered him off to await the outcome olina, Tennessee, and Arkansas to secede. Sen­ of their deliberations; if they did vote to se­ timent to follow their example in Maryland cede, he ordered Scott "to the bombardment was strong. Maryland's governor and Balti­ of their cities-and in the extremist necessity, more's mayortelegraphed Lincoln to warn him the suspension of the writ of habeas corpus.,,21 to "send no troops here."19 Lincoln had even Lincoln's April 25 order appears to be the first had to travel secretly through Baltimore on his official mention of the idea of suspending the way to his inauguration. writ, and its tie to the other option of bom­ Maryland's resistance quickly turned vi­ barding Maryland cities reflects the extreme olent. Rushing to defend Washington, D.C. pressures on the President. Luckily, the legis­ on April 19, the Sixth Massachusetts regi­ lature did nothing. ment was attacked by a secessionist mob as it Nevertheless, concerns about rebel ma­ switched railroad lines in Baltimore. Four sol­ rauders and the security of the rail link between diers and a dozen civilians were killed. For the Washington and Maryland led Lincoln to take following week, Maryland rebels succeeded in that step of"extremist necessity" just two days isolating the capital from the North. The mayor later. In an order to General Scott, the President and chief of police in Baltimore ordered the declared that "[y]ou are engaged in repressing destruction of the railroad bridges running to an insurrection against the laws of the United the North. Secessionists cut the telegraph lines States." "If at any point on or in the vicinity between the North and the capital. Washington of the military line, which is now used be­ officials expected a Confederate attack on the tween the City of Philadelphia and the City of MERRYMAN AND MILLIGAN (AND McCARDLE) 247

Washington, ... you find resistance which ren­ He was a peculiar American breed of soldier- ders it necessary to 0U0f-''-''''' the writ of Habeas in the tradition of Colonel Alexan­ for the safety," Lincoln au­ der Hamilton and General Henry Halleck. His thorized Scott to do so. Scott John was a authorized the commanders in Pennsylvania, general in command of Pennsylvania troops Maryland, and to sus­ the Revolutionary War. He had served the writ if necessary.23 Neither Lincoln under at the battles ofTrenton and nor Scott publicized the order, nor did IS- Princeton. He was sue it as a proclamation, nor was it sent crossing ofthe to the courts or at the time.24 Lincoln get his artillery across the frozen river. His fa­ would publicly suspend the writ in Florida in ther, Thomas from the a public proclamation on May 10 25 University of Pennsylvania, entered the bar, John was one of the Maryland and reached the rank of major 111 com­ citizens swept up Union troops after the mand ofthe First Division of the of habeas corpus. He was a farmer militia during the War of 1812. The pressure and an officer in the militia. Union was on for son George. Born in Philadelphia officers accused him of drLI a secessionist in 1806, he went to Penn like his father and cavalry unit that had in the de­ was admitted to the bar at the old age struction of the railroad bridges and telegraph of 20. He became a and served with lines to the North in April. Troops arrested distinction in the Mexican-American War of him at his home on 1861 and im- 1848. His brother was a federal district nr1~r.r,PIi him at Fort 26 III at the outbreak of the Civil immediately petitioned for a writ of habeas War. corpus with Chief Justice Taney in Cadwalader sent an aide to court­ Chambers at the Court, rather than to room in full military to notify the Chief the federal court in Baltimore. In one of those Justice that neither he nor Merryman would happy historical Merryman's fa­ appear. The aide Cadwalader's re­ ther and had gone to Dickinson sponse, that "he is duly authorized by the pres­ together. 27 Chief Justice was ident of the United States .. to suspend the a Marylander who had become Andrew Jack­ writ of habeas corpus, for the public son's Attorney General and then of Although this was a and delicate tl11st" the the great Bank War. As and one to be exercised "with judgment and he had written the majority discretion," the General claimed his instruc­ ion in Dred Scott v. Sanford,28 which, by hold­ tions were "that in time of civil strife, errors, ing the of 1850 unconstitutional, if any, should be on the side of the safety of had hastened the coming of the Civil War. the country." He asked for a postponement of moved with alacrity to defend Mer­ the proceedings until he could receive instl11c­ rights, but with little success. He per­ tions from President Lincoln. 29 I11shed to Baltimore to take up the case, issued an immediate order rather than in the He issued a Cadwalader. But the U.S. marshal was denied writ the very next day to General George Cad­ entry at the of the fort. commander of Fort McHenry, to ap­ Taney was left to issue an which pear before him and to bring Merryman with to pull the heart out of Lincoln's en­ him. response to the fall of Fort Sumter. Cadwalader was no The Constitution's discussion of the suspen­ dier, but the son of a sion occurs in one sentence, in Article I, Sec­ phia Law and war ran in his blood. tion 9, and it does so in the voice: The 248 JOURNAL SUPREME COURT HISTORY

When Chief Justice Roger Taney ordered General George Cadwalader, commander of Fort McHenry, to appear in his courtroom on May 27, 1861, and to bring John Merryman with him, Cadwalader refused to obey. Taney held the general in contempt of court, but the U.S. marshal was unable to gain entry to the fort (pictured), where Merryman, a Maryland militia officer accused of sabotaging railroad bridges in Union territory, was being detained.

"Privilege of the Writ of Habeas Corpus come to office the Supreme Court shall not be unless when in Cases for its decision in Dred Scott. the of Rebellion or Invasion t.he public he had that may require it." Taney held that the Suspen­ the Court's decision only applied to the slave sion Clause's in the Article where and owner in the case and not to any and the com­ other cases. In his first Lin­ mentary since ratification, that coln declared that "If the policy of the govern­ only could suspend the writ. If mil­ ment, upon vital questions, affecting the whole itary detention without trial were people, is to be irrevocably fixed decisions to continue, wrote, "the of the Court ... the wi II have United States are no ceased to be their own rulers, having to that extent, practically their government, "every citizen holds into the hands of that eminent tribunal.,,3o The at the will and of the Court had lost immense at least with opinion not only found RepUblicans, who rejected the idea unconstitutional, but also supremacy behind the decision in Dred Scott questioned the bases for Lincoln's and the federal courts other unilateral responses to such as and the South. the cal up of volunteers, the imposition of For Taney, however, the President's oath to a blockade on Southern ports, and the with­ uphold the Constitution him to carry drawal of funds from the to raise an out the Court's orders. The army. man decision was another declaration of Taney's decision in Merryman was an at- dicial supremacy in interoreting the Constitu­ not on Lincoln's of the tion, to be writ, but upon the President's to inter­ not from President pret the Constitution as well. Lincoln had Andrew Jackson's former Attorney General. MERRYMAN AND MILLIGAN (AND McCARDLE) 249

wanted to dramatize the con­ to any unconstitutional action of the govern­ flict between the President and the ment, but an effort to overturn the results of He before a crowd of democratic elections and a of the Baltimore courthouse steps to receive General constitutional process of discussion, Cadwalader's response, and declared that the and the ballot box."32 In response, Lincoln was defying the law and that too, argued, "no choice was left but to call out be under military arrest soon, the war power of the and so to Public response to Taney's decision in the resist force, employed for its destruction, by North was, for the most part, "The force, for its " Lincoln claimed Chief Justice takes sides with he had responded with the support of public around them the sheltering opinion. "These measures, whether strictly the " the New Yurk legal or not, were ventured upon, under what the North's most influential newspaper, thun­ appeared. to be a demand, and a dered. "When treason stalks abroad in arms, public let Judges to men capa­ ble of detecting and it. It claimed avoided the that Taney had engaged in "a gross perver­ unconstitutionally, but justified his actions on sion of [the Court's] powers to employ [the Congress's political SUpp0l1 after the fact. "It wfi t of habeas corpus1 as the shield is believed that ofrebels against a constitutional the constitutional competency of It concluded that "[ n]o whose heart was soon enacted a statute that summer to the Constitution would have such war the aid and comfort to enemies." Nor did Lincoln's the New York Times much to actions taken that the army the elderly Chief Justice: "Too feeble to wield and navy of the United States, and out the sword against the too old and to the militia or volunteers from palsied and weak to march in the ranks of re­ approved and In all bellion and fight the he uses the and made valid," as powers of his office to serve the cause of the had been issued and done" by 33 traitors," A few organs supported Lincoln directly responded to the Chief Taney, concluding that Lincoln's ac­ too, but not by name, He acknowl­ tions might be necessary, the Court should not that the "legality and of the bless them, but instead should enter the vio­ had been questioned, and that the lation of the Constitution on the record, "to "attention of the had been directed stand as a in more times to his to take care that the to come, that here is an act, the necessity of laws are faithfully executed. He made a nod which was the and which is not toward the idea that the ar.\!t'r1nmt'nt could vi­ to be made a orececlenr at any time when the olate a single law, if that act would save the public is less pressing."31 "Are all the but one, to go unex­ Lincoln answered Taney-and the and the government to pieces, widespread claims ofexecutive dictatorship­ lest that one be violated?,,34 Lincoln argued in his message to the special session of that he would break his oath to preserve, pro­ Congress on 4. Lincoln stressed that the tect, and defend the Constitution if he blindly '"ntpr!pr"f'\/ had fired the first before one provision above the survival of the or.\Jt'r:nmt'nt had taken But Lincoln was too a lawyer threaten slavery. The to rely solely on claims of a Lockean preroga­ was not a response tive. He claimed that the Clause's 250 JOURNAL SUPREME COURT HISTORY

line" to Maine. Lincoln delegated to Secretarv of State William Seward the military arrests in the first year of the war. Se­ ward told the British ambassador to the United States that he could "ring a little bell on desk" and arrest any citizen in the na­ ofEngland do as much?" this anecdote, the most reli­ able estimates indicate that the government de­ tained 864 halfwere from the border states, while a third were Southerners-until the War Department took over detentions in 1862. Lincoln would sus­ pend habeas 24, 1862, two the prelimi­

Taney's decision in Merryman was an attack, not just nary Proclamation, in a move on President Abraham Lincoln's suspension of the to prevent opposition to the first writ of habeus corpus, but upon the President's right tion law. 36 would not enact a law to interpret the Constitution. Taney (pictured) clearly wanted to dramatize the conflict between the Presi­ authorizing the of habeas corpus dent and the judiciary: He chose to appear before a and a of review until March crowd of 2,000 on the Baltimore courthouse steps to 3, I curing the defect claimed by receive General Cadwalader's response. Historian James G. Randall, author of the widely read Constitutional Problems tense left open who could suspend the under Lincoln, estimated that the Lincoln writ. "As the was plainly made for administration detained I a dangerous emergency, it cannot be believed people.37 more recent work puts the the framers of the instrument that in number at about 12,600, though the records every case, the should run its course, are 38 until could be called together; the Supporters of the Union came to believe very of which be prevented that these measures had saved Maryland from . by the rebellion." Lincoln promised a secession. had become a footnote to General Edward the start of the war, rather than a landmark for the policies it. Writing on Menyman, Harvard his­ torian Charles Warren observed that the lack branch of the government was co-ordinate and of popular for the Court could independently exercise its unique con­ the Chief Justice. Writing in I stitutional powers free from the orders of the spaired that the Court would not "ever be again other.35 restored to the authority and rank which the lost in his confrontation with Lin­ Constitution intended to confer upon it." He coln. The administration continued the system concluded that the of the detentions. Later that summer, lin­ power over the civil seems to be coln ordered the detention of Maryland and the public mind has the step he would not take in sanctioned it." Nevertheless, Warren argued, if the administration expanded the au­ Taney had lived another four years, he would thority of to suspend habeas corpus have seen his opinion followed to the full in from all the way up the "military Milligan. "Never did a fearless MERRYMAN AND MILLIGAN (AND McCARDLE) 251 receive a more swift or more vindi­ lenient conditions for readmission cation, Warren wrote39 of the Southern states to the Union. He de­ But did he? clared the war over in December 1865 and allowed Southern states to re-establish gov­ ernments, sometimes with fonner Confeder­ II. ates in of power. Johnson also of­ Milligan was not just a vindication of Mer­ fered amnesty to those who swore an oath ryman, but a dramatic of it Mer­ of loyalty to the Union. He did not demand ryman had demanded that of the Southern states any more ~")l"'C''''JI the writ of habeas corpus. Milligan addressed for the freedman than ratification of the Thir­ a broader subject: Even if the writ were sus­ teenth Amendment~meaning that the rights pended, could the President and Congress sub­ of the former slaves would be ject civilians behind the lines to military trials, state Iaw--':and did not ask states to grant the when the civilian courts were open and func- freedmen suffrage. Southern states Unlike A1iIligan did not by adopting new constihltions that reach the Justices under the pressure of se­ the end of but little more. Their cession and sabotage, but carne up after the latures " which assassination of President Lincoln and Lee's sought to keep freedmen in a state of surrender at Appomattox. Yet IVlLlI.t"Llfl drove second-class their the courts into conflict once more with the economic and They held elec­ branches; this time not with the Pres­ tions that sent and but with including former Confederate Vice President Milligan took in the midst of inter- Alexander and former and branch strife over the fuhlre of Reconstruc­ officials of the to the of tion, The issues were complex and centrally the Congress in December 1865. Johnson involved the Constitution, If the a swift reunion of the sundered Union were considered an enemy nation, the laws of the powers of Lincoln's energetic ex­ war permitted territory to be sub- ecutive, which would set Reconstruction pol­ to occupation by Union military authori­ icy, to restore the respect for state sovereignty ties, But if the Southern states had never left of the antebe Ilum Constitution, the Union, from the be­ Congress would have little of it. lwo­ ginning, then could claim an immediate thirds Republican, refused to seat restoration of their could the elected representatives of the new South­ pass their own run their own courts ern Radical wanted and and exercise their in the fed­ to provide the freedmen with a level of eco­ eral government, which could have included nomic and political equality denied them voting on the appropriations for the army and the Southern governments, In 1 blocking to protect the new freed­ enacted the Civil Rights and Freed­ men, In the circumstances of man Bureau bills over President Johnson's the Civil War, there were no rules for the read­ veto. Radicals also believed that military gov­ mission of rebellious states to the Union or ernment had to continue in the South because how much the national government Union troops were the surest for the could exercise in occupied 40 and rights of the freedmen when state Milligan came to the Court as Presi­ governments in the South could not be trusted. dent Andrew Johnson and radical President Johnson went to the country to op­ III were their fateful pose the but the 1866 midterm elec­ over Reconstruction policy, Johnson sought tions gave them a tremendous In less 252 JOURNAL OF SUPREME COURT HISTORY than two years, they would use their majority to place the South under military government, strip the Supreme Court of jurisdiction, and bring Johnson within one vote in the Senate of being the only President impeached and re­ moved from office. Milligan came to the Court in the midst of this strife and had a significant impact on the struggle, but its origins reached back two years to the tentative months when Abraham Lin­ coIn's re-election had been in doubt. Lambdin Milligan was an Indiana Copperhead Demo­ crat who wanted peace with the Confederacy. In an odd coincidence ofhistory, he had joined the Ohio bar and placed first in the same ex­ amination as Edwin Stanton, who would be­ come Lincoln's Secretary of War and would approve Milligan's detention and conviction. Milligan fervently believed that secession was legal and that Lincoln and the Union had over­ Lambdin Milligan (pictured) was an Indiana Copper­ stepped their constitutional authority in wag­ head who fervently believed that secession was legal ing the Civil War. He took an active role in and that Lincoln and the Union had overstepped their Democratic politics in Indiana and ran for the constitutional authority in waging the Civil War . party's 1864 nomination for Governor, but his strict anti-war position IOSt. 41 His opposition apparently went beyond Morton ordered the arrest of Milligan and his political measures. Milligan joined secret fellow conspirators. Morton appears to have Democrat societies known as the Order of urged a military trial because its proceedings American Knights and the Sons of Liberty. would run from September to December, at the With Indianapolis printer Harrison Horton same time as the election season.42 Success­ Dodd as the Grand Commander, Milligan was fully draping Indiana Democrats in the man­ appointed a "major general" of the Sons of tle of disloyalty, Morton won re-election by a Liberty, along with a few other prominent comfortable margin in October, as did Lincoln Democrats in the state. Although they planned in November, no doubt helped more by Sher­ attacks on prisoner of war camps, rebellion man's capture of Atlanta than anything else. against Union authority, and establishment At the end of the proceedings, a military ofan independent Northwestern Confederacy, commission of seven army officers convicted none of these plans came to fruition . That did four of the conspirators. It sentenced three of not stop Dodd, however, from accepting money them, including Milligan, to death. It had not from Confederate spies in Canada to pay for helped that the ringleader, Dodd, escaped from the planned revolt. Acting on a tip by an infor­ his room above the post office and made it mant, Union officers found 400 revolvers and to Canada, and that one of Milligan's com­ ammunition at Dodd's printing shop. rades had turned state's evidence. With his The conspiracy suited the needs of the re-election secure, however, Governor Morton powerful Republican Governor, Oliver Mor­ decided to recommend commutation of their ton. Worried about his re-election and the fate sentences to the military authorities, who re­ of the Republican party in the 1864 elections, mained unmoved. His opponent in the election, MERRYMAN AND (AND McCARDLE) 253

vnm:I.!OQr;."I PIUJ8ECUTION OF PEACE I Copperheads (portrayed negatively in the cartoon shown here) were Northerners who sympathized with the Confederacy, Milligan and his co-conspirators planned attacks on prisoner of war camps and hoped to estab­ lish an independent northwestern Confederacy. Although they accepted money for the planned revolt from Confederate spies, their plans never came to fruition,

Democrat Joseph E. McDonald, a former con­ In The next day, the two fed­ gressman and state attorney general,journeyed eral on circuit-Justice David Davis to to personally meet with Lincoln and Judge David McDonald-sent a remark­ to for cleme'ncy. Lincoln read over the able letter to the President. They asked that trial found some errors, and told Mc­ Johnson execution of the sentence un­ Donald that there would be "such a til the federal courts had time to determine over yonder" in Virginia-anticipating Lee's whether commissions surrender to Grant-that "we shall none of us over civilians unconnected to the want any more killing done."43 He promised like Chief Justice Taney, they did not appear McDonald that "I '11 keep them in prison awhi Ie to believe that they had the to or­ to them from killing the Government."44 der the President to suspend the executions. Lincoln's assassination on Good April they argued that allowing the execu­ prevented him from his tions would open the governn1ent to the President who had con­ of and would be a stain on the na­ vened a military commission to quickly try tional character. They also doubted the wisdom and execute the was in no mood for of the did not "the mercy and approved the death sentences of of these men" or that their trial "had a and his co-defendants. effect on the de- On May 10, Milligan filed for a writ of habeas corpus in the federal circuit court wicked conspiracy against our amlP,',nmpnt MERRYMAN AND MILLIGAN (AND McCARDLE) 253

Copperheads (portrayed negatively in the cartoon shown here) were Northerners who sympathized with the Confederacy. Milligan and his co-conspirators planned attacks on prisoner of war camps and hoped to estab­ lish an independent northwestern Confederacy. Although they accepted money for the planned revolt from Confederate spies, their plans never came to fruition.

Democrat E. a former con­ 10 The next day, the two fed­ gressman and state attorney eral judges on circuit-Justice David Davis to to meet with Lincoln and Judge David McDonald-sent a remark­ to for cleme·ncy. Lincoln read over the able letter to the President. asked that tria! found some errors, and told Mc­ Johnson execution of the sentence un­ Donald that there would be "such a til the federal courts had time to determine over yonder" in Virginia-anticipating Lee's whether commissions had jurisdiction surrender to Grant-that "we shall none of us over civilians unconnected to the military. Un­ want any more killing done."43 He promised like Chief Justice Taney. they did not appear McDonald that ''I'll them in awhile to believe that had the to or­ to them from the Government.'>44 der the President to suspend the executions. Lincoln's assassination on Good Friday, April Instead, argued that allowing the execu­ 14, 1865, him from keeping his tions would open the government to the promise. President Johnson, who had con­ of oppression and would be a stain on the na­ vened a military commission to quickly try tional character. also doubted the wisdom was in no mood for of the policy. The did not question "the the death sentences of guilt of these men" or that their trial "had a Milligan and his co-defendants. most effect on the public mind de­ On 10, Milligan filed for a writ veloping and a most dangerous and of habeas corpus in the federal circuit court wicked 254 JOURNAL OF SUPREME COURT HISTORY

father of the Field Code that was the basis of American civil procedure in the nincteenth century. As Milligan's chances rose with these wise choices, the government's odds dropped with its own. In addition to Attorney General T Speed, who was not thought of as an able oral advocate, the government added Henry Stan­ bery, who would replace Speed as Attorney General that summer and would be nominated by Johnson to a seat on the Supreme Court (Congress reacted by decreasing the size of the Court by one seat); and, inexplicably, Gen­ eral Benjamin Butler, a Massachusetts lawyer who had won notoriety for his tough occupa­ tion government of the City of New Orleans. For example, Butler had issued General Order No. 28, which declared that any woman who showed disrespect to a Union soldier or offi­ President Andrew Johnson (pictured), who had con­ cer would be treated as "a woman of the town vened a military commission to quickly try and ex­ plying her avocation." He would be known ecute the assassins, was in no mood for mercy and approved the death sentences of Milligan and his co­ as "Beast Butler" throughout the South for defendants. But he soon commuted it to life impris­ decades. After an unsuccessful military career, onment so as not to make them martyrs. Butler would be elected to the House ofRepre­ sentatives and would be the lead House prose­ cutor of the Johnson impeachment before the Rather, they argued that the trial had achieved Senate. its purpose and that Indiana was now "quiet The transcript of oral argument is lengthy, and peaceable." Executing Milligan and his occupying 62 pages of the U.S. Reports. Each comrades now would only make them "po­ side received three hours of time-not exactly litical martyrs.,,45 Edwin Stanton also put in the days accorded Daniel Webster, but a luxury a plea for his former bar mate. Johnson ulti­ under today's standards. On April 3, 1866, the mately commuted Milligan's sentence to life Court announced that it was ordering the re­ imprisonment. lease of Milligan, who went free on April 10. The two judges on the circuit sent the case However, the Court did not release its opin­ to the Supreme Court, which heard oral ar­ ion until December 14. Justice Davis, who had guments on March 5, 1866. Milligan's coun­ objected to the military commissions as the sel added three shrewdly chosen co-counsels: circuit justice for Indiana, wrote for the Court Jeremiah Black, who had been chief justice of that these new tribunals had no jurisdiction the Pennsylvania supreme court and Attorney over a citizen who was not a resident of one General and Secretary ofState in the Buchanan of the rebellious states, not a prisoner of war, administration and had been defeated for con­ and not in the armed forces of the Confed­ firmation to the Supreme Court in 1861 by eracy or the Union. The laws of war, which one vote; James A. Garfield, a brigadier gen­ applied to combatants and the battlefield, held eral during the opening years of the Civil War no sway over "citizens in states which have at age 3 I, Republ ican congressman from Ohio, upheld the authority of the government, and and future President; and David Dudley Field, where the courts are open and their process brother of sitting Justice Stephen 1. Field and unobstructed. ,,46 The Bill of Rights demanded MERRYMAN AND MILLIGAN (AND McCARDLE) 255 that receive a trial in federal and to limit it in such broad terms, immedi­ court for violations of civilian law, and these plunged the Court into the maelstrom of provisions could not be waived in the face of Reconstruction politics. When the Court an­ emergency. "Wicked men, ambitious nounced the opinion in its implica­ with hatred and contempt may tions for plans for Reconstruc­ fill the by Washington and tion were obvious to all. Milligan su~sgeste:d is and the that any continuation of military Vv'_U"'''''V' calamities of war again befall us, the dangers in the South was unconstitutional, and it to human are frightful to naled that Republicans would have to count Neither the President nor Congress, the The Re­ could impose martial law that overrode the publicans Milligan as constitutional protections in a criminal trial, a challenge, with Thaddeus Stevens except in cases of actual invasion in which the it to be a "most and deci­ "courts and civil authorities are overthrown.,,47 sion" that "has rendered immediate action by What was for the occupation upon the question of the establish­ Davis concluded, was not good for Indiana. ment of in the rebel States ab­ Chief Justice Salmon P. Chase wrote a solutely indispensable.,,49 "In the conflict of three other Jus­ thus the States which sus­ fell within the tained the cause of the Union will Habeas which had au- an old foe with a new York Times. "The we corpus. The Act to throws the great of its influ­ the courts with lists ofprisoners, and to release ence into the scale of those who assailed the the if a grand jury did not choose to Union and step after step impugned the consti­ indict them of a crime. had not been tutionality of everything that was done indicted a jury, so he was entitled to uphold it."50 Milligan to Dred under the statute to go free. Chase refused to Scali, s Weekly declared that "the de­ reach the question ofwhether the President and cision is not a judicial opinion; it is a political 'r.nrcr.>CC together could authorize the use of act." The New York Herald raised the idea of military commissions in wartime. "When the the Court: "a reconstruction of the nation is involved in war, and some portions of Court, to the paramount de­ the country are invaded, and all are exposed to cisions of the war, looms up into bold it is within the power of to on a of vital ,,51 determine in what states or district such Just as Republican papers attacked Alit­ and imminent public danger exists as ligan, Democratic papers it. The Na­ fies the authorization of military tribunals.,,48 tional which often Chase would have allowed to autho­ the views of the Johnson rize tribunals in wartime even when attacked the Court's critics: "[A]s in war the courts were open: a he these monopolists of patriotism denounced because the courts those who the sacred liberties of the to stop threatened or judicial officers citizen as by the Constitution, so might be aligned with the rebels, now in the midst of peace, assail those It was not the that who maintain the of the States as guar­ objectionable, but rather the anteed by that same instrument." Democrats of the Court's opinion. similarly interpreted as presented in Milli­ a quick readmission of the Southern gan, Justice Davis's desire to address its scope, states to the Union and decried the Republican 256 JOURNAL OF SUPREME COURT HISTORY

vitriol hurled at the Court. Aaron Harding also claimed that military occupation of the criticized the Republicans for their "attempt South violated Milligan. Congress overrode to ridicule and contempt the last refuge of Johnson's veto on the very same day by far liberty [that is, the Supreme Court] for the more than the two-thirds majOl'ities required: oppressed."s2 Michael Kerr went further, ac­ 13 5 to 48 in the House and 38 to lOin the cusing the Republicans in Congress of at­ Senate. tempting to "govern the country without the Enforcement of the Reconstruction Act aid of the unrepresented States, the Constitu­ produced the first demonstration ofMilligan's tion, or the Supreme Court."S3 President John­ desuetude, as military commissions continued son did the Court no favors when, on the an­ in the South. From the end of the war until niversary of the Battle of New Orleans, he January I, 1869, the Union army conducted toasted the Supreme Court before a Demo­ 1,435 military trials, although the number of cratic party dinner as "the great conservative such trials steadily declined throughout this power of the government; never more needed period.s4 Some of them involved cases from or better appreciated than now." His annual the war, some from Reconstruction; some were message to Congress, delivered in December ofSouthern civilians, some were ofUnion sol­ 1866, had asked for the immediate readmis­ diers. The Reconstruction Act allowed military sion of the Southern states because they had commanders to use commissions to try civil­ met his condition of adopting the Thirteenth ians when the civilian courts were thought to Amendment. The new Republican majorities be inadequate. Military governors became em­ ignored him. Now Johnson and his Democrat broiled in reviewing state enforcement of the allies sought to project the image that the Court laws governing everyday life. They suspended was on their side. various laws, such as debt collection, that were The possibil ity that the Court would throw being enforced in a discriminatory manner by its weight behind Johnson worried congres­ state officials and substituted military enforce­ sional Republicans. They nonetheless pro­ ment when state authorities applied criminal ceeded with their plans for Reconstruction and civil laws unjustly. This state ofaffairs did and, on March 2,1867, enacted a Reconstruc­ not end until all ofthe Southern states rejoined tion Act that required the adoption of black the Union.ss Some lower federal courts relied suffrage, new constitutions adopted by ma­ upon Milligan to stop these military commis­ jority vote, and ratification of the Fourteenth sion trials, but the record shows that they were Amendment before the Southern states would unsuccessful in preventing their widespread regain their representation in Congress. To use in the South 5 6 guarantee the equal rights of the freedman, In the first year of Reconstruction, the Congress created five military districts in the Supreme Court studiously refused to entertain fonner Confederacy to provide military pro­ cases by states such as Mississippi and Geor­ tection. The army would have the duty to pro­ gia challenging the constitutionality of mili­ tect all persons; to suppress insurrections, dis­ tary government in the South. One might say order, and violence; and to punish those who that Congress had even sought the coopera­ disturbed the peace. A supplementary Act gave tion of the other two branches in Reconstruc­ the military commanders the authority to re­ tion: The reliance on military governors rec­ move state officers who impeded Reconstruc­ ognized President Johnson's paramount role, tion. Johnson vetoed the Act and in his mes­ and Congress had actually expanded habeas sage argued that with the surrender ofthe Con­ jurisdiction in a Febl1lary 1867 law designed federacy, the war powers of the government to allow freedmen to seek the protection of had ended and the Southern states had resumed the federal courts 57 But that changed with the their place in the constitutional structure. He case of Ex parte McCardle. Colonel William MERRYMAN AND MILLIGAN (AND McCARDLE) 257

McCardle, the editor of the Vicksburg Times, ident Johnson's veto and removed the Supreme vituperatively attacked Reconstruction. In one Court's appellate jurisdiction over habeas cor­ editorial, he called the military governors pus appeals under the 1867 statute. Only after "each and all infamous, cowardly, and aban­ Johnson's acquittal and Grant's election to the doned villains," and in others he called for re­ presidency did the Court announce in 1869 that sistance to the military, Southern government it accepted the stripping of its jurisdiction and by whites only, and opposition to the Four­ would not reach the merits of the McCardle teenth Amendment. Union officers arrested petition. Thus, Milligan became the motivat­ McCardle on November 8, 1867, and brought ing factor that led to the only clear example him before a military commission to face trial of congressional jurisdiction-stripping in the for inciting insurrection, disorder, and vio­ Court's history.6l lence and impeding Reconstruction. When the federal district court denied McCardle's peti­ III. tion for a writ of habeas corpus, he appealed to the Supreme Court under the new 1867 habeas In concluding, it is worth putting forth some law. hypotheses about why the Court's decisions in When the Supreme Court announced that Merryman and Milligan sparked such amazing it would hear Ex parte McCardle in January reactions from the political branches. In Mer­ 1868, it was apparent that a test of the con­ ryman, Chief Justice Taney issued a writ to stitutionality of the Reconstruction Act was President Lincoln, who refused to follow it. It on the way. It was no coincidence that McCar­ is probably the only unambiguous example ofa dle was represented by Milligan's lawyers. The President ofthe United States refusing to obey Johnson administration made its views known an order of the federal judiciary. Despite the by refusing to have the Attorney General de­ praise for Milligan in later years, it prompted fend the statute. General Grant arranged for Congress to strip the Court of jurisdiction. the Army to be represented by Lyman Trum­ Along with the Jeffersonian impeachment of bull and Matthew Carpenter, two Republican Justice Samuel Chase and President Franklin Senators who had played important roles in the Roosevelt's Court-packing plan, these Civil consideration of the Reconstruction Amend­ War episodes remain among the most direct ments to the Constitution.58 To illustrate the challenges to the Supreme Court's authority depths to which the Court had become em­ by the elected branches of government. broiled in the fight over Reconstruction, one Most of the blame surely lies with the of the days of oral argument was interrupted Justices themselves. In Milligan, the major­ when Chief Justice Chase had to leave to pre­ ity could have resolved the case on the nar­ side over the organization of President John­ row statutory ground that the Habeas Corpus son's impeachment trial in the Senate.59 Act required release, an outcome that would Reports from oral argument suggested probably have received the approval ofa unan­ that the Court was sympathetic to McCardle's imous Court. Instead, Justice Davis's majority argument that the Reconstruction Act violated stretched to address a constitutional question the precedent set by Milligan . Congress re­ with obvious implications for the great strug­ sponded swiftly. In January and February of gle between President Johnson and the Re­ 1868, it had considered legislation requiring construction Congress. The Court may have that six Justices agree before the Court could believed that it was helping to settle the mat­ strike down federal legislation. The House ter, but it only contributed to the political in­ passed the bill, but the Senate could reach no stability and constitutional conflict over the consensus.60 However, after the end oforal ar­ occupation of the South. Its views did not pre­ gument in McCardle, Congress overrode Pres­ vail, as military government continued over 258 JOURNAL SUPREME COURT HISTORY the former states of the Confedera until the to resolve the constitutional ques­ of 1877 removed Union troops in tion of habeas of the for finding Republican Rutherford circumstances. the winner ofthe 1876 elec­ Despite their different both Mer­ tion. The Court would have been better served ryman and Milligan have that in common. by following the doctrine The terrible divisions of the Civil and best by Justice Brandeis in Ashwan­ the Court's role in hastening its com­ derv. had not yet weaned the Justices from avoid constitutional lIUC:>LlUU:'. their attachment to judicial supremacy. Mer­ only on the application of the Habeas lyman and Milligan displayed a remarkable Act would have kept the Court out of lack ofdeference to the branches dur­ a constitutional confrontation between the po­ ing wartime. War is the area where the struc­ litical branches that it could not settle. tural advantages ofthe President and tells a different story. Like are at their height, and where the courts have Davis, ChiefJustice sought to insert the the least 63 War involves unpre­ federal courts into the dictability and uncertainty, unforeseen circum­ troversy ofthe day. stances, difficult tradeoffs between tory of overreaching. He had wanted to settle ing and-in a civil war-the highest the question in the territories in Dred of stakes. While some believe that the courts but instead only accelerated the move­ should still decide cases ment toward Civil War. Unlike Milligan, how­ ernment ever, no obvious statu­ wartime conditions, this ignores the tory or jurisdictional means to evade the con­ costs of judicial intervention, not only to the stitutional question of whether the President war effort but to the Court. and Mil­ could suspend habeas corpus during a ligan reveal the wages of judicial supremacy, of rebellion without the consent of not for the President and but Merryman was an American citizen held by for the institution of the SUDreme Court the executive branch without criminal as welL he had a right to to a federal court to re- the government to the legal basis ENDNOTES for his detention. mistake was that he gave Lincoln no time to organize the federal 'The author thanks Janet Galeria and Ben Petersen for outstanding research assistance. An earlier version ofth15 government's response to the unprecedented essay was delivered as part of the 2008 Leon Silverman of secession. The Civil War was a lecture series; am grateful to the Supreme Court Histor­ unlike any that the nation had faced ical Society for extending all invitation to take part ill the before or has faced since. series. sought out a constitutional confrontation with I 17 F. Cas. 144 (C.C.O.Md. 1861) (No. 9487). the executive branch the chaotic cir­ 271 U.S. (1866). 374 U.S. (7 WaIL) (1869). cumstances of the first weeks of the war, when U.S. 137 (1803); U.S. 316 (1819); 347 U.S. 483 the very security of the capital was at stake. ( 1954). It would have been understandable and reason­ "These are described in parle Merryman. 17 E able if Taney had President Lincoln the Cas. 144 (C.C.O.Md. 1861) (No. 9487). No good his­ benefit of the doubt and allowed the tory focuses on John Merryman and the history of the case, aside from a helpful essay See Arthur T Downey, time to restore the of the Baltimore­ "The Conflict between the Chief Justice and Ihe Washington, D.C. area before forward Executive: parle Merryman," 1. S Ct. Hist. 262 with however, beJieved that (2006). There useful essay on lvfilligan, Curtis A. the Supreme Court had a final and immediate Bradley, "The Story ofEx parte Milligan: Military Trials, MERRYMAN AND MILLIGAN (AND McCARDLE) 259

Enemy Combatants, an d Congressional Authorization," in 29Quoted in Ex parle Merryman, 17 F. Cas. 144, 146 Christopher H. Schroeder & Curtis A. Brad[ey eds., Pres­ (CCD.Md. 1861) (No. 9487). idential Power Stories 93 (2008), and a description in 30L incoln, First Inaugura[ Address, Mar. 4, 1861, in 4 James F. Simon, Lincoln and Chief Justice Taney [84­ Works of Lincoln, supra note 18, at 262. 98 (2006). The cases receive attention in Danie[ Farber, 3I Quoted in 3 Charles Warren, The Supreme Court in Lincoln's Constitution (2003), and J.G. Randall, Consti­ United States History 91-93 ([ 922). tutional Problems under Lincoln (1964). On the e"pe­ 32Message to Congress in Special Session, Ju[y 4,1861 , rience of Mary[and at the outbreak of the Civil Wa r, see in 4 Works of Lincoln, supra note 18, at 421. Dean Sprague, Freedom under Lincoln 1-44 (1965); and ))Act of Aug. 6, 1861, 12 Stat. 326. Charles B. Clark, "13a[timore and the Attack on the Sixth 34 Message to Congress in Special Session, July 4, 1861 , Massachusetts Regiment ," Apri[ [9, [86 [, 56 Maryland in 4 Works of Lincoln, supra note 18, at 421. Historical Mll.ljllzine 39 ([ 961). 35 100p. Att'y Gen. 74(1 86 1). 6 Merrymlln , 17 F. Cas. at [52. 36 Proclamation Suspending the Writ of Habeas Corpus, 7/d at 146. Sept. 24, 1862, in 5 Works of Lincoln, supra note 18, at s Milligan, 71 U.S. at 76. 433. See Neely, supra note II, at 51-74. 91d. at 80. 37Neely, supra note 24, at 115. 10 For the most penetrating recent work, see Michael 38 1d. at 130. Stokes Paulsen, "The Most Dangerou s Branch: Execu­ 39 3 Warren, supra note 3 1, at 96. tive Power to Say What the Law Is," 83 Ceo. L. J 217 40for a revi ew of the issues, see Eric Foner, Recon­ ( 1994); Michael Stokes Paulsen, "The Men yman Power struction: America's Unfinished Revolution, 1863-77 and the Di[emma ofAutonomous Executi ve Branch Inter­ 1 7~280 ( 1988); Mi chael Les Benedict, A Compromise pretation," 15 Cardozo L. Rev. 81 ( [ 993). of Principle: Congressional Republicans and Recon­ II Mark Neely, The Fate of Liberty: Abraham Lincoln struction, 1863~9 (1974); Harold M. Hyman, A More and Civil Liberties 160-84 ( 199 [). Perfect Union: The Impact of the Civil War and Re­ 12 1d. at 181. construction on the Constitution 282-306 ( 1973); Her­ 13 David Danelski , "The Saboteurs' Case," I J S. Ct. Hisl. man Belz, Reconstructing the Union: Theory and Pol­ 6 1 ( 1996). icy during the Civil War (1969); Arthur Bestor, "The 14 3 17 U.S. 1,45 (1942). American Civil War as a Constituti on Crisis," 69 A m. 15323 U.S. 214 (1944). Hisl. Rev. 327 ( 1964). 16542 US. 507 (2004). 41No good biography ex ists of Milligan, but there are 17 548 US. 55 7 (2006). several helpful articles about him and his case. See, e.g., IS Proclamation Calling Mil itia and Convening Congress, Darwin Kelley, "Lambdin P. Milligan's Appeal for State 's Apr. 15, 1861 in 4 Collected Works ofAbraham Lincoln Rights and Constitutional Liberty during the Civi l War," 33 1 (Roy P. Basler ed. 1953). 66 Indiana iVlagazine oj History 263 ( 1970); Frank L. 19David Dona[d, Lincoln 297 (1996). K[ement, "The Indianapo[is Treason Trials and Ex parle 20Reply to Baltimore Committee, Apr. 22, 186[, in 4 Milligan," in American Political Trials 101 (Michal R. Works of Lincoln, supra note 18, at 34 1. Belknap ed. 1981); Allan Nevins, 'The Case of the Cop­ 21Abraham Lincoln to Winfield Scott, Apr. 25, 186 1, in 4 perhead Conspirator," in Quarrels That Have Shaped id. at 344. the Constitution 101 (John A. Garraty ed. 1962); Ken­ 22 Abraham Lincoln to Winfie ld Scott, Apr. 27, 1861, in 4 neth M. Stampp, "The Milligan Case and (he Election of iel. at 347. 1864 in [ndiana," 3 1 Miss. Va lley Hist. Rev. 41 ( 1944). 2J 1 The War of the Rebellion: A Compilation of the A short book is Darwin Kelley, Milligan's Fight against Official Records of the Union and Confederate Armies, Lincoln ( 1973). For a broader examination ofpolitical op­ 2d Series, 567-68 (Robert N. Scott ed. 1886). position to Lincoln in the Midwest, see Frank L. Kl ement, 24Mark Neely, The Fate of Liberty: Civil Liberties un­ The Copperheads in the Middle West (1960). der Lincoln 9 ( 1992). 42Stampp, supra note 39, at 51-52. 25 Proclamation Suspending Writ of Habeas Corpus in 43Quoted in Klement, "Indianapo[i s Treason Trials," Florida, May [0, 186 1, in 4 Works of Lincoln , supra supra note 39, at 10 I. note 18, at 364-65. 44 1d. 26 1 Official Records, 2d Se ri es, supra note 23, at 574­ 45Quoted in iel. at 198-99. 77. 46Ex parte Milligan , 71 U.S. (4 Wall. ) 2, 76( 1866). 27 Carl Swisher, The Taney Period, 1836-64,5 Oliver 471d. at 79- 80. Wendell Devise History of the Supreme Court of the 48/d. at 88 (Chase, CJ., concurring). United States 845 ( 1974). 49Cong. G[obe 39-2, 25 1. 28 60 US. 393 (1857). 50 Quoted in 3 Warren, supra note 31, at 151 . 260 JOURNAL

51 Jd. at 1 l. Kutler, "Ex parle McCardle: Judicial Impo­ 52Cong. Globe 39-2, 624. tency? The Supreme Court and Reconstruction Reconsid­ 53/d. at 1167. ered," 72 Am. Hisi. Rev. 835, 838 (J 967). 54 Neely, supra note at 176-77. 61 For a contrary view, see William W. Van Alstyne, "A 551d. at 178-79. Critical Guide to Ex parle McCardle," 15 Ariz. L. Rev. 56 3 Warren, supra note 31, at 164-65. 229 (1973); Stanley 1. Kutler, Judicial Power and Re­ 7 5 Habeas Corpus Act of 1867,14 Stat. 385. construction Politics (1968). supra at 504. 288, 347 (1936) (Brandeis, J, concurring). 59 Charles Fairman, Reconstruction and Reunion, 1864­ views on the separation of powers in wartime 88, part one, 6 Oliver Wendell Holmes Devise His­ can be found in John Yoo. The Powers of War and tory of the Supreme Court of the United States 455 Peace: The Constitution and Foreign Affairs after 9111 (1971). (2005). Swift and Erie: The Trials of an Ephemeral Landmark Case

TONY A. FREYER*

Like jazz improvisation, the meaning of Swift v. Tyson was elusive.' Justice Joseph Story's 1842 opinion concerning an important commercial-law issue arose from a jury trial.2 When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'­ ri ghts proponents, the Supreme Court endorsed Story's commercial-law opinion unanimously.3 New members of the Court and the increasing number of federal lower-court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, el ite lawyers, and Congress.4 Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety-six-year-old precedent in Erie Railroad v. Tompf...ins (1938).5 The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie.6 endorsed the bill to Swift, cashier of a Port- I. A Trial of Commercial Principles land, Maine bank, in payment of a previous­ During early 1838, federal judge Samuel R. or preexisting-debt owed to one G. C. Child. Betts and a jury in the U.S. Southern Dis­ Upon Tyson's refusal to cover the bill, Swift trict Court of New York heard creditor Joseph sued. But there were two impediments to his Swift's case. The undisputed facts were that recovery. The unsettled nature ofthe New York Jarius Keith and Nathaniel Norton of Maine local law regarding bills received in payment drew a bill of exchange that was accepted by of preexisting debts was the first. An apparent George W. Tyson ofNew York . Tyson accepted fraud surrounding the original drawing of the the bill in partial payment for a second install­ bill by Keith and Norton was the other. Tyson ment due on some land in Maine. Norton and other New York City investors knowingly 262 JOURNAL OF

At issue in the Swift v. Tyson case were bills of exchange received in payment for preexisting debts. W. Tyson of New York had accepted a bill in partial payment for a second installment due on some in Maine (pictured). When that bill was endorsed to Joseph Swift, a cashier in a Portland, Maine bank, in payment of a previous--or preexisting-debt owed to another creditor, Tyson refused to cover the bill. Swift sued. entered into what understood to be a spec­ Norton in satisfaction or of a prece­ ulative Maine land scheme. Pretrial discovery dent debt due him by Norton, then the defen­ revealed that Keith dant [Tyson] was entitled to the same defenses and Norton did not own the land for which .. as if the suit was between the par­ and the others had contracted to pur­ ties to the bill." The jury thus had to decide chase and for which had accepted the whether Keith and Norton held the land in several bills of Given these facts, some sort of trust for Tyson and his fellow could Swift recover from T speCUlating investors or instead the The for each side and Betts two had defrauded the New Yorkers addressed these facts in terms of contrary false representation ofownership. commercial-law The trial record senden's objections to Judge Betts' showed that Swift's bill of arose the record the "found a verdict from comolex soeculative credit transactions for the defendant."JO Like Fessenden's and Dana's arguments, Betts' jury instructions were noteworthy for what they said and merely assumed. Accord- isting debt, Swift IJUO,,,,,,,,"U to Fessenden, the central issue in the fide right ofrecoverv. Alexander Hooe Dana's case was whether Swift's bill of re­ defense of Tyson rejected this commercial­ ceived in payment of a preexisting debt qual­ law principle for an older commercial-contract ified him to be a bona fide holder in due rule9 In line with Dana's argument Betts course. Judicial innovator Lord Mansfield in­ "charged" the jury that "if it was that corporated into English law the commercial the plaintiff received the Bill of of principle that third-party holders of bills for SWIFT AND ERIE 263

preexisting debts qualified for recovery in Practicalities J";;I'.',""A' partial answers to cases like Swift's. 1I Dana and Betts these questions. this period the older commercial­ out the Union, the press often noted contract principle Hunt s Merchants' that case reports for state courts pro­ zine stated in 1839: that "if ne­ liferated. gotiable securities as Swift's bill] are taken merely on account of an antecedent dent was unsuited to America. In debt, or as a collateral for such a contrast, a few and the receiver does not become a bona- to limit the number of official fide purchaser.,,12 this issue case thereby adherence to debt, many states, such as commer­ stare decisis. IS Regarding commercial princi­ New York, included both the moreover, American commentators such and the older doctrine in as Hunt s asserted that precedent was often their local law. Other states, such as Maine upon of universal eq­

a ....',\olJlIJU the Mansfield prin­ uity." should "extract from those prece­ commentators such dents ... ethical .. and clearly ... as New York Chancellor James Kent point them out in ... opinions. Kent's Com­ the two and Hunt S nonetheless as­ mentaries on American Law affirmed further sumed the existence of these with­ "that the records of many courts in this coun­ out reference to any source outside with and crude decisions" themselves. l3 a series of decisions are not This idea that the profession could always conclusive evidence ofwhat is law." Ul­ as autonomous timately, Kent "the revision ofa deci­ entities was The "mercantile law sion very often resolves itselfinto a mere ques­ is founded in principles which are simple in tion ofexpediency." in most commercial themselves ... but in their application to the cases, lower federal-court and Supreme Court business of life, the details of cases vary so decisions were "not on states' courts, much ... that the most nor those of the state courts on them."17 hangs over the " a Hunt S article de­ These mercantile and commentaries clared in 1839. Thus, commercial litigation Fessenden's, Dana's and Betts' shared increased. Indeed, the of commercial Con­ "simple" commercial flicting New York pre:ce

rpl'pri,pnt regarding Swift's and obli­ and state court decisions in official gations under the bill state and federal reports, treatises such as able to Kent's and merchant journals 264 JOURNAL E COURT HISTORY such as Hunt s. I n the most sense, these nomic conditions and unsettled sources defined business or- trines undoubtedly encouraged Fessenden's commercial practices distilled from nu­ that Thompson would with merous American and English court decisions. Betts. Such to the texts themselves constituted a con­ the Court through flicted corpus of commercial principles from as "certificate of division.,,24 The Court's re­ which Betts drew his jury instructions. 19 sponse affirmed Fessenden's hopes. As Dana In winter 1839, Fessenden appealed Betts' and Fessenden argued the complex facts, a instructions. Fessenden, Dana, and Betts new issue "arose" concerning Section 34 of reasoned from "uncertain" commercial credit the 1787 Judiciary ACt. 25 It read: "[T]he laws in order to settle the obligations of the several states, except where the consti­ from Swift's preexisting debt. 2o These treaties or statutes of the United States in turn defined the scope of mer­ shall otherwise or shall be re- cantile credit soeculation orevaiJing during the as rules ofdecision in trials at common law in the courts of the United States in cases where ,,26 The Supreme Court re­ viewed this issue in I with Daniel Webster mercantile marketplace arguing Swift's side. Chief Justice Roger B. the courts adju­ Taney sent the issue back to the circuit court dicated. Kent stated that in such cases, what for further the Supreme Court often the choice of a legal handed down its decision in January 1842.27 rule was " Although Ke Were the central issues in Swift solely the was aware ofWilJiam Blackstone's declarative construction of Section 34 and what commer­ his emohasis upon expedi­ cial credit should be enforced dur­ of Emdish le­ ilie iliec~e could have raised constitutional federal-state In 1841,adi­ vided Court had decided Groves v. Slaughter gle between nr<''''""'1,,,n expanding the states' control over the inter­ tinue legal opinions ... will depend more on state slave trade and limiting the federal com­ the character and turn of mind of the judge, in January 1842 the who is to decide it, than any princi­ Court decided both and Prigg v. Penn­ pie." Fessenden's of sylvania.29 In the latter case, the Court split such a judge in Joseph over Story's holding Pennsylvania's nonacquiescence to enforcement of the fed­ eral These slavery issues ensured that if constitutional federal- II. state issues were at stake in heated con­ Court LJI;:;I..IUI;:; tention and dissent would have within In order to reach the Dana the Court. Converse Iv. the absence of consti­ first to the U.S. Circuit Court for tutional contention or dissent in the Court's the Southern District of New York. decision of that establishing Smith principles governing credit under bills ofexchange in federal court was Fessenden counted on indeed paramount.30 son that Swift's case warranted following the Clearly, slavery and other state-federal Mansfield commercial principle. Bad eco- constitutional issues the Court, SWIFT AND ERIE 265 whereas vital Swifi. Consistent with Section the federal commercial courts followed a state supreme court's con­ in Swift only Justice struction of a local statute or law James M. Wayne formally joined Thompson '8 insofar "as it constitutes a rule of property," opinion; Justice John McLean, McLean declared. In the and Baldwin concurred in the re­ ever, since the bill of ~"·v.m"'E)Y sult, while Justice John McKinley and Story ... not local but of a inter­ dissented.31 McLean was the lone dissenter to est, the decision in Ohio does not constitute the rule for this court." which he

Peter V Daniel dis­ sented in part.32 from 1841 to 1860 Daniel was the Court's most absolute states'­ proponent. Daniel consistently main­ in an at­ tained this states' -rights position not only tempt to convince members of the but also in cases involving Court that they should follow one strand of admiralty and of state­ confused New York nrpl'P"pn The narrow chartered corporations.3] Since the [790s, by question was whether those "uncertain" prece­ contrast, the Supreme Court had bil.!s dents denying recovery to holders of bills re­ of such as that protested in ceived in payment of debts con­ as rather prosaic issues stituted "laws" under Section 34.40 "In the der federal diversity jurisdiction. ordinary use it will hardly be con­ proponents such as St. Tucker and Able tended that the decisions of courts constitute 34 Even so, the Court's han­ " Story declared. "They are, at most only dling of these commercial-law issues relied, evidence of what the laws are, and are not Justice John Catron in another con­ themselves laws." Dana's argument conceded, text, "more on common sense than any Story that the New York cases were V "'"'\U, , Pll! (Tp ,,35 merely deduced from of These commercial principles also indi­ commercial law. As had McLean and other rectly the construction of Section 34. federal judges, Story then construed Section As Francis Hilliard's layman's law book stated 34 to be "limited in its application to state in I "the custom or the law Jaws that is to say, to the posi­ merchant, which, however is nothing but a tive statutes of the state, and the construction branch of law of the land" governed thereof by the local tribunals, and to bills of From the 17908 onward, and titles to real estate, and other matters whether or not Section 34 was at issue, immovable and intra-territorial in their nature federal courts consistently recognized a dis­ and character.,,4! tinction between this commercial law In concerning commer­ and local statues or customs constituting real ciallaw, both federal and state judges exercised estate or immovable property 37 New their own discretion. "It was never by York's confused commercial cases defining us," Story "that [Section did apply ... Swift's versus recovery under the dis­ to of a more nature, not at puted bill attested to the uncertainty all upon local statutes, or local us­ many states' commercial-law principles38 ages of a fixed and permanent operation, as On his Ohio circuit in 1841, Justice McLean ... to the construction of ordinary contracts articulated these distinctions in a case with or other written instruments, and facts and issues matching those in to questions of general commercial law." In 266 JOURNAL OF COU HISTORY

struction of Section 34, which in turned re­ instructions from oppos­ the validitv of preexisting with cases he extended his decision to include com­ mercial contracts drawn and received as a "col­ lateral security" for bona fide credit trans­ actions. Neither the final nor the record of the case raised the status of collateral securities.

term credit investments. he declared. "probably more than half of all bank trans­ actions in our country . , . are of this nature. The [contrary] doctrine would strike a fatal blow at all discounts of securities for preexisting debts."44 Catron wrote a con­ In his opinion favoring Swift, Justice Joseph Story curring opinion to (pictured) wrote that collateral securities expanded long-term credit investments. Indeed, he declared, introduction ofthis dictum into the Court's de­ "probably more than half of all bank transactions in cision. He to let the issue rest until it our country. ,are of this nature. The [contrary] doc­ trine would strike a fatal blow at all discounts of ne­ formally arose before the Court The objection gotiable securities for preexisting debts." did not affect the unanimous SwifL45 commercial cases, state and federal ex­ ercised 'nn»,,;>nnpnt III. The Transformation of the Swift Doctrine

During the 1840s, the commercial-law mean­ were ing of the Swift doctrine was clear. af­ He also cited decisions the same ter the Court announced its a news­ principles from Chief Justice John Marshall's paper noted that the opinion "settled an im­ era. "And we have not now the dif­ portant commercial question which to ficulty in holding," be soon known.,,46 A law journal echoed the "true intendment and construction" of Section newspaper's statement, as did own use 34 "is strictly limited to local statutes and us­ ofthe decision in a Harvard Law School moot ages" and "does not extend to contracts and court.47 Catron wrote James Buchanan in Au­ other instruments of a commercia I nature, the gust 1842, observing that was "trem­ true interpretation and effect whereof are to bling alive" to the the Court's com­ be sought, not in the decisions of the local tri­ had in Also in but in the and doc­ wrote another unanimous trines of commercial ion for the Supreme Court, that the While Swift won, commercial law" governed ion displayed innovation towards the preex­ tions under insurance contracts. In these com­ debt issue that Catron Questioned. The mercial cases, consideration of state law under Court agreed unanimously with COl1­ Section 34 was unnecessary.49 In the same SWIFT AND 267 year, the Ohio supreme court reversed an the scope commercial law" earlier commercial-contract decision in order Story's Partly for this rea­ to follow the commercial-law principle de­ son, Justice McKinley joined by By 1849, the supreme courts that the pur­ of North and pose of federal-court jurisdiction was to New Jersey had followed Ohio's lead. New parties "a presumed to be free from York courts rejected those any accidental state or however, even though Kent praised and nationalist proponents alike as establ ishing the "plainer and upon this Story's better doctrine.,,51 nal enunciation ofthe Before the Civil War, the commercial- McKinley affirmed that legal rules law meaning of the doctrine remained wills were ofthe state's local law understood. 1. I. C. Hare's and H. B. upon federal courts under Section 34. Wallace's various editions ofAmerican Lead­ dissent from its members by the Civil ing Cases listed Story's as a "leading" the innovative argu­ commercial-law case. Hunt s review of com­ ments advanced on behalf of mercial cases in 1847 accepted the same further law and circum­ ciple. Theophilus who became Har­ scribed Section 34.56 vard Law School's of commercial The archetypal law Story's death in 1845, cited nrr."r.np"t Justice Daniel indicated the Swifi in several works as a commercial­ doctrine's of course, law 52 Thus prior to the I le­ voted for 57 Until his gal and commercial commentary and state death in I he supported or dissented from and federal understood that the the Swift doctrine's on doctrine rested on commercial-law principles. the case. Daniel's Section 34 had a bearing on this Court in Watson v. commercial law" in its re- strated that, like Story's to law among and doctrine's initial expansion did not directly from the "several" states.53 Still, and concern constitutional issues of federal-state judges understood this commercial law to relations. Employing a be evidence of derived Tennessee resident sued a Mississippian for from concrete business recovery on a bill of drawn in New throughout the mercantile world. Moreover, Orleans. The defendant relied on a state statute the distinguished these prac­ favoring debtors. Story's tical from state statutes and construction of Section 34 in as author- established local customs pertaining to real however, Daniel declared that the property that federal courts followed as rules commercial law was neither bound by "local ofdecisions under Section 34. limits" nor confined in its administration to this accepted a jurisdiction. Moreover, a state meaning, the Swift doctrine soon revealed a statute that either subverted under the protean quality. In 1 Justice McLean's commercial law or impaired federal power was opinion in Lane v. Vick held that "without and in federal where no state statute was involved, the Mis­ court. Indeed, any state law having that effect supreme court's "mere construction was, Daniel held, "a violation of the general of a will" did not "constitute a mle of de­ commercial law, which a state would have no cision" Although power to and which the courts of the ex- United States would be bound to ,,58 268 JOURNAL OF SUPREME COURT HISTORY

If constitutional issues were not at liability on a New York property owner what motivated like Daniel to for a Chicago construction-site accident. The the Swift doctrine? At one level, Daniel and Court's decision in Gelpcke v. Dubuque was his merely decided between con­ more controversial. An 8-1 majority infused lawyers raised in federal di­ the doctrine with constitutional author­ jurisdiction on behalf of their inter­ ity to nullify the Iowa supreme court's con­ state commercial clients. In such instrumental struction of the state's which re­ terms, Daniel'5 unanimous Watson pudiated foreign bondholders' contract simply followed holding in Swift favor­ The Swift doctrine was now the basis for a ing entrepreneurial uses of commercial credit federal common law possessing constitutional instruments. Yet Story had held that under force. Section 34, state statutes bound Daniel announced, that a state statutc or other local law did not bind federal courts if IV. The of Erie Railroad v. it violated commercial principles that Tompkins jurisdiction was intended to A subtle shift had occurred. Story's conception The reconstituted Swift doctrine incurred assumed that mercantile denunciation. Before the Civil War, commercial principles and mercanti Ie commentary and the law of the "several" states and Britain. Supreme Court's membership en­ were free to "apply" or ignore these dorsed the commercial-law focus of Story's pies. Daniel's by contrast, linked the a commercial law" to the constitu­ but not its essential .. ~J:A: ... 65 tional purposes of diversity This public commenta­ did not invalidate local Jaw. academics, and many lawyers and

and consumers the 1J1~'UU"'''1 tack upon diversity jurisdiction and the omy of farmers and merchants. doctrine.7° the legal nrC',tpccI Taft's defense of forum- doctrine reflected a

process. most.69 Howard Taft announced to thc American Bar Association in 1895 that "[t Jhe invested In in the South and West owned in the East and abroad. The '\;or­ capital "all carry their Court retained close ties with their courts on the federal circuit court forceful critics of them Samuel Miller discre­ that two years be­ lion under the rather than end- fore his death ended his time as Chief Jus­ it. Not until the 1930s did a Supreme tice of the Supreme Court, Taft reaffirmed Court majority favor overturning the doc­ these sentiments in a letter to his brother, trine. Meanwhile, divisions among as he resisted another congressional at­ and lower-court judges undercut support for SWIFT AND ERIE 269

.cr.,"''''l''.V under fire as the country moved away from small merchant and farming

and consumers jurisdiction and the omy of farmers and merchants. the defense of forum­ doctrine reflected a

the

Howard Taft announced to tile American Bar Association in I that invested in In the South and West is owned in the East and abroad. The "cor­ this "all carry their of diverse seated the local not nrlt'n"n"" .." discrl';­ thai do. two years be­ tion under the rather than end- fore his death ended his time as Chief Jus- it. Not until the 19308 did a tiee of the Supreme Taft reaffirmed Court majority favor overturning the doc- these sentiments in a letter to his brother, trine. Meanwhile, divisions among lawyers as he resisted another at- and lower-court judges undercut support for 270 JOURNAL OF SUPREME COURT HISTORY

effective congressional legislation from the Ge/pcke.74 Second, critics bundled the consti­ 1880s through the 1930s72 In 1923, Charles tutional problem with the legal positivism as­ Warren revealed an early draft of Section sociated with critiques of natural law. Some­ 34 suggesting that congressional inaction had times, too, proponents of positivism singled perpetuated an interpretation violating this out--even blamed-Story as being solely re­ draft's meaning, but subsequent discoveries of sponsible for infusing his Swift opinion with Section 34 original drafts exposed how prob­ Blackstone's declarative natural-law theory. lematic Warren's assertions were.73 By contrast, Joseph H. Beale, though a lead­ Criticisms from reform-minded lawyers ing critic, conceded that Story "mixed" theo­ and academics were also quite influential. ries of positivism and natural law, accepting Two points deserve emphasis. First, only af­ an older "erroneous" belief that international ter Gelpcke and the emergence of a federal mercantile customs pervaded the merchant common law in accident cases did criticism world.1 5 of the Swifi doctrine develop a constitutional Opposition to the Swift doctrine and dimension. It was forgotten that before the laissez-faire constitutionalism eventually con­ Civil War, even rigidly states'-rights advo­ verged. Justice Oliver Wendell Holmes' no­ cates such as Daniel had no constitutional table dissents characterizing the doctrine as issue with Story's general commercial law. representing a "brooding omnipresence in the Even so, legal commentary- including teach­ sky" reflected a legal-positivist critique he ing materials from constitutional-law classes first espoused in 1873.16 Joining Holmes' dis­ at Harvard University and the University of sents was Louis Brandeis, who had resisted Pennsylvania-indicated that the Swift doc­ Ge/pcke's constitutionalization of the doctrine trine as a constitutional problem began with since encountering it as a Harvard law student

Unemployed laborer Harry Tompkins was walking at night along a well-worn path next to the Erie Railroad tracks (pictured) in 1934 when he was struck by an object protruding from one of the cars. He fell down, and his right arm was crushed beneath the wheels of the train. He sued the railroad company in federal district court in New York for personal injury. SWIFT AND ERIE 271

Justice Louis Brandeis (pictured) wrote the opinion in Erie Rail­ road v. Tompkins that overturned the long­ unpopular Swift decis­ ion. Justices Pierce Butler and James C. McReynolds dissented. however, objecting that the overturning of the nearly hundred-year­ old precedent was unwarranted.

in the 1870s. This rejection of the to the Court, however, resulted constitutionalized version ofthe doctrine in Brandeis's opinion both with Holmes' and Brandeis' simulta­ kins' award and the doctrine that had neous dissent from the conservative laissez­ made it possible. 79 For a 6-2 majority Brandeis faire constitutionalism identified with Taft and held that the doctrine an "un~ others. The Court's revolution of constitutional course" of decisions. 1937 laissez-faire with New Deal lib­ various drafts, Chief Justice Charles Evans eral constitutionalism.78 and Justices Owen 1. Harlan In I the constitutionalized version of and Hugo L. Black somewhat mod­ Swift suffered the same fate. Removing his ified Brandeis' opinion8o Brandeis nonethe­ to a New York fed­ less maintained the constitutional core. and unemployed laborer Based on the original of American

VllI'I...."'Hl;) won a $30,000 award he Section 34 bound fed­ eral courts to follow state law in 272 JOURNAL OF SUPREME COURT HISTORY where neither a federal stalute nor constitu­ tion tional was at issue. The federal eom­ monlaw derived from thus was an "un­ constitutional course" of deeisions81 Reed's opinion notcd that never be­ commen.:ial-Iaw fore had the Court equated a "course" ofdeci­ decision ensured constitutional eOI1­ sion with a constitutional violation; doing troversy. so, he observed, the Court's opinion shrouded the legitimate demise of Swift in unnet:cssary ENDNOTES ambiguity. Simply reinterprcting Section 34 I am gratefhl to Kll1hken Shurtleffand Jennifer Lo\\"(: for would have achieved the neccssary outcome I~H;ilitating my contribution to the 200H l.eol1 Silverman without precipitating inevitable confusioll.g2 Lecture Series. For financial ,support. I thank Lnivcrsity Pierce Butler's dissent, joined by James C. of Alabama School ofta\\' i),oan Kenneth ('. Randall. the McReynolds, affirmed that the constitutional l:nivcrs!!y of Alabama LalV School Foundation, alld the rationale for overturning Edward BreI! Randolph Fund. precedent violated tenets of I'. 7hol1, 16 Pc\ers(41 U.S.) I (IR42) The literature concerning the Swill mHJ Fric case, is vast. In this ""ay, restraint that I address the following secondary works as representa­ X Hughes, and Stone had advocated. .1 tive of an elusive history: R. Kent Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Re­ public (Chapell Iill, NC. 1985), 334-44, 3X3X5; Herb~rt Conclusion Hov~nkall1p, Enterprise and American Law 1836--1937 The Erie opinion's constitutional (Cambridge, MA, 1991),79 92; Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court, ('kw rationale balanced the interests of corporate York, 1970),403-14; Morton 1. Horw!t!" The TransliJr­ defense and Dlaintiffs' lawyers, oartieularlv in malion of American Law 1780-1860 (Cambridge, MA, 1977) 24552; Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme COllrt 1837-1857 (Ath~ns, GA. 2006), 5]· 58, 62. 66­ 67. 136. 140, 156-57; Carl B. Swisher, The Taney Period, 1836-64. vol. \\ Oliver Wendell Holmes Devise History of the Supremc COllrt of thc United Stales (New York, within the context of the 1974). 3203H; Wilfi'"d J. Rit!. Wyth~ Ilolt and L. H. La era from 1837 to 1843 re- Rue, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Cballenging Premises, and Using New Evidence (Norman, OK, 1990); Tony Freyer, Harmony & Dissonance: The Swift & Erie Cases in American Federalism (New York. 1981); Mark Tushnet,

"Swi/i P. 7}sol1 Exhumed," 79 Yale Law Journal 284­ 310 (1969-1970); William R. Casto, ''The Ene Doc­ the nationalist Kent and trine and the Structure of Constitutional Revolutions," absolutist Daniel understood the 62 Tulane Law Revier\ 5, 907""{)2 (May 1988); A, Purcell, Jr., Brandeis and the Progressive Consti­ tution: Erie, The Judicial Power, and the Politics of terms. construction of Section 34 re­ the Federal Courts in Twentieth-Century America flected a similar turned to the instru­ (New Haven, CT, 2000). Adam Bernstein, "Whitney Bal­ mental uses of interstate credit relations buf­ liett: Jazz Reporter Known for Poetic Prose," Washing­ feted market 86 the Ion POSI, February 2, 1007, 807, suggested the "Jazz" Uniform Commercial Code adopted Story's allusion. 2 Despite the large literature about Swifi, few sources use commercial-law constitu­ the trial record of the casco Bul see Tony Allan Freyer, tional contentiousness was inherent not in "Unity from Diversity: Commercial Stability and Swifi but in the transforma­ v Tj!SOIi (1842)" (history depanment, PhD dissertation, SWIFT AND ERIE 273

Indiana University, 1975); Tony Allan Freyer, Forums of Cambridge Economic History ofthe United States, vol. Order: The Federal Courts and Business in American II, The Long Nineteenth Century (3 vols., Cambridge, History (Greenwich, CT, 1979),53-98; Freyer, Harmony UK, 2000), 665-n7. & Dissonance, 1-45. note 17; Horwitz, Transformation, 245-50; Harmony & Dissonance, 1-45; John P. Frank. Maxwell Bloomfield, American Lawyers in a Chang­ Justice Daniel Dissenting: A Biography of Peter V. ing Society, 1776-1.876 (Cambridge, MA, 1976). 80-86; Daniel, 1784-1.860 (Cambridge, MA, 1964), I 68-n9. but see Casto, "The Erie Doctrine." 62 Tulane Law Reviel'V Brandeis, 1 Freyer, Forums ofOrder. 99­ 912-923 (May 1988). 141; Freyer. Harmony & Dissonance, 45-99. 23 William Sampson, "On the Common Law," North 5304 US. 64 (1938). ican Review XIX (October 824),427; Bloomfield Amer­ Ritz et aI., Rewriting, 126--99; Charles Warren, ican Lawyers, 64-83; Hovenkamp, Enterprise, 83-89; "New Light on the Judiciary 1789," 37 Harvard Newmeyer, ,Justice Story, 334-44, 383-85. Law (November, Purcell, Brandeis, Taney Period, 327-30; Freyer, Harmony & 342 n.78. Dissonance, 12-/7. record ofthe case ofSwift (CCONY, in Freyer, Harmony & Dissonance, 13. 1838-42); manuscript record of the equity case X-IOO 26u.S. Statutes at Large, I, of Tysen Swift (CCONY, 1837-40). Both of these 24. manuscripts include numbered, dated, unnumbered, and see also supra notes 3 and 8-10. undated and affidavits. They were located for the au­ 29 Grove.1 v. Slaughter, 15 Peters 449 (1841); Prigg v. thor in the National Archives by officials of the General Pennsylvania, 16 Peters 539 (1842); Paul Finkelman,

Archives Division )0 response to a written request. The An Imperfect Union: Slavery, Federalism, and Comity author also used records of the Supreme Court of the (Chapel Hill, NC, 1981), 132-39,266-71,325-37; Allen. United States, #68, Swift v. George HI Tysen, in Dred Scott, 56--58, 62, 6667, 136; Swisher, Taney Pe­ the United States Court Records and Briefs, part 1, Jan. riod, 528-58. 1841 to Jan. 1843, vol. 1, 1-14, located at the University 30 Supra note ofPennsylvania Law School, from Reel #7 of the Allen, Dred Scott, 65-n7, 81, 89. film series of Scholarly Resources, Inc. Note that the trial 83-86; also note 29. record consistently refers to "Tysen," and the spelling ap­ Dyed Scott, 34, 49, 56, 76-77, 88, 156, 163-66, pears as "Tyson" only during the appellate slages of the 186; also supra note 3. case. Harmony & Dissonance, J 8-19. 8Thomas Fessenden, "Copy " quoted at 20 in the in Swisher, Taney Period, 321. manuscript record of the case of Swifl v. Tysen (CCONY, J6Francis Hilliard, The Elements of Law (Boston, 1835), 1838-42). 106 (emphasis onginal). file X-IOO, 1}sen v. Swift, Oct. 26,1837,1-12. 37 Brown v. Van Braam, 3 Dallas 344 (1797), was the first IOFessenden, "Copy Case," 25-26. Supreme Court decision directly involving commerclal­ II Freyer, Harmony & Dissonance, 10, 16, 30, 47. law and Section 34 of the 1798 Judiciary For Protection of Good Faith," Hunt:~ Merchanls' it and other cases and commercial texts, see Freyer, Har­ Magazine I (Sept. 1839), 231. mony & Dissonance, 18-33, Freyer, Forums of Order, and federal cases and other contemporary texts I-52. discussed in Freyer, Harmony & Dissonance, 10-1 I, 14, notes I, I 16, 17-43. ,., Anderson, 20 F. Cas. 802 (C.C.D. Ohio, 1841). 14/d; "Mercantile Law," Hunt's Merchants' fvfagazine I The Ohio case was Riley & Van Amringo v. Johnson, 8 (Jan. 1839),66. Ohio 526 (1838). 15 John P. Dawson, The Oracles of the Law (Ann Arbor, v. Tyson, 16 Peters (41 U.S.) I, 13,17,20(1842); MI, 1968),58-59,69-72. 85-99. supra notes 9, 24. in Freyer, Harmony & Dissonance, 22-23. 41 16 Peters (41 U.S.) al 17, 18; notes 8, 10,39. 42 17 James Kent, Commentaries on American Law (4 vols. 16 Peters (4 J U.S.) at 19. 12th ed., 1873), 477; "Common Law," North American 43/d. at 19~22. Review XIX (October 1824).420. 20. 45 fd at 23-24. Oracles of the Law, 85-89; Freyer, Harmony in Charles Warren, The Supreme Court iu & Dissonance, 4-25; Freyer, Forums of Order, I-52. United States History (3 vols .., Boston, 1923), II, 363. notes 8-10. 47"Bills of Exchange," Pennsylvania Law Journal I 21Hugh Rockoff, "Banking and Finance, 1789-1914," in (1842),219. The reference to Story's use ofSwift in class Stanley L. Engerman and Robert E. Gallman, eds., The in Judge Story's Note ofArgument in Moot Court, Spring 274 JOURNAL OF E COU RT H I STORY

Term, 1842, located in the Treasure Room, Harvard 1,3W Forums of Order, 99-141, Freyer, Harmony & Disso­ School, Cambridge, Massachusetts. The author is indebted nance, 45-100. Edith Henderson for this latter reference. litigation and Inequality, 28-210; Purcell, in Swisher, Taney Period. 329. Brandeis, 39-94; Freyer, Harmony & Dissonance, 45­ carpenler v. Providence WashinglOn Insurance Co" 16 100. Peters (41 US,) 495 (1842), Litigation and Inequality, 28-210; Tony 50Cariise v, Wisehart. II Ohio 191-92 (1842). For other Freyer, "Business Law and American Economic History," states, see cases cited in Freyer, Harmony & Dissonance, in Stanley L Engerman and Robert E. Gallman, eds., The 170 nJ. Cambridge Economic History ofthe United States, vol. 51Slalker v, McDonald, 6 Hill 93 (1843): James Kent, 2, The long Nineteenth Century (2000), 435-482. Commentaries on American Law (4 vols .. 6 ed., New litigation and Inequality, 126-216, York, 1845),111,80. 70William H. Taft, "Criticisms of the Federal Judiciary," 521. I. C. Hare and H. B. Wallace, eds., American Lead­ American Review XXIX (September-October. J 895), ing Cases, vols. (2d ed" Philadelphia, 1851), v. I, 344; 651, William H. Taft to Horace Taft, June 12, 1928, Theophilus Parsons. The Elements of Mercantile Law Oliver Wendell Holmes, Jr. Papers, (2d. ed" Boston, 1862), 151; Theophilus Parsons, A Trea­ Manuscript Harvard School, Cambridge, tise on the law of Promissory Notes and Bills of Ex­ change, 2 Boston, 1876), I, 22J-23,1I, 43; Purcell, Litigation and Inequality, 111-24, 131-37, Theophilus Parsons, The Personal and Property Rights 265-91' Freyer, Forums of Order, 121-36; Tony Freyer ora Citizen ofthe United States (Hartford, J 877), 72-73, and Timothy Dixon, Democracy and Judicial Indepen­ 641-43. dence: A History of the Federal Courts of Alabama, Upon Commercial Law," Hunl:.. Mer­ 1820-1994 (Brooklyn, NY, J995), 59-134. chants' XVII (November 1847), 504; 101m 72Felix Frankfurter and James M. Landis, The Business William Wallace, The Want of Uniformity in the Com­ of the Supreme Court: A Study in the Federal Judicial mercial Law between the Different States of Our System (New York, 1927); also supra note 67. Union: A Discourse (Philadelphia, 1851).32, 73 Supra note 6, note 19. 74Freyer, Harmony & Dissonance, 86-92. "Lane v. Vick.3 Howard 477 (1845). 75Quoted in id., 112-22, 114, 115, 116. 56Id, at 48182. For additional cases, see Freyer, Har­ 76 Muhlker v. NY & Harlem R,R. Co., 197 US. 544, 573­ mony & Dissonanc.e, 47-54. 74,576 (1904); Kuhn v. Fairmont Coal 215 U,S. 349, 57 Supra notes 1-33. 271,272 (19 J 0); Southern Pacific Company v. Jellsen, 244 58 Walson v. Tarpley, 18 Howard 517, 521 (1856}. US. 205, 220, 222 (1917); Black and White Taxicab and 59Hovenkamp, Enterprise, 89-90; Hor\vitz, Transfor­ Transfer Co. v. Brown alld Yellow and mation, 245-50. Co., 276 US. I Harmony & Dissonance, . see a/so supra 74. 15,23,3 bUI Brandeis, 78-80, 98, 101, 137-40. 96. 79 Erie RR Co. v. Tompkins, 304 U.S. 64 (1938); Irv­ notes 31-33. ing Younger, "What Happened in " 56 62 DredSCOil v. Sandford, 60 U.S, 393 (1857); Allen, Dren Law Review 6 (June 1978), 1010-31, Purcell, Bran­ Scott, 53, 62, 140, 155, deis, 95-194; Freyer, Harmony & Dissonance, 101­ v. Robbins, Black 418 (I 53, MGe/peke v. Dubuque, 1 Wallace 175 (I Swisher, 304 U.S. 64; Freyer, Harmony & Dis­ Taney Period, 335-39; Charles Fairman, Reconstruc­ sonance, 122-141; Purcell, Brandeis, lOl­ tion and Reunion, 1864-88: Part One, Oliver Wendell 114. Holmes Devise History of the Supreme Court (New RI304 U.S. at 78-79. York, 1971), vol. VI, 918-1116. s2ld, at 90 (Reed, J, concurring), 65 See supra notes 2, 3, S3!d. ot 80-90 (Butler, J, dissenting), note 64; Hovenkamp, Enterprise, PurcelL Brandeis, 115-308. Brandeis, Il-i56; Edward A. Purcell, Jr., Litigation and notes 31-37, Inequality Federal Diversity Jurisdiction in Industrial notes 18-19,22,23. America, 1870-1958 (New York, 1992),28-210; 87Dunne, Joseph Story, 431. The Flag Salute Cases Reconsidered

RICHARD MORGAN

Introduction my very warmest thanks to the COUIt Historical me, to Chief Justice Roberts for his most introduction (which I can hope will not be retracted silently by the time I finish), and to all of you for inside on a spring to listen to an old ,·r.t"'c<,r.r talk about constitutional law. For a briefwhile after Jennifer Lowe asked to constitutional Jaw I have this I simply the inno­ cent student, in I as this David of the Maine at this most Flag Salute Render Unto Caesar, year for a few in Washington at appeared. David was a much admired older blossom time. and I seethed with him at the But as these small I came shameful treatment meted out to the witnesses face to face with my assigned Flag in the early 19408. that, I knew what Salute Cases. Not the contemporary kerfuffle knows: that Stone's dissent in Gob­ over the reference to the Deity in the ilis and Jackson's opinion for the court in Bar­ but the honest-to-God eOI'es~:nt<:a the way, the truth, and the Salute Cases of 1941 and 1943-Minersville in Gobitis School District v. Gobitis and West Virginia v. and his dissent in Barnette were Barnette. and a blot on his But was I to come What could I possibly say about these? here and spend an hour and cele­ brating the conventional wisdom? Even in my in over years ofintroduc­ mellow old this was insupportable. 276 JOURNAL OF SUPREME COURT HISTORY

A fter a day or two I was saved by an from the theretofore well established Supreme errant thought: A decade or so after Man­ Court understanding of the breadth of the waring's book, I wrote about the early Jeho­ Free Exercise Clause. That prior understand­ vah s Witness Cases myself. And I recalled ing (and rshall spare you its genealogy today) that Barnette was in Volume 319 ofthe United was summed up by David Manwaring as the States Reports, and r recalled this because "secular regulation rule." Manwaring formu­ 319 also contained a gaggle of Witness cases lated it as follows : "There is no constitutional dealing with door-to-door solicitation, which J right to exemption on religious grounds from thought then (and think now) were wrongly de­ the compulsion ofa general regulation dealing cided. And then the second saving thought­ with non-religious matters." In other words, 319 contained both Jackson's magisterial opin­ religious belief was altogether protected from ion in Barnelle and one ofhis greatest but least government interference, but given an other­ attended dissents in the Solicitation Cases. wise valid law or regulation, not designed pre­ Here was my opening: An Unhurried textually to discriminate on the basis of re­ View of Volume 319. (The literary allusion ligious belief, the religious believers were re­ here will mean nothing except to the aged; quired to conform their behavior like everyone An Unhurried View of Erotica was one of else, even though doing so was distasteful to the first offerings to hit the streets after this them. At the heart ofthis approach was, essen­ Court announced the new dispensation with tially, a nondiscrimination principle: Govern­ respect to sexually explicit material in Roth v. ment might not target religious groups because United Slales fifty-one years ago. Today, the oftheir unpopularity, but neither could the reli­ book would probably be considered appropri­ gious groups demand special treatment when ate for middle-school libraries, but then it was quite hot stuff.) In any case, now encouraged, I went to my office set of the United States Re­ ports. (That's right, buckram-bound volumes, no computer printouts!) And here was 319, still with my annotations of thirty-five years be­ fore. And the longer I spent with this "musty volume," the more I came to appreciate all of the lessons that it has to teach. These are the thoughts 1 will try to "unpack" for you today.

The Solicitation Cases

First, let us reflect on the Solicitation Cases­ why they were important and why they were wrongly decided. And to do this, we must leave Volume 319 briefly, and travel back to Volume 310 and Cantwell v. Connecticut. Here, Jus­ tice Owen Roberts famously (but essentially In his dissents in the Solicitation Cases, Justice without argument or explanation) extended the Robert H. Jackson (pictured) expressed the view that Free Exercise clause of the First Amendment the right of the occupant to be left alone was no less worthy of governmental protection than the right of to the states. But he also did something else: the itinerant preacher to go door to door propagating He clearly signaled a willingness to depart his faith. THE FLAG SALUTE CASES RECONSIDERED 277 some otherwise public-regarding ordi­ caJled an "area servant," moved from door to them to do or refrain from do- door offering literature for sale. Or, to be pre­ that violated their scmpies. contributions were traces this approach back to John various ofliterature Gibson's "classic dissent" in Commonwealth v. Joseph Franklin Lesher, and it received its Supreme Court im­ the Witnesses' leader at this said of the of course, in Chief Justice Morrison faithful,

Waite's opinion in KPlmnln v. United States in do not loot nor break into 1879. but they set up tbeir pbono­ consider what Roberts says in before the doors and windows Cantvvell: and send the message of the Thus the [first] amendment embraces dom right into the houses into the tvvo to believe ears of those who wish to hear; and freedom to act. The first is ab­ and while those to hear are solute in the nature of the some of the "sour pusses" second cannot be. Conduct remains are compelled to hear. Locusts invade for the protec­ the homes of the people and even eat The freedom to act the varnish off the wood and eat the must have definition to wood to some extent. Likewise God's preserve the enforcement of that pro­ faithful witnesses, likened them to tection. In every case the power to take the must be so exercised as not, in attaining a end, unduly the veneer offthe religious to infringe upon the protected free­ are in that including candles dom act]. and "holy water," remove the super­ stition from the minds of the peo­ Under the old dispensation, might ple, and show them that the doctrines regulate as as it was not a that have been taught to them are religious group discriminatorily. Following and stubble, destructible the latitude of the com­ cannot withstand the munity was more circumscribed. While the word is what one sees here, I is an early manifestation of a Some communities felt disturbed and threat­ now-familiar judicial trope-that government ened by these Witness and either would have to demonstrate that the means that enacted new ordinances or old ones it had chosen to a public purpose in attempts to was the least burdensome in terms of limiting religiously motivated action. While Four cases these practices came today we are familiar with the require­ to the Court and were decided in the wartime ment of "least burdensome ~, in spring of 1943. In three of them-Jones v. 1940 it was novel. Opelika, lvlurdoch v. Pennsylvania, and Dou­ Now back to Volume 319. In addition to glas v. Jeannette-the issue was a tax levied in the streets (what got Jesse by municipalities upon all those who sold Cantwell in trouble), it became the practice door-to-door. The Witnesses, pre­ of the Witnesses in the late 19305 to saturate had not paid, and were convicted for neighborhoods and whole towns with work­ the omission. the Wit­ ers who, under the direction of an 278 JOURNAL OF SUPREME COURT HISTORY

Murdoch the convictions were overturned and vi ted approaches, no matter the purpose or mo­ the ordinances held unconstitutional as applied tive. Phrasing his opinion more in free-speech to the Witnesses. than in free-exercise terms, Black noted that The key opinion in these cases was written the "freedom to distribute information to ev­ by William o. Douglas, and it is particularly ery citizen wherever he desires to receive it is troubling. Asserting that the practice of car­ so clearly vital to the preservation of a free rying the gospel directly into homes through society that, putting aside reasonable police "personal visitations" was a traditionally ac­ and health regulations of the time and manner cepted technique ofevangelism and thus some­ of distribution, it must be fully preserved." It thing approaching a liturgical exercise, Dou­ might be possible, Black suggested, to enact glas concluded that it "has the same claim to an ordinance punishing those who approached protection as the more orthodox and conven­ doors after explicit warning by the occupant tional exercises of religion," such as preaching that approaches were not desired, but a blanket in churches. The ta x, he said, " restrains in ad­ restriction was unconstitutional. Justice Frank vance the exercise of those constitutional lib­ Murphy added a brief concurrence stressing, erties ofpress and religion and inevitably tends similarly, that the ordinance was overbroad. to suppress their exercise." The court was only Both Stanley Reed and Felix Frankfurter restoring "to their high, constitutional position filed dissents from the tax cases. Reed prin­ the liberties of itinerant evangelists who dis­ cipally addressed the speech argument, point­ seminate their religious beliefs and tenants of ing out that the First Amendment had never their faith through the distribution of litera­ been conceived as exempting all those associ­ ture." Douglas did not go so far as to sug­ ated with publishing and purveying the writ­ gest that the door-to-door activities of the Wit­ ten word from paying taxes on their activi­ nesses were absolutely unregulable by munic­ ties. Justice Frankfurter took the free-exercise ipalities (that dubious honor appears to fall to point, arguing that a tax cannot "be invalidated this Court's 2002 decision Watchtower Bible merely because it falls upon activities which and Tract Society v. Stratton), but there was consti tute the exercise of a constitutional little in his opinion to indicate what restraints right." He strongly reaffirmed the secular­ might be imposed. While making reference regulation approach, arguing that nothing in to the Free Exercise Clause, Douglas always the Constitution "exempts persons engaged in linked it to the Speech Clause, referring to religious activities from sharing equally in the them almost as if they were interchangeable costs of benefits to all, including themselves, parts. provided by the government." And, in a flash The fourth case decided that spring, Mar­ of prescience, he noted that granting such ex­ tin v. Struthers, involved a somewhat different emptions on free-exercise grounds might cre­ fact situation. The city of Struthers, Ohio, a ate a tension between free exercise and the mill town in which many workers on night Establishment Clause. Reed also filed a brief shifts slept during the day, enacted an ordi­ dissent in Martin v. Struthers, characterizing nance prohibiting door-to-door canvassing of the prohibition on canvassing as an "insurance any kind, and the Witnesses ran afoul of it. of privacy." Here Hugo L. Black spoke for the Court. Robert H. Jackson wrote a long opinion This was not, Black pointed out, a garden­ dissenting from the majority reasoning with variety "green river" ordinance aimed exclu­ respect both to tax requirements and to prohi­ sively at commercial solicitation (these were bition on canvassing. Focusing principally on the days before Virginia Pharmacy when the Jeannette, the only one of the cases in which Court did not much trouble itself with com­ there was an extensive record of how the Wit­ mercial speech), but a prohibition of all unin­ nesses' canvassing actually worked, Jackson THE FLAG SALUTE CASES RECONSIDERED 279

its darker side on full display, quoting from doubt if the slothfully ignorant a Rutherford denouncing the wish to repose in their homes, or that Roman Catholic church as a harlot and pic­ the forefathers intended to open the turing "the Jewish and Protestant and door to such forced other allies of the who be­ as we have here. hind the Hierarchy at the present time to do the bidding of the old " and the For Jackson, the of the occupant to be left of a mother who testified she was alone was no less worthy ofgovernmental pro­ told "that I was doomed to go to hell because tection than the right of the itinerant preacher I would not let this literature in my house for to propagate his faith. What was needed in my children to read." "Such is the l'vfartin and thc other cases was a delicate bal­ Jackson wrote, "which it is claimed no claims, which was too can either or tax." of by a vague but fervent transcendentalism. Like Frankfurter, We have held thataJehovah's Witness Jackson saw a potential contradiction of the may not call a public officer a Establishment Clause in any exemption damned racketeer" and a "damned of motivated behavior from other­ " because that is to use wise valid secular and words," and sllch are not privi­ nonreligious behavior enjoyed the freedom of Chaplinsky v. New Hampshire, guaranteed the Speech U.S. 568. How then can the court but beyond that Jackson "had not supposed that hold it a constitutional the ofsecular and commu­ to go to homes, nications werc any more narrow or in any way those of devout Catholics on Palm inferior to those of avowed reI groups," Sunday and thrust upon This opinion, described in the most recent them literature their church a determinedly history of the Je­ "whore" and their faith a "racket"') hovah~' Witness Cases as " was, in But Jackson reserved his finest scorn for Dou­ fact, one of Jackson's glas's declaration that "this form of the same high estate un­ der the First Amendment as do worship in the churches and preaching from the pulpits." The Flag Salute Cases "How, Jackson asked, "can we dispose of the Now let's turn to the Flag Salute Cases. We are questions in this case merely by the un­ accustomed to thinking of them as an instance questioned right to minister to of dramatic but few of us really un­ voluntarily services?" And as for derstand what a reversal repre­ sented and that the process of reversal actually J find it impossible to believe that before Gobitis. The modern school the Struthers s case can be solved salute ceremony dated from 1892, and the first by reference to the statement that salute statute passed the of New "The authors ofthe First Amendment York in lone day after the United States knew that novel and unconventional declared war on Manwaring found that ideas might disturb the complacent, before 1940, thirty states had the ceremony but chose to encourage a free­ as part of the school and in most of dom which they believed essential if participation was compulsory. Judicial enlightenment was ever to attacks had proven triumph over slothful ignorance. I 280 JOURNAL OF SUPREME COURT HISTORY

1J; ~~/ ~. ??~ V; / q j J {/u/'~J-<-krL- ~~~ .fr~ J.M.v k- J- 1a--/nd-~4py C

rule and other courts not reaching a constitu­ Flag," seeking to mobilize the Witnesses be­ tional question at all. hind the Nichols' family and against the flag The Witnesses' involvement with the flag­ salute. The Lynn School Committee voted to salute controversy began in Massachusetts in exclude Carlton from school until he chose 1935. The Lynn public schools had a long­ to conform, and his father sued for a writ of standing practice of opening exercises that in­ mandamus against the Mayor and the School cluded the salute, and in September a young Committee before Justice Hemy T. Lummus Jehovah's Witness, Carlton Nichols, Jr., began of the Supreme Judicial Court. Lummus re­ standing quietly during the ceremony but tak­ ferred the matter to the full court, and in a ing no further part. Carlton's father backed his unanimous decision on April 4, 1937, invoking son, explaining, the secular-regulatio'n rule, the Witnesses lost. The American Civil Liberties Union (ACLU), The scriptures prove the truth of my which had initially offered to support an appeal assertion that this world, this country, to the Supreme Court of the United States, de­ and the entire worldly kingdom, is clined to go further on the advice of its local not possessed by any government or counsel. any country, but by the devil ...Why, Given the strong popular support for the then, should I, or my son, pledge al­ flag salute and the uniformly negative reac­ legiance to the devil's kingdom? tion by courts to challenges brought against On October 6, Judge Rutherford delivered it, the remarkable thing about Gobitis is not a blistering radio address titled "Saluting a that the Witnesses lost, but that they actually THE FLAG CASES R IDERED 281 won in the lower courts and even attracted one Amicus curiae briefs were submitted vote at the Court level-that of Har­ the ACLU and by the Bill of Rights Commit­ lan Fiske Stone. The Gobitis case came out tee of the American Bar Association of the hard-coal country of and Both ofthese are interesting. The ACLU brief attracted national interest all along the way. purported to stick by the The Gobitis children refused to salute, approach and the standard Witness for refusal from Conduct could be in the aid of any Exodus 20:3-5: legislative purpose; beliefwas abso­ However, what was involved You shall have no other before the brief me. regulation of conduct at all but the You shall not make yourself a of a religious belief This was not the graven image, or any ofany­ of polygamy or the refusal to be vaccinated or any other behavior that the state had a right ...You shall not bow down to them to in reasonable furtherance of a com­ or serve them ... munity interest. The salute was coercion in the (Grounds less colorful than those advanced by realm of which the Free Exercise Clause Carlton Nichols' but with better textual had historically been considered as nrn,tpr·tln Gobitis was tried in federal district characterizing the salute as coercion ofrei i­ court in Philadelphia, and it was here that the belief, the ACLU drafters craftily sought Witnesses' fortunes began to to reassure the Court thalit could decide for the a victory for the nonconforming Witness children without any settled not for coherence in constitutional law. doctrine. Albert Maris was willing to over­ The throw the secular with starry eyes Zecharia that seemed almost to see forward to 1963 and doctrine, it Sherbert v. Venner. And as for the of called for an ad hoc balancing of the compet­ the salute, he how could the Wit­ ing claims of government to and of ness children to words they detested in­ the individual both to believe and 10 behave in still patriotism? At the Third Circuit, William such manner as sincere conVictions Clark wrote for a unanimous panel, claiming direct (another intimation of Sherbert v. that the secular-regulation rule had never been How important is the interest of the enforced to so trivial a (){""prnrr,pnt" individual? How important is the interest ofthe interest as was at stake here. And he followed state? And are there other ways in which that Maris in identifying that interest as interest could be satisfactorily secured without love of country in William and Lillian Gob­ religiously motivated behavior? itis by requiring them to salute the flag. Both Justice Frankfurter delivered the Maris and Clark conceived the case in free- of the Court divided 8 to 1, and he has been exercise terms, whether for unfairly for it ever since. this ex­ religiously motivated from an other­ periment: Read the opinion and see if wise legitimate government program was re- you don't as I do, that Frankfurter la­ and both were to overthrow bored throughout under a sharp sense that he settled doctrine to answer in the affirmative. was the wrong but that within the Then it was on to the under four corners of settled doctrine the direction of Judge Rutherford himself and there was no way he could reach the outcome Hayden who had come aboard as to which his I think, prompted him. house counsel. And it as Robert Jackson pointed 282 JOURNAL OF SUPREME COURT HISTORY out three years later, by assuming that the case to be that secular regulations should override had to be settled on free-exercise grounds, that claims for religious exemptions only when the Frankfurter made his mistake. As a simple most important social values, such as monoga­ commonsense matter, he could not accept the mous marriage or the prevention of the spread ACLU's suggestion that the flag salute in any ofdisease, are involved. In this, he moved even way foisted a religiolls belief on the Gobitis beyond the ad hoc balancing approach that had children. The exercise was purely secular, and been urged by the ABA. the only question to be answered was whether The reaction of the press, the legal it was a legitimate exercise of Pennsylvania's academy, key members of the Roosevelt legislative power. He concluded that the pledge administration, and even some lower-court was a reasonable means to the end of foster­ judges was highly unfavorable to the Frank­ ing patriotic regard and thus a valid secular furter opinion in Gobitis. As Manwaring regulation. He did not doubt the sincerity of points out, Frankfurter's workmanlike asser­ the Gobitis children or the principled nature tion ofwhat, before Cantwell at least, had been of their objection, but "conscientious scruples settled law was distorted into an assertion that have not in the course of the long struggle national unity was more important than reli­ for religious toleration, relieved the individual gious scruples. Stone was lavishly praised for from obedience to a general law not aimed at exprcssing the essential general spirit of the the promotion or restriction of religious be­ First Amendment-the best possible compli­ liefs." He could accept neither the argument ment under the circumstances. Furthermore, by the ACLU that the flag salute imposed a and to the huge embarrassment of the Jus­ religious belief nor the invitation by the ABA tices, Gobitis was seized upon by thugs and su­ to abandon the secular-regulation rule and be­ perpatriots, and instances of violence against gin ad hoc balancing. He was trapped, and he Witnesses escalated as the war news became would retain his commitment to the secular­ bleaker. regulation rule right through the Sunday Clos­ A decision that draws as much fire as Gob­ ing Cases of 1961. itis (and supplies a rallying cry to hoodlums­ Stone alone dissented. And full marks to "they're traitors, the Supreme Court said so"), him, along with Maris and the panel of the is not likely to endure for the ages. Murphy, Third Circuit, for at least getting the outcome Black, and Douglas clearly signaled in 1942 right; unfortunately, Stone did no better than that they were prepared to abandon Gobitis, Maris or Clark in explaining why. He made and in 1943 a somewhat altered Supreme Court sweeping references both to free exercise and (Stone had succeeded Charles Evans Hughes to free speech without specifying how, pre­ as Chief Justice, and Jackson and Wiley Rut­ cisely, either of these was violated. Even more ledge had replaced Stone and James F. Byrnes, troubling was Stone's willingness-nay, ea­ respectively) heard oral arguments in a second gerness-to review and correct the legislative flag-salute case. Coming on the heels of the policy judgment that a compulsory flag salute Witnesses' sweep in the solicitation cases, it advanced an important governmental interest. was clear how the flag-salute issue would go Here he advanced under the banner of his the second time around. When West Virginia Carolene Products footnote, offering it as em­ Siale Board of Education v. Barnette finally bodying the Court's established wi llingness to came down on June 14, 1943, Justice Jackson undertake "searching judicial inquiry into the wrote for a Court divided 6 to 3, striking the legislative judgment" when minority interests mandatory flag salute. were at stake. The old distinction between be­ The briefing in this second case had oc­ lief and action seemed meaningless to Stone, casioned one innovation. The ACLU, loyal to and the sense of this famous opinion appears the Witnesses' cause despite repeated rebuffs THE FLAG SALUTE CASES RECONSIDERED 283

Judge now borrowed from the or otherwise, the policy decision of the constitutional law of free The "validity of the that unless the religiously motivated behavior asserted power to force an American citizen constituted a "clear and to the to any sentiment or belief or community, it could not be regulated no matter ceremony of assent to one, how worthy or reasonable the pur­ of power that must be con­ pose. This, at was better than the ad hoc idea we may have suggested by thc ABA in its Gob­ ofthe ceremony in question." A would immu­ salute was a ceremony "touching matters huge attitude" and could not

under our constitution, tion on nonreligious now the obliteration of the secular- our regulation and in Judge John R. Parker's institutions rest upon consent, opinion for the three-judge that tried and consent may not be cOITUllanded -even nw·rwlw. the "clear and sug­ of the young. even in the course of carried the school instruction. And then what Justice Jackson disdained this bait. As his most memorable have been from his opposi­ If there is any fixed star in our con­ tion to the solicitation UC;\~l:>l'l)ll:>, he was not stitutional constellation, it is that no enthusiastic about what he reck­ official, Of petty, can less extension of the Free Exercise Clause. As what shall be orthodox in politics, na­ noted, quite Jackson was tionalism, or other matters no more willing than Frankfllfter to "jettison" of opinion Of force citizens to con­ the secular-regulation rule. What he saw that fess word or act their faith therein, Frankfurter hadn't was that the IS­ If there are any circumstances which sue was not framed in free-exercise permit an exception, they do not now terms. Jackson took the case on occur to us. and rather than was constitutional for West to Thus was born what we call the Barnette to salute the he asked of constitutional law the speech whether the state could compel anyone, re­ doctrine," ligious or to do so. Cnlike the Not all the majority Justices were satis­ solicitation cases, Jackson wrote, the "free­ fied, Justices and Black dom asserted these does not and seemed to the vaulting approach of them into collision with asserted by any the ACLU brief. Since the "little children" had other individual." Nor was it to in­ done to disturb "domestic tranquility" quire whether nonconformist beliefs will ex­ or to erode the nation '8 "martial power in war," empt from the to salute unless we first they deserved protection under the Free Exer­ find power to make the salute a legal cise Clause. While not formally the That point had been assumed in Gobitis, and "clear and test for free exer­ that was where the decision went wrong. The their opinion comes close. Justice Mur­ pledge involved "a form "and was phy also concurred, and also seemed to want an "affinnation of belief and an attitude of close to but not a "clear and mind," Neither was it necessary to test. He asserted a to 284 JOURNAL OF SUPREME COURT HISTORY

Before 1940, thi rty states had the flag­ salute ceremony as part of the school ritual, and in most of these, participation was compUlsory. free-exercise protection of nonconforming be­ weakened, and it seemed possible by 1943 that havior that operated "except in so far as essen­ the Free Exercise Clause would emerge as a tial operations of our government may require far more important limitation on government's it for the preservation of an orderly society­ power to regulate behavior than would have as in the case of compUlsion to give evidence been thought possible before Cantwell. De­ in court." Justice Frankfurter dissented alone spite the best efforts of Frankfurter, and espe­ and bitterly, accusing his colleagues of acting cially ofJackson, their Brethren Roberts, Dou­ beyond their warrants as judges by not defer­ glas, Black, and Murphy (and Maris, Clark, ring to legislative judgment ofreasonableness, and Parker below) had written, and their words as he had argued in Gobilis. remained for future advocates to weld into ar­ With the decision of the second flag­ gumentative weapons. This Court remains di­ salute case, the Free Exercise Clause moved vided over whether to commit itself fully to the to the fringe of American constitutional pol­ new road or turn back to the old. And that takes itics for almost two decades. Sharp judicial the issue into Chief Justice Roberts' province combat over exemptions for religiously moti­ and out of mine. vated nonconforming behavior would be re­ newed in the 1960s and beyond. But in the So What? course of disposing of the wealth of busi­ ness created by the factitious Witnesses in the But what, if anything, do these early tussles 1930s and 1940s, the Court skidded partway over free exercise, and these two magnificent into a constitutional turn of the first impor­ Jackson opinions, have to teach us more gener­ tance. The secular-regulation rule had been ally about our constitutional history and about THE FLAG SALUTE CASES RECONSIDERED 285 how we should view contemporary constitu­ gered and cared most about was neither free­ tional law? I will offer three disparate, but I dom of speech nor of reiigion-or the right to hope related, thoughts. bear arms'-it was property.) But I am go­ First, the events that I have been dis­ ing to dwell on a different, more corrosive cussing constitute an important phase in the aspect of Footnote 4: its standing invitation gestation of what today we refer to as the to future courts to boldly remake legislative "rights revolution." While we usually apply policy judgments. A wonderful example of that phrase to the salad days of the Warren where this would lead comes from Chief Jus­ Court, scholars have long recognized that the tice Earl Warren in 0 'Brien, in 1968, where roots of revolution run back into the Roosevelt he listed the various "standards" employed Court of the late 1930s and early 1940s. And by the Court in evaluating the qual ity of the what one thinks about the end product will governmental interest in any particular public very much affect what one thinks about the policy- "compelling; substantial; subordinat­ beginnings. So for any who might not have ing; paramount; cogent; strong." But when one already have guessed it, let me make my po­ actually considers what is involved in a leg­ sition clear: While I am far from rejecting all islative policy judgment, the impossibility of of the rights jurisprudence of the last sixty applying such distinctions of elfin delicacy (at years (after all, I think that Barnette was cor­ least applying them with anything like intel­ rectly decided), I think much of it vaultingly, lectual respectability) vanishes. To make clear thoughtlessly libertarian and supported by ju­ why this is so, let me revisit with you one dicial prepossession and vacuous abstractions of my favorite books-Judge Learned Hand's rather than by disciplined arguments from text 1958 Holmes Lectures at Harvard, published and history. Furthermore, it is characterized that same year as The Bill of Rights. Today, by a persistent failure to take into account the the book is not studied and its argument little conflicting legitimate interests always present regarded. It is unlikely that anyone who pub­ in civil liberties cases. Prefiguring so much lished and stuck by such an argument could that was to take place in the later years of the be confirmed by the Senate for appointment rights revolution was Justice Douglas's decla­ to the federal Bench. But Hand's view of the ration in Murdock that door-to-door solicita­ proper relationship between courts and leg­ tion "occupies the same high estate under the islatures remains unsurpassed. For him, the first amendment as do worship in churches essence of a policy choice- of a legislative and preaching from the pulpits." And Justice choice in the nominal case-was a ranking Black in Struthers runs a close second, charac­ of conflicting values and a guess about the terizing the situation as involving "[f]reedom future. In the theory of our Constitution, the to distribute information to every citizen wher­ value rankings and the guesses should be unre­ ever he desires to receive it." viewable by courts. The only question for the A second observation as to how the later judiciary was a formal one, a definitional one: excess of the rights revolution were prefigured does the legislature have authority to act with in its early stages focuses on Justice Stone's respect to this subject? Ifit does, its rankings of invocation of his Carolene Products footnote. values (preferring some, disfavoring others) is The common criticism of "Footnote 4" (and none of the Court's business; if does not, noth­ quite correct it is) charges that the introduc­ ing in the substance of the policy (no matter tion into American constitutional thinking of how attractive the value choice or how brilliant "preferred positions" for certain rights over the guess about the future appears) can save it. others is a serious deformation of our consti­ The court was to speak in rules, not in stan­ tutional tradition. (After all, the civil liberty dards. And in the light of this, consider Jack­ that the Framers at Philadelphia saw endan­ son's Barnette reasoning: The West Virginia 286 JOURNAL OF SUPREME COURT HISTORY

legislature was dllCllIULJ to do randa v. Ari:::ona. In Ashcroft v. Tennessee, in beyond its power, and it mattered not whether 1944, Jackson to the issue of psycho­ the Qovernmentai interest was or logical coercion: and it mattered not whether The Court Justice Black] the means chosen were or tai­ bases its decision on the premise that lored. Determinations ofdegree and choices of custody and examination of a means are not to be remade by judges. Whether oner for hours is "inher­ or not the flag salute was a good or ently coercive. Of course it is. And ineffective way of inculcating so it custody and examination for one quite beside the point. And when hour. Arrest itself is inherently coer­ minded to utilities with the cive, and so is detention. When not they bear in mind the infliction ofsuch that the below in Gobitis at the upon the person is actionable as a tort. district court and Clark for the made Ofcourse such acts put pressure upon of the exercise. Both asked whether the to answer to the Witness children to words offensive answer them truthfully, and to con­ to them would instill love of country; bUl the fcss of course was that the DJedg:e was wildly But does the constitution prohibit use of all confessions made after ar­ rest because the questioning, while and this left the real one is of freedom, is "inher­ which you shouldn't­ coercive"? The Court does not the children would say so, but it is moving far and an otherwise fast in that direction. gram. It was this to which Justice Stone en­ courts with his reference to "the im­ And in Watts v. Indiana 1I1 1949, Jackson ad­ dressed the issue of uncounseled intprrr.oo of a searching judicial inquiry into the legislative judgment. If the state may arrest on Thirdly and lastly (and here I have again, cion and interrogate without coun­ of course, tipped my I want to empha­ there '8 no denying the fact that size in area after area of constitutional negates the benefit of the what Robert Jackson inveig:hed against in constitutional guarantee of the the 1940s and 1950s has to assistance of counsel. pass. We are living to a who has ever been called into case doctrinal future that he ter his client has "told all" and turned dents of American constitutional development any evidence he has over to the gov­ are delighted by it. But for the ever-growing ernment, knows how he is minority who are not, could do no better to his client the facts in sharpening their wits and their arguments disclosed. than to attend, not to the famous opinion I suppose the view one takes will in Barnette, but to the forgotten dis­ turn on what one thinks should be the sents and concurrences. We have noted how ofan accused person the he punctured Justice balloon in the State. Is it his to have the solicitation cases, but I would equally com­ ment on the facts? Or is it his mend to your attention his warnings against the have a judgment based on such growing enthusiasm of his Brethren to restrict evidence as he cannot conceal from police interrogation of criminal suspects-the the authorities, who cannot com­ enthusiasm which would ultimately lead to /vli­ pel him to testify in court and also THE FLAG SALUTE CASES RECONSIDERED 287

cannot him before? .. But to Justice Murphy's famous sentence from

if the ultimate in a criminal trial LltC

(Art. II, 4): "Every person may freely denial by the states is the literal and identi­ speak, write and publish on all sub­ cal 'freedom of speech or of the press' which jects, being responsible for the abuse the First Amendment forbids only Congress to of that liberty." That is what I think abridge." And he made a considerable argu­ is meant by the cryptic phrase "free­ ment from precedent for this position, quoting dom ofspeech," as used in the Federal the sainted Holmes,joined by Brandeis, in the Compact ... Cit/ow dissent:

Or consider the Fourth Amendment exclusion­ The general principle of free speech, ary rule, fatefully extended to the states in it seems to me, must be taken to be Mapp v Ohio. In Irvine v. California, eight included in the Fourteenth Amend­ years before, Jackson had written that ment, in view of the scope that has [t]here is no reliable evidence known been given to the word "liberty" as to us that inhabitants of those states there used, although perhaps it may which exclude the [illegal] evidence be accepted with a somewhat larger suffer less from lawless searches and latitude of interpretation than is al­ seizures than those of states that ad­ lowed to Congress by the sweep­ mit it. ... That the rule of exclu­ ing language that governs or ought sion and reversal results in the escape to govern the laws of the United of guilty persons is more capable of States. demonstration than that it deters in­ Suppose Jackson's view had prevailed. What vasions of right by the police. difference might it have made? Fifteen years Finally, consider Jackson's reservations con­ after Beauharnais, John Marshall Harlan cerning incorporation, the application of the would invoke Jackson in a futile attempt to dis­ specifics of the Bill of Rights against the tinguish between the obscenity cases of Roth states through the Due Process Clause of the v. United States and Alberts v. California, ad­ Fourteenth Amendment. In several instances vancing an eloquent argument as to why the in which the Brethren were applying Bill of states should enjoy greater flexibility under a Rights norms to states, Jackson reminded them Fourteenth Amendment speech standard than that such appJ ications rest "entirely on author­ did the national government under the specific ity which this Court has voted to itself." He did interdict of the First Amendment. not quarrel with incorporation as settled law, But it is time to end this little story ofroads but recalled "the method by which the right not taken and warnings unheeded. I can now to limit the state has been derived only from thank the Supreme Court Historical Society this court's own assumption of power, with not only for the trip but for its assigned topic, never a submission of legislation or amend­ because it returned me to Robert H. Jackson. ment into which the people could write any It's the fashion in constitutional studies today qualification to prevent abuse of this liberty, to kiss off Jackson with the comment "yes, he as bearing on upon the restraint I consider as was a grand writer," the unstated but clear im­ becoming in exercise of self-given and un­ plication being "phrasemaker, but intellectual appealable power." Even more radically (as lightweight," a rhetorician unconcerned with judged from the contemporary perspective), rules or doctrine. If anything that I have said Jackson favored applying Bill ofRights norms this evening moves you to return to Volume differentially against the national government 3 19 of the U.S. Reports and to work your way and the states. In his dissent in Beauharnais forward to 1955, you'll determine for yourself v. Illinois in J952, he attacked the assumption whether such dismissals of Jackson are smaJi "that the' liberty' which the due process clause or slander, and my time will have been well ofthe Fourteenth Amendment protects against spent. Why Dennis v. United States is a Landmark Case

MICHAL R. BELKNAP

A landmark, Webster's New Collegiate Dictionary teJls us, is "an event or development that marks a turning point or a stage. " In my life, the case of Dennis v. United States I is a landmark, or perhaps more accurately, a series of landmarks. My 1973 doctoral dissertation was on Dennis.2 Four years later that thesis became my first book3 My second book, a coJlecti on of articles on American political trial s that appeared in 1981, contained an essay by me on Dennis.4 By then , I assumed, I had said about everything I had to say on the case. In 1993 , though, Mel Urofsky brought me back to it, asking me to write a retrospective article on Dennis for the Journal of Supreme Court History, of which he had just become the editor. 5 Now, fifteen years later, here we are together again. I am beginning to think that the "grave and probable danger" test that Dennis introduced into constitutional law will be in scribed on my tombstone. But does Dennis merit such attention? gal hi story casebooks edited by Urofsky and Does it really matter much to anyone who has Finkelman 9 and by Finkelman , James W. Ely, not spent nearly four decades Iiving with the Jr. , and the late Kermit Hall. l o In a book on ma­ case? Apparently it does, at least to consti~ jor problems in American constitutional his­ tutional historians. William Wiecek devotes a tory, Hall devoted a full chapter to Dennis, full chapter of hi s prize-winning hi story of the excerpts from books by Walter Berns and my­ Supreme Court during the chiefjusticeships of self examining the deci sion, and a single con­ 6 Stone and Vinson to Dennis Professor Urof­ trasting case. II Wiecek regards Dennis as one sky gives it five pages in the constitutional of only two deci sions of the rather undistin­ history of the United States that he coauthored guished Vinson Court that "remain[s] of last­ with Paul Finkelman.7 That is a two-volume ing significance." 12 book, but even Michael Les Benedict, who But why? Although Harry Kalven called seeks to cover that gigantic subject in a sin­ Dennis "a great moment in Supreme Court gle volume of only 430 pages, devotes 2 of history,"iJ its contemporary legal importance them to Dennis. 8 The case is included in le­ certainly does not warrant the attention the 290 JOURNAL E COURT HISTORY

William Z. Foster, Benjamin Davis, Eugene Dennis, Henry Winston, John Williamson, and Jacob Stachel, members of the national board of the Communist Party of the United States (CPUSA), were photographed leaving the courthouse in New York in1948. They were charged with, and eventually convicted of, violating the Smith Act, the 1940 law that made it a federal crime to teach and advocate the overthrow of the government by force and violence or to belong to an organization that engaged in such teaching and advocacy. case has received. That is of which by force and vio­ I am painfully reminded every time I teach lence or to to an organization that en­ constitutional law. With too many topics to and advocacy IS Fol­ cover and too little time in which to do it, r lowing a tumultuous nine-month 1949 trial in find it increasingly ditficult to the federal courthouse on New York's mysel f, forcing my students to Square, a jury convicted eleven members of minutes on a case will never encounter the National Board on a bar exam, just because I to know Smith Act. 16 more about it than anyone else who is still of Appeals for the Second challeng­ alive. ing, among other the constitutionality Dennis was once of the law the government had used against it came down in 1951, the decision them. In an opinion Chief Judge Learned a war on the Communist Hand, that court their contention that United States (CPUSA) that the US. the Smith Act violated the First Amend­ ment of Justice had launched in I when ment's guarantee of freedom of expression. I! it secured the indictments of all twelve mem­ In Dennis v. United 15 the Supreme bers of the party's National Board on Court, although bad Iv divided over of a sedition statute known as the how to resolve the affirmed Smith ACt. 14 That 1940 law made a fed­ the Second eral crime to teach and advocate the over- 6-2.19 DENNIS V. UNITED STATES 291

The government treated the Court's am- The prosecutions did, result in a dramatic reduction in the size of the CPUSA. as a green The reason was not that fear of the Smith ther under that law, it a mass exodus from the party. charged 126 "second Communist lead­ it was that the of once-trusted ers with conspiracy to violate the Smith Act comrades who took the stand at Foley and prosecuted nine more under the statute's and in "u'-'·".... ~IU .... 1 trials in COl1llTIU­ clause. Dennis made this oists a fear of informants in their ranks that war on the CPUSA possible. But the cam­ caused them to eliminate many of their own paign it seemed to sanction ground to a halt members.29 As FBI Director 1. Edgar Hoover after the Court's 1957 decision in Yates v. United States. Bent on stopping what ber innocent of the as the excesses of that Jus­ [was] expelled.,,3o In addition to this "house­ tices John Marshall Harlan and Felix Frank­ " many but inactive members furter asked their clerks to spend the summer were from the ranks of the CPlJSA.31 of 1956 ways to rein in a war A reluctance to take in new members who on the CPUSA they believed had prove to be government spies led to a of hand 23 In a memorandum to his curtailment of 32 Even more disas­ Harlan advised them "that one of the factors these its in order to pro­ cases was the of some members of the tect it from prosecution. Conflicts developed Court that we should take a new look at these between these "unavailables" and those Com­ Smith Act ofthe accumu­ munists still lated post-Dennis particularly ... measures adc)Pu:a the character of the evidence which the lower Courts have come to accept as sufficient.,,24 it and He authored an opinion in Yates that, while bureaucratic.34 Its suicidal efforts to it­ not invalidating the Smith Act, did down self from the Smith Act deprived the CPUSA evidentiary of two-thirds of its members and rendered it a der that statute that the cripple. meet. Harlan also its While the Smith Act that clause in a way that made impossible the pros­ Dennis v. United States unleashed decimated ecution of any more Communists under that the Communist party, its impact on that small provlSIOlL and vilified radical eventually thwarted the Yates Court's Smith Act came 2004 ofthe impact ofwar and related na­ a crises on freedom

,pnTHF'" Stone observes that, "[0]yer time, the the way the government had con­ [Supreme] Court and the nation came to The Smith Act prosecutions failed Dennis as an or worse ... [1]n to decapitate the for most of those the run it was shunted aside and, eventu­ targeted soon returned to active roles in oyerruled."J6 Professor an the party.27 Other evidence the boast on law and the editor of a of defendant John Williamson that "[o]f the used eonstitutionallaw is accurate many leaders and sen­ the current ofDennis. tenced under the Smith act.. the oyef\vhelm­ About the fate of the 1951 Communist case, ing majority stood the test of battle.,,28 292 JOURNAL OF E COURT HISTORY

"''''''f'''vpr he is Dennis has never test than the one it had an­ been overruled. It only seems that way. nounced in Dennis.47 The Court held in Bran­

Dennis v. United States is virtually syn­ nOJ"mwo that "the constitutional guarantees of onymous with the new test that it intro­ free and free press do not a State duced into law. In the Communist forbid or proscribe advocacy of the use of case, Vinson purported LO explain, but actu­ force or of Jaw violation except where such ally modified, the classic "clear is directed to inciting or producing and danger" test developed by Jus­ imminent lawless action and is likely to in­ tice Oliver Wendell Holmes, Jr. and refined cite or such action."48 This formula­ by Justice Louis Brandeis.38 Adopting ver­ tion added an intent requirement that earlier batim the first used in Dennis versions of the "clear and present danger" test Chief Learned Hand of the United had not and much more than States Court of for the Second Cir­ its demanded that the threatcned cuit, Chief Justice Vinson wrote: "In each harm be imminent. "Therefore, on a doctri­ case must ask whether the nal it is " as Chemerinsky ob­ of the 'evil' discounted its "that the Court presented the Branden­ ity such invasion of free speech as test as if it followed from the Dennis is necessary to avoid the "39 This ap­ formulation, rather than that it was a substan­ proach "makes probability and imminence~ tial exoansion in the protection of speech."49 two seemin2: reQuirements of a clear and Dennis, it es­ Brandmburg is "even "If the harm is more of freedom ofexpression than enough, such as the overthrow of the gov­ the [original] Holmes test."so It did not over­ ernment, then it can be rule Dennis.51 But while Dennis remains tech­ punished without any of likelihood . since 1969 it has been a mere or imminence.,,41 "For the clear and shadow of the decision that dominated free danger test," Francis Wormuth speech law in the 19505. 1953, it "substitutes 'grave and Only gel" test.,,42 "grave and The current of Dennis's den burg was decided. a number "grave and probable test is minimal. of these are actually citations to the Court One good way to measure the importance of of Appeals opinion in which Learned Hand a decision is by the number of times it has originally articulated the rule. mention been cited. Using that test, Dennis appears at the Supreme Court as having affirmed first glance to be a quite case. As of Hand's ruling. 52 Cases the "clear and October 3,2008, Westlaw showed dif­ present danger" test in the immediate after­ ferent citing references44 to it. Well over half math of Brandenburg dealt with a wide va­ of the time (a total of I riety of many of them rather far re­ these citations appeared in law review articles. moved from the one that gave rise to the "clear These often had little or to do with and present test. the and probable involved campus rules dress were 813 case citations to 59 and grooming,53 and one held that public nu­ ofthese involved the "grave and dan­ dity does not constitute indecent exposure. 54 test. Just 40 of those were decided after The issue in another was the of a pris­ Brandenburg v. Ohio (I 969).46 oner who was confined in state while That detail is significant, for in Branden­ awaiting trial. 55 Two cases arose out of dis­ the Supreme Court adopted a much more putes over the regulation on college DENNIS V. UNITED TES 293

56 campuses. In lone federal district COUJi right to a fair trial on the one hand and the in New York relied on Dennis in invalidat­ to freedom of on the other. ing state guidelines review When the media was a party in one of these by corrections officials of mail received cases, it seems to have lost more often inmates, and another in California did so than it won. Not all ofthese cases involved the in holding ordinances classic conflict between the First Amendment members of religious societies that wished 10 of the media on the one hand and the engage in solicitation to first obtain a permit58 fair trial rights of a criminal defendant on the There is one area, in which number Dennis and its famous "grave and probable arose out of civil UU,,-(\',*VIIl. danger" test have continued to play a case, it was the ddendant significant role since have been held in for a statement that he been extensively utilized to resolve conflicts had made,64 and in another the defendant was between freedom of speech on the one hand efforts by the and the to a fair trial on the other. There informa­ have been twenty cases of this tion about his case.65 type. The and probable test Constitutional law scholars John Nowak was first raised such a context in 1 and Ronald Rotunda thought that the trying success- Court's application of the "grave and to annul and vacate test to these contempt-of-court cases an order the news media from pub­ indicated that perhaps the Court in­ lishing names and photographs of witnesses tended to a modernized version of the in a murder cited it in Sun of danger" standard as a gen­ San Bernardino v. Court.59 On June eral test for the constitutional ity 11, I although it cited Hand rather ofall restrictions on freedom of speech.66 But than the Supreme Court's Dennis ruling, an that was a misreading of its intentions. What­ Ohio court employed the and probable ever the Court may have had in mind, "out­ danger" test in that the press could not side the ofcourt cases, different tests be excluded from a criminal trial. 60 These de­ had to be to evaluate the compet­ cisions were precursors to the news media's restraints are victory in Nebraska Press Association v. Stuart 61 In that case, a state in antICI­ pation of a trial for multiple murders that had attracted news coverage, entered nificant in cases pitting freedom an order that modified by the Nebraska against fair trial rights. But outside this one Court) restrained the small area, Dennis v, United States has been from publishing or hr".~cI,,~ for decades basically a corpse. The confessions or admissions made Court has simply its formulation of dant and other facts strongly him. what kind may be and what The U.S. kind is 68 quoting and on Hand's Dennis Yet, the fac t that it is Iit- and the rule it had announced. tie more than a discredited relic, historians Nebraska Press Association seemed to continue to treat Dennis as if it were of portend great things for Dennis. It led to a It seems to matter to them, even bevy of decisions in cases that used the bal­ it does not to most The ob­ ancmg of the and vious question This is not one of danger" test to resolve conflicts between the those decisions like Schenck, although 294 JOURNAL OF SUPREME COU HISTORY

The reason constitutional his­ torians continue to treat Den­ nis as a landmark decision even though it has become largely ir­ relevant legally is that it ex­ emplifies so well an important (if unfortunate) era in Ameri­ can history-McCarthyism. The era is pejoratively named after Wisconsin Senator Joseph P. Mc­ Carthy (pictured), who exploited the virulent anticommunism that gripped America around 1950 for his own political ends.

outmoded, retains because it is in American one of the blocks of modern consti­ what they per­ tutional law. It is an old mistake (and ceived as the threat ofdomestic Communism. a a bad one at Court broad coalition long ago rectified. The reason constitutional historians con­ tinue to treat as decision that oaths, blacklists, and even criminal prosecu­ has become is that tion. Anticommunism became "the dominant it exemplifies so (if un­ theme in American fortunate) era in American Dennis v, rowing "the spectrum of """"jJl<1U,,, JJUlI"!,,"l United States illustrates better than any other debate."n One reason reached case the impact on the law of the virulent the extremes that it did, as Richard Fried has anticommunism that gripped America around pointed out, is "the nation'5 1950. Usually referred to as "Mc­ appreciation of the importance of civil liber­ Carthyism," this phenomenon takes its name ties for repudiated minorities,,'74 bet­ from the demagogic Senator Joseoh R. Mc­ ter illustrates America's lack of commitment Carthy, (R,-Wis,), who so during the McCarthy era to the the passions of the to advance himself of the unpopular than does Denl1is v. politicaJly. But United States and the war on the Com­ much more than the career of the Wisconsin munist that it unleashed. senator who gave it a name,"69 This sweep- Although nurtured an com­ indiscriminate assault on mitment to the of constitutional and civil liberties was, as Ellen Schrecker ex­ that attack was not as irrational it "the most widesoread and longest last- once appeared to be. Students of Dennis. such DENNIS V. UNITED STA 295

as Peter L. and 76 have security to commitment to it portrayed the case as the product of a po­ unlikely that an American cadre would break motivated The implica­ controlled by the tion, of course, was that the leaders of the took orders CPUSA were simply innocent victims of a re­ as well as money from abroad. "The Com­ Students of the broader munist International sent thousands of writ­ such as Fried ten instructions to the Communist of and Schrecker, have viewed Dennis the same the United States. American Communists

ODHllon. "[tlhe case served jus­ do what the Com intern tice less to con­ vict the Elevcn than to was never insubordination; Schrecker that Dennis "shows how to 85 Researchers valuable the demonized image ofCommunism John Earl and was in Washington's to the M. Anderson found "no documents in the So­ Communist party.,,78 viet archives [or] in the records of the Com­ Recent research reveals that the CPUSA munist International or in those ofthe CPUSA was more of a demon than we thought it that show American Communist leaders refus­ was. The of the Soviet Union ing to carry out Comintcrn orders as a matter up to Western researchers some documents of the archives contain that are rather revealing concerning the re­ assertions of American Commu­ between the Communist party of nist loyalty to the 'first land of socialism. ",86 the United States and America's Cold War Not in the communism in enemy. So are the messages that were inter- the United States but also in the docu­ and decoded the 1\'ational Secu­ ments "Moscow decided how the Amer­ classified Venona ican Communist movement be run in which between ]944 and J980 in­ matters and choice of tercepted and deciphered hundreds of Soviet the Comintern diplomatic cables information from of the Amer­ otTicers in the United States to ican party. But documents viewed by Klehr, their in Moscow. and Anderson disclose that it also mi­ Released to the between 1995 and '1"'m~lCU the business of the go- these messages depict an American Communist that maintained a close and action far from inne-ent relationship with Moscow. 79 whose personal "confirm. _. that the Soviets exereised habits Moscow deemed 88 Soviet considerable control over the CPUSA."8o This dictator Joseph Stalin himselfintervened in the went far the SOlt of Ue()IOI,nCal influ­ business of the playing a role in the process that led to the removal ofEar! Browder such as from of the American Communist thing, "the CPUSA received generous Soviet in 1945.89 subsidies. Money, much ofit from Moscow, Stalin's interest in Browder was under­ to cement the loyalty of the American for the man who headed the CPUSA Communist party to the USSR. Most CPUSA from 1932 to J945 was deeply involved in es­ cadre received salaries, with money that pionage for the USSR. He served as a sort of came from the Russian party or one of its affil­ talent scout for the 1\'KGB and the GRU iates. These Soviet subsidies ensure a viet military recommending "il­ loyalty to the USSR that was economic as well legal" members of the American for as tied personal financial agent work.90 "Hlegals" were Communists 296 JOURNAL OF SUPREME COURT HISTORY

The collapse of the Soviet Union opened up to Western researchers some documents that have revealed that the top cadres in the Communist party of the United States received financial aid from Moscow to help solidify their loyalty to the USSR.

to the secret gatlons well as those contact with the CPUSA seven other individuals whom he identified clandestine caucuses of govern­ as Russian Other government employ­ ment employees. They helped the Comintern ees not named Chambers also collected in­ with international operations and also assisted telligence for the USSR. For example, Soviet Soviet intelligence agencies with 91 archives disclose that Morris Cohen, a physi­ Whittaker Chambers later identified thirteen cist who worked on the Manhattan Project of these individuals, among them helping to build America's first atomic bomb, as been involved in for the and his wife both for the Soviet Union. Hiss denied he had commit­ So did other members of the CPUSA's secret ted for the Soviet but the apparatus. the Venona intercepts are Venona decryptions confirm Chambers' alJe­ forty-nine messages that settle once and for DENNIS V. UNITED STATES 297 all the about whether Julius Rosen­ tion of his "revisionism." excluded him berg was a Soviet spy; these messages establish from the leadership ofa reconstituted Commu­ that he was.96 nist which within a year expelled him.IOI This made the CPUSA a threat to Thus, Browder, the American Communist the national of the United States. It who had been the most involved in was not, as Justice William O. Douglas insisted covert activities on behalfofthe USSR, was no in his Dennis dissent, a "mere bogy-man.,,97 a member, let alone a leader, But how a threat was it? Browder's role of the CPUSA when the indicted in Soviet and his of the National Board in July 1948 for covert activities were uncommon among lead­ conspiracy to violate the Smith Act. 102 Nev­ 98 ers and ordinary members of the CPUSA. ertheless, ,p,nn'",,, Stone, although quite crit­ Chambers was recruited to serve as a spy for the New York station ehief of the GRU by Max a CPUSA official99 But that seems to have been Only a hand­ national communism, and it did involve es­ ful of American Communists served as Soviet pionage the government of the United sources, and group and ac­ States."IOJ The problem, as Stone sees it, is that cording to Alan Weinstein and Alexander Vas­ the Dennis defendants were not charged with siliev, all except for those in­ any of these Rather, the government volved in atomic were accused them to teach and advo­ by Browder himself loo cate Communist doctrine. In his opinion, "to That is ironic, for by the time of the Smith the extent there was criminal conduct, the in­ Act indictments in Browder was dividuals who in such conduct should no a leader of the CPUSA. The reason have been he was not is hugely ironic. He had been dis­ placed from of the American Com­ munist movement in June I still more iron­ defendants in DennL, ically for failing to follow the latest twist in the Marxist-Leninist doctrine.,,,o4 Russian ideological line. In 1944, to Neither that doctrine nor the leaders ofthe promote American support for the embattled that championed it a threat Soviet Union in World War Browder had to the United States. The closest to ev­ brought about the dissolution of the CPUSA idence that they did was a Venona intercept and its replacement with a "Communist Polit­ that shows that Dennis was in con­ ical Association. The new pro­ tact with a group of concealed Communists in moted a of cooperation between Amer­ the Office of Services and the Of­ ican Communists and all democratic forces in fice of War Information. 105 Even if he was the United States-within a capitalist frame­ in some kind of clandestine commu­ work. In 1 however, with the end of the nication with government that did war in Europe French Commu­ not make the doctrines he espoused in nist leader Jacques Duclos, who was under­ any more than they otherwise would stood have been. Dennis and his co-defendants were ing for an articl.e not charged with to engage in es­ this accommodationist approach. The rest of or revolutionary but rather the national leadership demanded that Brow­ with conspiring to teach and advocate the vi­ der Duclos's criticism ofthe direction in olent overthrow of the government. The prin­ which he had taken their organization. Brow­ cipal evidence against them was five books: der secret Soviet refused to join his Marx and The Communist Mani­ comrades in this Soviet-inspired condemna­ festo (1848), Lenin's State and Revolution 298 JOURNAL SUPREME COURT HISTORY

(191 Stalin's Fundamentals of Leninism That, of course, is what was all (I and The History of the Commu­ about. Virtually the entire nation was eventu­ of the Soviet Union overcome a virulent and f"r_FP"" (I and The Program of the Commu­ Red Scare. I 14 nist International (1928).106 Besides There was far more to what Fried has char­ 15 these were available in most acterized as America's 111 libraries, George Kneip, a Justice De­ than just the Dennis case. But "Dennis was who analyzed a massive brief decided in 1951, when was at on the Communist party assembled the its peak."116 The "grave and probable" danger advised the US. Attorney for the South­ test that the Supreme Court used to the ern District of :-.lew York that the unjustifiable of a handful "would be faced with a difficult task in seek- ofCommunist leaders for their harmless teach­ to prove a reasonable doubt that and advocacy has now largelv fallen into the Communist advocates revolution desuetude, But while the test is no longer Im­ violence."lo7 As Stone observes: 'The notion memories of its effects on Cold War that the government would be helpless to com­ Although destined to have a bat a truly conspiracy if it could shelf life, it fit perfectly the era that

As Klarman observes, believe the. , . Court made a er­ ror when it failed to stand up for freedom of and association" in Dennis. I But this an understandable error. Klarman whether it is realistic to espionage in America, considers the Dennis that in 1951 the Court could have de­ prosecution "senseless."[ 10 cided civil-liberties cases in any more But Dennis was not an isolated incident. tive manner. I IS Dennis was a particularly egre­ This senseless of the leaders of of a pervasive the CPUSA for their ideas rather than their But it is also a very important of actions was a small of a much broader that As Schrecker, the author phenomenon. "With the Cold War at its height of and fears ofdomestic subversion " as historian Michael Klarman has pointed nism outside the Constitution out, "communists were to be sim­ the activities of the too dangerous to warrant First Amend­ party's] leaders the law, the success­ ment protection,"1 II The faced a real ful invocation of the .Smith Act made all other and dangerous enemy in the Soviet Union, forms of against Communists, ex­ and "assumptions~about the critical nature Communists, and alleged Communists that of the world situation and the alien nature much easier, 19 As Hall emphasized in exem­ of Communism~enabled most Americans to of the Cold War on civil view the repressive measures taken al- liberties with excerpts from my book about Communists as necessary for the sur­ federal government's invocation vival of the United States."1 It was not of the Smith Act one of the central is­ the leaders of the CPUSA who were the vic­ sues of the Cold War: what was the scope of tims ofthis distorted perception, "The political civilliberty,"J20 limited, it showed. chill that settled over the United States during That powerful demonstration of the the late 1940s and 19505 made many Ameri­ essence of an era makes the Communist case, cans hesitate to criticize the government.,,113 however it may now seem to DENNIS V. UNITED STATES 299

la'Wyers, very to historians. To 77-112. One of the twelve men originally indicted did like Lochner v, New it represents an not stand trial with the olhers, The case of William Z, if extremely unfortunate, stage in Foster was severed from that of his co-defendants because a severe heart condition had supposedly rendered him too American legal That is to ill to handle rigors ofa trial, {d, at make Dennis v. United Stales truly a landmark 17 United Stales v. Dennis, i 83 F2d 20 I (2d Cir. 1950). case. 18 341 US, 494 ( I) 19 Associate Justice Tom Clark did not participate because he had been the Attorney General at the time that the ENDNOTES Department initiated the prosecution, 1341 US, (1951), 20Chief Justice Fred Vinson '$ opinion had the support R, Belknap, "The Smith Act and the Communist of only three other members of the majority, Associate Party: A Study in Political Justice" (Ph,D dissertation, Justices Felix Frankfurter and Robert Jackson filed con­ UniverSity of Wisconsin, 1973),' curring opinions that relied on entirely different lines of 3MichaI R, Belknap, Cold War Political Justice: The reasoning. Smith Act, the Communist Party, and American Civil 21 Belknap, Cold War Political Justice, supra note 3, at Liberties (1977). 156 4Michal R, Belknap, "Cold War in Courtroom: The U.S. 298 (1957), Foley Square Smith Act Trial," in American Political 23Michal R, Belknap, The Supreme Court Under Earl Trials (Michal R, Belknap, ed, 1981), A revised and Warren, 1953-1969 63 (2005) expanded edition of this book, containing a somewhat 2"Confidential Mcmorandum for Msrs, Bator and Schlei, revised version of the essay DenniS, appeared in 1994, July 8,1956, Box 483, John Marshall Harlan Papers, Mudd Michal R, Belknap, American Political Trials Library, Princeton, New Jersey. ed, 1994), Cold War Political Justice, supra note 3, at 5Michal R, Belknap, "Dennis v, United Stales: Great Case 248, The Court declared that the Smith Act did not prohibit or Cold War Relic?" 1993 Journal a/Supreme Court His­ advocacy and teaching of the violent overthrow of the goverrunent as an abstract principle, divorced from any IOIY 39, 6William The Birth of the Modern Constitu­ effort to instigate action to that end, The distinction was tion: The United States Supreme Court, 1941-1953 between advocacy of doctrine, which it did not (vol. XI! of the Oliver Wendell Holmes Devise History prohibit, and "advocacy directed at promoting unlawful of the Supreme Court of the United States) 535-78 action," which it did, The latter what must be proved in (2006). a Smith Act case, 354 U.S, at 319, 26 7Melvin I. Urofsky and Paul Finkelman, A March of 354 US, at 10,,12, The Court declared, "We conclude Liberty: A Constitutional History of the United States, , that the Communist Party came into being in vol. II, From 1877 to the Present 758-63 (2d ed, 2002), 1945, and the indictment was not returned until 1951, the 8Michael Les Benedict, The Blessings of Liberty: A three-year statute of limitations had mn on the 'organiz­ Concise History ofthe Constitution ofthe United States ing' charge and required withdrawal oftha! part of the 299-300 (2d ed, 2006), indIctment tl'om the jury's consideration," Id. at 312, 9Me]vlll Urofsky and Paul Finkelman, Documents of Cold War Political ,Justice, note 3, at American Constitutional and Legal History, vol. II, 189-90. :Ii'rom the Age of Industrialization to the Present 718­ 28 John Williamson, Dangerous Scot: The Life and Work 22 (2d ed, 2002). of an American Undesirable 172 (1969), lOPaul Finkelman, James W Ely, Jr" and Kermit Hal!, Cold War Political Justice, supra note 3, at American Legal History: Cases and Materials 535-38 190-92. ed. 2005), 301. Edgar Hoover, Masters of Deceit: The Story ofCom­ II Kermit Major Problems in American Constitu­ munism in America and How to Fight It 178 (1958) tional History 241-89 (1992). 31 Belknap, Cold War Political Justice, supra note 3, at note 6, at 403 192, 32]d. Kalven, Jr" A Worthy Tradition: FI

R, Stone, LoUls M, Seidman, Cass R, Sunstein, port Controls: National Security in Changing Environ­ Mark V Tushnet & Pamela Karlan, Constitutional Law ment," 30 Am, Bus. 607,675 (J 993); "Murder in Mas­ ed, Aspen 2009), sachusctts: The Criminal Discovery Rule from Snelling to 38See Erwin Chemerinsky, Constitutional Law: Princi­ Rule 14," 40 Am, J Legal !-Jisl 438,449 (1996); "Up in ples and Policies 990~93 ()'d ed, 2006), Smoke: Online Privacy Becomes the Latest Casualty in the 39 Dennis v, United Siales, 341 U.S, 494, 510 (1941), War on Drugs," 27 Am, .J. Trial Advoc. 169, 196 (2003); supra note 38, al 995, "On Statutory Rape, Strict liability and the Public Wel­ 41/d, As my California Western colleague, Laurence Ben­ fare Offense Model," 53 Am, L Rev. 313,385 (2003); ner, has insisted to me, this is not entirely "The Proposed New Columbia Constitution: Creating a rate, very great evil may reduce the required likellhood 'Manacled State,'" Am, U L Rev. 635, (1983); of harm to minimal, even microscopic, level. But it does "What the Supreme Court Isn't Saying About Federalism, not get rid of it entirely This is a balancing lest, and there the Ninth Amendment, and Medical Marijuana, 59 Ark. must be somelhing against which to balance the harm, L 779 (2006); "Can Reasonable Doubt Have Also, even ifthe gravity of the evil may eliminate the need an Unreasonable Price? Limitations on Attorney's Fees that it be likely, likelihood and imminence are not the same Criminal Cases," 41 B.e L Rev. 1,70 (1999); "Tension Something can be to occur and still between the National Security Law and Constitutionalism imminent. The converse of course, impossible in South Korea: Security for What?" 15 B, Inl'l, L.1 thing cannot be about to happen that is never going to 125, l74 (1997); "Spinning, Squirreling, Stilet­ happen all), but Chemerinsky does add an element that ting and Other Stratagems of the Supremcs," the Hand formula fai Is to address specifically, The root of ReI' 503,533 (1993). the problem lies with Hand, not Chemerinsky, Hand's for­ 46 395 U.S, 444 (1969). mula really addresses only gravity and probability, while 47David Cole, "Judging the Next Emergency: Judicial ignoring the imminence requirement that looms large view and Individual Rights in Times ofCrisis," 101 Mich. in other formulations of the "clear and present danger" L Rev. 2565,2573 (2003). lest 48395 U.S, at 447, 42Francis D. Wormuth, "Learned Legerdemain: A Grave supra note 38, at 999, but Implausible Hand," 6 Westul'll Quarterly 543, 50 Bernard Schwartz, "Holmes versus Hand: Clear and 548 (1953). As Wormuth sees it, Hand's position was that Present Danger or Advocacy Unlawful Action," 1994 "speech which raises a grave and probable danger may be Sup. C/, Rev, 209,240. punished even though the danger is remote in time," Id. 51 In a concurring opinion, Justice Douglas argued for rendering of the judge's position is somewhat lacking elimination nOt only ofthe Dennis reformulat ion but ofthe JI1 precision, Really. what Hand created "grave or entire "clear and present danger" US, at 454, probable danger" test, since under his formulation, If the He obviously believed that both survived Brandenburg gravity harm is great enough, the probability can be e,g, In re Maller Entit/ed Siale " Spillers, 813 So, nearly nonexistent. 2d 1184, 1186 (La. App, Cir. 2002); In re A Minor, 43These and the other statistics in this paragraph were ilL 2d 247.266.537 N.E. 2d 292, 300, 130 III compiled by my research assistant at California Western (1989); Us. Smith, 555 F2d 249, 253 Cir. School of Law, Krikorian, and California Western 1977); Nebraska Press Ass'l/ v. Sluan, 427 US, 539, 562 School of Law Research librarians Brandon and (1976). In addition, a judge on the States Court Ian Kippenes, with the help of several research attorneys of Appeals for the Armed Forces, after quoting Hand's at West law, I would like to express my gratitude to all of opinion, stated erroneously that Hand was quoting the them help, Supreme rather than Ihe other way references include administrative materi­ around, US v. Wi/cox, 66 M,J 442, 458 (2008) (Baker, J, als, secondary sources, briefs and other court materials, dissenting), e,g.. "'Under Influence:' Pornography and v. Townley, 464 F2d 587 Cif. 1972); MOll­ Alcohol-Some Common Themes," 29 Akron L 35, Unified Sch. Dis!. o! Education, 21 46 (1995); "How Would Justice Hugo Black Have Writ­ Cal. App. 3d 323, 98 Cal. Rptr. (Cal App, 5,h Dis!. len Brown If, Board of Education," 56 Ala, L Rev, 851, 1971); Haller v, Los Angeles Cily High School Dist" 853-54 (2005); "Hamdi Meets Youngstown: Justice Jack­ 10 FSupp, 1309 (C.eCaL 1970); Stevenson \" Wheeler son's Wartime Security Jurisprudence and the Detention Counly Bd ofEd , 306 FSupp, 97 (S.D, Ga. 1969), of Enemy Combatants," 68 Alb. LRev. 1J27, 1 144 (2005); 54 Siale v, Nelson, 178 N, W,2d 434 (Iowa 1970), "Rust in the Laboratory: When Science Is Censored," 58 55 Conklin v. Hancock, 334 FSupp. 1119 (D.N,H, 1971), Alb. L. Rev. 299, 345 (l994); "Criminal Liability for Docu­ v, Forlune, 3 I I FSupp, 240 (N.D. Miss. 1970); ment Shredding after Arthur Anderson, Am, Bus, Slacy \'. Williams, 306 FSupp, 963 Miss, 1969) LJ 647,688 (2006); "A Road Map to Understanding Ex­ 57 Jackson 1'. Ward, 458 F Supp, 546 (WD,NY 1978), DENNIS V. UNITED STATES 301

58/nlernationai Sociely fiJI' Krishna 0/ Klehr, John Earl Haynes, and Kyrill 1\1, Ander­ Berkeley~ Inc. Kearnes, F,Supp. 116 (E.D. Cnl. son, The Soviet World of American Communism 274 1978). ( (998). 59 29 Cal. App, 3d 815, 105 CaL (Cal. App. 4th Dis! 83!d at J62-{53. 1973). 84!d at 14, 60S/ale ex. reI. Daylon Newspapers, Inc. v. Phillips, 46 851d, Ohio St. 2d 457, 35 N.E.2d 127,75 O.O.2d II (1976). 86/d. 61 427 US, 539 (1976) S71d. 62 427 US, 88M 63See Koch Koch Indllstries, Il1c, F Supp,2d 1409 89 Alan Weinstein and Alexander Vassiliev, The Haunted (D.Kan, 1998); Keene Corp, v Abare, 92 Md, App, Wood: Soviet Espionage in America-The Stalin Era 608 A2d 811 (1992); Bailey v, Systems Innovation, inc., 305 (1990). 852 E2d 93 (3d Clr. 1988); HuskJl v Nilllmw! Broadcast­ Klehr, et aI., supra note 82, at 234. ing Co, Inc., 632 ESupp, 1282 (N.D,IlI. 1986). 91 Haynes and Kiehl', note 79, 93. 64US Smith, 555 F.2d 249 Cif. 1977). 92 fd. at 90-9l. 65US Carmichael, 326 ESupp.2d 1267 (M.D. Ala. 93G, Edward White, Alger Hiss's Looking-Glass Wars: 2004), The Covert Life of a Soviet Spy xvi (2004), "From the 66John E. Nowak and Ronald D, Rotunda, Constitutional moment that Whittaker Chambers accused him of being a Law 962 (4th ed, 1991). The precise quotation found here Conununist, and subsequently becoming an agent for So­ does not appear in later editions of the book, but what the viet military intelligence, Alger Hiss strenuously and per­ authors to say is essentially the same sistently denied being either, and made extensive efforts 67 fd. at 963, to enlist the public in support of his of innocence." supra note 6, at 567. !d 69Ellen Schrecker, Many Ar£' the Crimes: McCarthyism and Klehr, supra note 79, at 90. in America x (1998), et ai.,slIpra note 82, at 217-l8. 70 ld. and Kiehl', supra note 79, at 6. 71 97 341 US. at 72Richard Fried, Nightmare in Red: The McCarthy Era 98Weinstein and Vassiliev, supra note 89, at 304, in Perspective 8 (1990), 99/d, note 69, at x. 100ld. at 304. Haynes and Kiehl' would seem to put the 74Fried, supra note 72, at 9, number much higher, but while they say the Venona in­ Peter L. Steinberg, The Great "Red .Menace": tercepts identify 354 American citizens. and United States Prosecution of American Communists, resident aliens having covert relationships with Soviet 1947-1952 ix-xiv, 87-114 (1984). intelligence agencies, they are nearly as specific about 76See Belknap, Cold War Political Justice, supra note 3, how many of these were Communist party members, at 3-7, Haynes and Klehr, s"pra note 79, at 9. note 72, at 94. 101 Steinberg, supra note at 64-66. SrhT?.rkpr supra note 69, at 102Belknap, supra note 3, at 51 The indictment did accuse 79John Earl Haynes and Harvey Kiehl', Venona: Decoding the members National Board of conspiring not only Soviet Espionage in America 36, 8-9 ( 1999) with each other but also with other persons to supra note 36, at 409. organize the Communist party of the United States. It Steinberg, supra note 75 at 62-{53, 66-67, alleged that this conspiracy had begun on or about April 75, 79-90, 267; Belknap, Cold War Political Justice, I, 1945, and since Browder was still a member of the supra note 3, at 23, 37, 38, 43-44, 156, 205-6. Indeed, party that time, and was not even excluded from a John Earl Haynes and Harvey Kiehl', who have pub­ leadership role until July, he could have been considered lished translations ofsome ofthe Vcnona intercepts, wrote one of those others. Steinberg, supra note 75, at It in 1992: "The party promoted communism and the in­ would, however, be the height ofabsurdity to consider him terests the Soviet Union through political means; es­ participant in "conspiracy" the whole purpose of which pionage was the business of the Soviet Union's intelli­ now to repudiate his leadership the direction in gence services, To see American party which he had been taking the organization. chiefly as an instrument of espionage or a sort fifth supra note 36, at 410, column misjudges its main purpose" The American Communist Movement: Storming Heaven ftself 108 and Klehr, supra note 79, at 346, The Office of (1992). Stmtegic Services (OSS) was the World War II ancestor of 302 JOURNAL COU HISTORY

the CIA. It handled classified information. access to which 113M at xiii. 4 was restricted, The Office ofWar Information, on the other 11 See Klarman, supra note III, at 30, hand, was essentially a government information agency, Its IISThis is the title of Fried's 1990 survey of the McCarthy business was to tell people what the American government era, See Fried, supm note 72. was doing, Standing alone, a repon that someone was in I supra note I I I, at 30. contact with people employed by both agencies proves the OSS itselfsometimes recruited political backgrounds because oftneir supra note 69, at 190-91, humpe. supra note 82-83, (1905), Lochner, like the later Dennis F. Kneip, "The CommUnist Party of the United deCision that, although now repudiated, universally Slates" (unpublished memorandum), Box I, John EX, Mc­ regarded as an extremely important landmark in American Gohey manuscripts, Harry S, Truman Library, Indepen­ constitutional history. See generally Paul Kens, Judicial dence, Missouri. Power and Reform Politics: The Anatomy of Reform IUS Stone. supra note 36, at 409. Politics (1990) and Paul Kens, Lochller v. New York: I09/d at 408. Economic Rl"gulation on Trial (1998) Indeed. Laurence IIOWeinstein and Vasiliev, supra note 89, at 309, Tribe, one of the leading authorities on conslitutionallaw, III Michael Klarman, "Rethinking the Civil Rights and refers to the entire period between 1905 and 1937 "the CiVil Liberties Revolutions." 108 1'1,. L Rev 1.29 (1996), " Laurence Tribe, American Constitutional S"h,.""kl'r supra at xiv 1988). National League of Cities and the Ephemeral Nature of Significant Supreme Court Cases

EUGENE HICKOK

For many years, I taught law students at the Dickinson School of Law (Penn State's law school now, a institution then) a seminar entitled "The Constitution." For a semester we would seek to get to know the document a careful of it, with some of the works that those who wrote the Constitution would have read and some that wrote, various essays scholars and political and various Court cases. The goal was to these young to try to determine what, relationship there might be between what the Constitution says and what we now say it says. We would Iy begin with Article I tion says "among the several what

nn,,"p'p/i through the Constitution, does that mean? All of the students had com­ at the executive and then pleted at least one course in constitutional law cial articles. We would then consider certain and would into the no doubt constitutional principles, such as representac remembering some case that shaded their im­ tion, equality, separation of the idea of Commerce among the upon power to several States. I would then ask them the Commerce with nations, and among r grow tomatoes and lettuce and the several States, and with the Indian cucumbers in my backyard every sum- I would ask my students what commerce those tomatoes and cucum­ what does the word "commerce" mean? bers when and harvest the I.ettuce and go Now these are budding to my kitchen and fix myself a salad. so nothing is as simple as it should Am I in commerce? be. Typically I would have to pull it out of law students them. Is commerce something? Is law commerce something? The Constitu­ dressing National League of Cities and the Ephemeral Nature of Significant Supreme Court Cases

EUGENE HICKOK

For many years, I law students at the Dickinson School of Law State's law school now, a institution then) a seminar entitled "The Constitution. For a semester we would seek to to know the document a careful of it, with some of the works that those who wrote the Constitution would have read and some that wrote, various essays by legal scholars and political scientists, and various Supreme Court cases. The was to get these budding young attorneys to try to determine what, if any, relationship be between what the Constitution says and what we now say it says, We would typically with Article I tion says the several what and through the does that mean? All of the students had com­ at the executive and then judi­ pleted at least one course in constitutional law cial articles. We would then consider certain and would into the no doubt constitutional principles, such as some case that shaded their im­ and so on, of the idea of Commerce among the upon Congress's power to "regulate several States. [ would then ask them the Commerce with foreign nations, and among I grow tomatoes and lettuce and the several States, and with the Indian Tribes," cucumbers in my backyard every sum­ I would ask my students what commerce is; mer, I then pluck those tomatoes and cucum­ what does the word "commerce" mean? bers when and harvest the lettuce and go Now remember, these are budding to my kitchen and fix a salad, so is as as it should Am I in commerce? be, Typically I would have to pull it out of Student being students, law students being them, Is commerce something? Is Jaw you can how the discus­ commerce selling cC\rnpth. The Constitu­ sion usually proceeded, Do you dressing 304 JOURNAL OF SUPR E COURT HISTORY on the salad? If so, did you buy it at the gro­ Four Corners Utah, New Mexico, cery store? ("10, I like my salads "naked.") Did and Arizona-where one can quite literally put the tomato and cucumber and lettuce four in four different states at the The mind ofa soon-lo-be attorney is a same I would assert that state marvelous is it not? boundaries was a somewhat exercise In any event, after several tortuous min­ and an outdated and would ask utes of such discussion would say what some one more time: states? We would then of the students sort of: that the launch into a discussion of a constitutional Court years ago decided that growing such principle that is almost to many who for my personal toil in law schools: federalism. that could quite The case I have been asked to explore through its tonight, National exercise of the Commerce Clause of the Con­ fits nicely into those stitution. We then would consider one of my my law students on the favorite cases, Wickard v. Filburn,1 a case that Commerce Clause I will up later. how both ideas have evolved over time. During another I would distribute Handed down in was a 5-4 deci­ a blank map of the United inform sion. The majority was written the students that this was a pop quiz, and Justice William H. with Chief Jus­ the states. You can tice Warren Just.ices Potter Harry A. Blackmun, and Lewis F. Powell Justice Blackmun wrote a brief concur- Justice William 1. Jr" wrote a rather heated tices Byron R. White and Justice John Paul Stevens filed a states, such as Texas. opinIOn. the students would run in the middle National League seems an appro­ of America. Nebraska and Colorado priate case to illustrate the and Wyoming. Where's Utah? that's Idaho. of some of the Court's You can cause, although it overruled precedent After a few tortuous with no sin­ Maryland v. Wirtz,3 National gle student, ever, being able to the itself was overturned only a few years later assignment successfully, I would offer a com­ by Garcia v. San Antonio Trallsit 4 promise: teams of three but Some of the questions and issues raised in now you must identify the state as these cases remain central to the discussion well. Moans. No, Las is not the of Congress's commerce power, the tal of Nevada. No, it's not Joplin, of the states in our federal system of govern­ Albuquerque, New Mexico. ment, and how those two ideas work them­ selves out under our Constitution. students a issues were raised by members of the Sen­ states? They would mumble ate during the confirmation hearings for Chief the need for subunits to manage Justice John G. Roberts and Associate Justice policy and affairs. I would counter that Samuel Alito. Members ofthe that is an argument for subunits oftheir Commerce Clause authority, wanted to not for states. Pointing to the know whether the nominees might begin 10 cut ica where four states touch one another-the back on Congress's commerce power: I recall NA nONAL LEAGUE OF CITIES 305

Secretary of Labor Frances Perkins (pictured) signed the Fair Labor Standards Act in 1938, mandating minimum wage and overtime pay to employees. The Act did not, however, apply to employees of slale and local governments. that Senator Arlen wondered VISions to pay employees minimum hourly "Is Wickard v, Filburn still good constitutional wages, with time and a half for overtime. law?" These were almost exclusively private-sector means transitory, changing, employers, The Supreme Court upheld the shifting, I think it is safe to say that much of FLSA as an exercise Commerce what passes for constitutional law is just that: Clause power under the Constitution in United changing, shifting, even the States v, in 1941.5 In that case, the Court and our legal system certainly embrace Court said the of stare or precedent. Whatever their motive and purpose, Certainly this is true regarding the Court's un- , of commerce which do derstanding ofthe Commerce Clause and fed­ not infringe some constitutional pro­ eralism, both ofwhich have evolved over time. hibition are within the There are reasons for which I will go into conferred on Congress toward the end of my presentation. For now, merce Clause, let's take a look at National o/Cities v, UselY· In the 19605, to extend the When by Congress and signed reach of FLSA to certain public into law in the Fair Labor Standards that to persons who were employed in "en­ Act (FLSA) specifically excluded states and in commerce or the pro­ their political subdivisions from its coverage. for commerce. In 1966, FLSA employers covered its pro- Congress removed previous that 306 JOURNAL OF SUPREME COURT HISTORY had been extended to the states and their tional League of Cities, brought suit chal­ political subdivisions with respect to state hos­ lenging the validity of the 1974 amendments. pitals, institutions, and schools. The Supreme Interestingly, they did not challenge the ple­ Court upheld the changes in Maryland v. nary power of Congress under the Commerce Wirtz. Clause. Rather, they argued that Congress "in­ In 1974, Congress sought again to fringed a constitutional prohibition" running broaden the coverage under FLSA to in­ in favor of the states and that the constitu­ clude "a public agency." To accomplish this, tional doctrine of sovereign immunity pre­ Congress employed language asserting that vented Congress from exercising authority in "enterprises engaged in commerce or in the the manner it chose with the amendments. production of goods for commerce" encom­ For the states, Congress's commerce power passed "an activity ofa public agency." Indeed, was limited by the sovereign immunity of the Congress simply determined that public agen­ states. When states were acting as states­ cies are engaged in commerce, by definition, engaged in performing essential governmental and are therefore subject to FLSA. functions-they could not be regulated by the Commerce Clause. The employees ofan enterprise which The district court sided with the U.S. Sec­ is a public agency shall for purposes retary of Labor, William Usery, Jr., citing the of this subsection be deemed to be precedent of Maryland v. Wirtz, but noted employees engaged in commerce, or it was "troubled" by the argument that the in the production of goods .lor com­ amendments intruded upon essential functions merce, or employees handling, sell­ of state and local government. It left it to the ing, or otherwise working on goods Supreme Court to decide if it should "draw or materials that have been moved in back from the far-reaching implications" of or produced for commerce. 6 the Wirtz precedent. Put another way, Congress seemed determined In his opinion for the Court, Justice Rehn­ to make state and local governments adhere quist quickly pointed out that Congress's com­ to FLSA's minimum-wage and maximum­ merce power is plenary with regard to private hour provisions, and therefore it simply pro­ activity, citing Chief Justice John Marshall in claimed that they were engaged in com­ Gibbons v. Ogden,? and that its power extends merce and thus subject to Congress's Com­ to activity even purely intrastate in character merce Clause authority. Congress did retain where the activity effects commerce among the existing general exemptions for execu­ the states. He then sought to distinguish the tive, professional, and administrative person­ argument being made by the appellants in this nel and those holding elected office. With instance, recognizing that they were not chal­ these changes, Congress imposed upon almost lenging the commerce authority of Congress. all of public employment the minimum-wage "Their contention, on the contrary, is that when and maximum-hour restrictions that had pre­ Congress seeks to regulate directly the activ­ viously been restricted to private employers ities of States as public employers, it trans­ ofemployees engaged in interstate commerce, gresses an affirmative limitation on the ex­ with only modest exemptions for employers ercise of its power akin to other commerce without a private-sector counterpart, such as power affirmative limitations contained in the fire protection and law enforcement. Constitution." The commerce power might As one might imagine, a number of be limited, he said, when it ran up against, say states, local governments, and state and lo­ the "right to trial by jury contained in the Sixth cal governing associations, among them the Amendment," or "the Due Process Clause of National Governors Association and the Na­ the Fifth Amendment."g NA TlONAL LEAGUE OF CITIES 307

Two themes emerge, then, in the ma­ ulating individual businesses neces­ jority opinion: subject to the dual sovereignty is of the government of the Nation and of the State in which they reside. It there are Iimits to commerce power is quite another to uphold a similar contained in the Constitution. And the consti­ exercise of congressional tutional that might limit the com­ directed, not to private citizens, but merce power vis-a-vis the states? Consider to the States as States. We have re­ the Tenth Amendment. "This Court has never V5'HL',,,, that there are at­ doubted that there are limits upon the power of 'HUn,llH'I'C to every state gov­ to override state sovereignty, even ernment which may not be impaired when its otherwise plenary pow- by Congress, not because vvut:.,,,,,,, commerce," wrote the may lack an affirmative grant of majority.9 to precedent established islative authority to reach the mat­ only the previous year v. United States, 10 ter, but because the Constitution pro­ Justiee found that "the Court recog­ hibits it from the authority nized that an express declaration of this limi­ in that manner. tation is found in the Tenth Amendment." to a case from 191 I, he found as "The Amendment de- of essential state powers the abil­ dares the constitutional policy that ity to decide the location of the state may not exercise power in tol and to determine how to appropriate pub­ a fashion that the States' in- lic funds. And for Justice and the or their ability to function ef­ "[0 Jne undoubted attribute of state fectively in a federal "II was the state's power to decide Justice then built an how much it would pay its employees and the rooted in the text of the Constitution and hours would work. The Court built on Court precedent, "recognizing the es­ this point the costs and ad­ sential role of the States in our federal ministrative burdens the FLSA amendments of govenunent." would impose upon the states and their poten­ Both the States and the United States tial to disrupt the of services upon existed before the Constitution. The which citizens relied. through its ac­ through that instrument, es­ tions, "may su bstantially restructure tablished a more union ... But traditional ways in which the local govern­ in many articles of the Constitution their affairs.,,13 the necessary existence ofthe Justice Rehnquist asserted and within their proper that the action taken by Congress "directly dis- independent authority of the the States' freedom to structure is distinctly 12 operations in areas oftraditional functions" and was therefore beyond the au­ It did not matter, to Rehnquist, thority to Congress by the Commerce as Usery the Court had upheld ear- Clause. He then to the major- lief exercises of author­ position with to two earlier prece­ ity that have curtailed the of the dents. While the Court was indeed "",'rn.rn. states. Maryland v. Wirtz, an earlier on the ap­ It is one thing to the au­ plication of FLSA to certain state employers, thority ofCongress to enact laws reg­ it was not v. United States, 308 JOURNAL OF SUPREME COURT HISTORY

evidently having seen his troubles with this case Come home to roost. But before we consider how National of Cities was let us tum to Justice Brennan's dissent. He did not mince words: "My Brethren thus have today man­ ufactured an abstraction without substance, founded neither in the words of the Consti­ tution nor on precedent." For Justice Brennan, Just as the

tice Marshall in Gibbons v. But he then moved to the case r love to taunt my students Wickard v. Fi/­ not the ofCongress's commerce principle "'that effective restraints on ... ex­ ercise [of the commerce power] must proceed from political rather than from judicial pro­ A former welder and labor activist, W. J. Usery (pic­ tured) was President Ford's Secretary of Labor in cesses. '" For Justice Brennan, his Brethren 1976. were engaged in more thanjudicial ac­ tivism, and "our decisions over the last which upheld the application of the Economic century and a half," he asserted that "there is Stabilization Act to states because it was tem­ no restraint based on state sovereignty requir­ porary in nature and "'an emergency measure ing or enforcement any­ to counter severe inflation that threatened the where in the Constitution."16 national economy,,>l4 As for any reliance upon the Tenth In summary, at least for the majority of Amendment, Justice Brennan would have none the Court, states mattered. And of it. United States v Darby (1941) he 111 quoted: their sovereign capacity, even the ex­ "From the and for many ercise of otherwise plenary Commerce Clause years the amendment has been con­ powers, was limited by the constitutional prin­ strued as not depriving the national ciple of federalism as embodied in the Tenth government of authority to resort Amendment to the Constitution. to all means for the exercise of a mere paragraph in is reasons: He admitted that he was "not untrou­ end." bled by certain of the Court's opinion"; and he saw the Court em­ The understanding of the Tenth bracing a that would Amendment "must astound scholars of the look at each set of issues national " according to Brennan. 17 versus state power with that sense of"balance" Brennan found a hole in the state­ in mind. 15 In a few years, Justice Black­ embraced by the mun would write the Court's opinion in the immunity cited by the case that overturned National League relied upon established precedent citing the of the "balancing" ap­ the federal government's power to NATIONAL 309

not on Congress's commerce power. <".vvvJe,,,, the Commerce Clause into the the tng that '''the implied immunity of each of the States are in that sense decisions ofthe States dual ofour constitutional system themselves. ,,21 He that indeed, from taxation the other'" had been the fact that our national system is nized since Marshall's day,'" Brennan found dominated by "representatives of the people firm precedent the power to tax elected from the un­ from the commerce power in regard to issues to sovereign 18 '''Hence we motivated to totally the concerns of look to the activities in which the states have the States."22 As evidence of this, he pointed traditionally as marking the bound­ out that the perceived cost upon the ary of the restriction upon the federal states of the 1974 amendments to FLSA power. But there is no such limitation upon in comparison to the amount of revenue the the power to states received from the federal omlPrlnrr>pnt state can no more deny ifits exercise For Justice Brennan, this was the bottom line has been authorized than can an the fabric of federalism under the individual. ",19 Constitution. "Given this demonstrated abil­ Writing for the minority, Justice Brennan ity to obtain funds from the Federal Govern­ found old evils beneath the surface of ment for needed state services, there is little for the majority. It doubt that the States' influence in the was, he wrote, "a transparent cover for invali­ ical process is to safeguard their dating a judgment with which " Chastising his Justice disagree." More importantly, to Bren­ Brennan lamented the unwork­ nan's mind, the analysis harkened able essential-function test" and the "catas­ back to a line of cases that helped to pro­ trophic judicial body blow at Congress voke the Constitutional Crisis of the 1930s under the Commerce Clause" inflicted and President Franklin n Roosevelt's ill-fated plan. "It may have been the back for a moment, let us con­ eventual abandonment of that restric­ sider where things stood when the Court tive construction of the commerce power that handed down National Cities. It defeat for the plan and was an important decision for several reasons. the integrity of this instihltion."2o It asserted that there were indeed limits to But Justice Brennan offered his strongest Commerce Clause authority, not al­ rebuttal to the majority for what he saw as a together without precedent, but it also asserted "startling of our federal that one of those limits was state SOI/er'ell.!:n and the role they create therein for the federal It argued that the Tenth rarely judiciary." He to outline his view. the subject of much judicial was a of what federalism meant and how it was to to the importance of state operate under the Constitution. Justice Bren­ commerce nan and the minority argued that the interests authority, the Court said the obvious: It is of the states are woven into the national one to regulate the activities of pri­ ical process by the Constitution. vate engaged in commerce, and it is the working out of that process. Find- is quite else to limit the decisions that "the political branches of our Gov­ states and their po­ ernment are structured to the inter­ litical subdivisions. And so the Court ests of the as well as the Nation as a in to in its mind, federalism and the whole," he went on to assert that states an ever-encroaching national upon the extent intervention under legislature. 310 JOURNAL OF SUPREME COURT HISTORY

The minority seemed outraged, as did tiona! legislature: "In the compound republic many in the press and the professoriate. of America, the power surrendered by the peo­ Only Congress could detennine the reach of ple is first divided between two distinct gov­ its Commerce Clause authority. If Congress ernments, and then the portion allotted to each wanted to regulate the states in the manner is subdivided among distinct and separate de­ outlined here, so be it. After all, the states had partments. Hence a double security arises to had a hand in writing the FSLA amendments, the rights of the people. The different govern­ since Congress is composed of representatives ments will control each other, at the same time elected by the people in the states. Who are we, each will be controlled by itself." For Madison, the judiciary, to impose our notions of what at least in the Federalists, state sovereignty constitutes state sovereignty and the appro­ was a part of separation of powers, and feder­ priate exercise of the commerce power upon alism was supposed to help keep the national Congress and the Constitution? government in its place. These are the two schools ofthought that, Now the issue becomes, what brand of in my mind, are embraced in this case. But federalism? The one outlined in the major­ stepping back even further, when the Court ity opinion in National League of Cities, or said years ago, in so many words in a long line in the minority opinion in that case, which of cases, that commerce is anything Congress emerged as the majority opinion in Garcia? says it is---it really doesn't matter whether it Garcia was decided in 1985 by an again very is "among the several States" or completely divided Court. That Court overturned National within a state, whether the activity being regu­ League ofCities, with Justice Blackmun writ­ lated is actually commerce or any of a number ing for the majority, having grown weary, it of activities that might be considered to have seemed, of the struggle to achieve the sort of an effect upon commerce-and when it said "balance" regarding commerce between con­ that Congress can regulate commerce in any gressional and state power that he had sought way it chooses, then it, for good or for ill, to achieve and frustrated with the attempt to put in place those conditions that encourage determine some rules regarding just what it what James Madison observed in The Feder­ was that constitutes "essential governmental alist #48: "The legislature ... extending the functions." The two cases are mirror oppo­ sphere of its activity, and drawing all power sites. In the years between the two cases, Jus­ into its imperious vortex.,,24 When Madison tice Potter Stewart, who had joined the major­ wrote this, he was commenting on the state ity in National League ofCities, was replaced legislatures, which, at the time, were indeed by Justice Sandra Day O'Connor, who joined wrecking havoc. But his observation, he wrote the minority in Garcia_ elsewhere in those essays, extends to the very The facts in the case are straightforward. nature of the legislative function generally. In In 1979, the Wage ilnd Hour Division of the The Federalist #51, an essay devoted to the Department of Labor issued an opinion that concept of separation of powers, he made this the San Antonio Metropolitan Transit Au­ clear, and he pointed out the role states must thority (SAMTA) was not immune from the have in keeping the national government minimum-wage and overtime requirements of and its legislature-in place. "In republican FLSA under National League o[Cities, argu­ government, the legislative authority necessar­ ing that SAMTA was not a traditional govern­ ily predominates," observed Madison. 25 The mental function. remedy for this: a bicameral Congress and The Court had struggled for years to de­ an energetic executive with competent pow­ termine the prerequisites for state sovereign ers. But also essential were states able to chal­ immunity under National League of Cities. lenge the inevitable encroachments of the na­ In Hodel v. Virginia Surface Mining and NA OF CITIES 311

In National League of Cities v. Usery, the Court held that if Congress applied the FlSA to state and local gov­ ernment employees "in areas of traditional governmental functions," it would violate the Tenth Amendment. Pictured is the state house in South Dakota.

Reclamation Association, it came up with a pornography: "someone knows it when four-part test: The issue must regulate "States see it, but can't describe it." More as States"; the issue must address matters that tantiy, Blackmun any rule that looks are indisputably attributes ofstate sovereignty; to a "traditional" or state compliance must directly impair the function of government invites an states' to structure the operations oftra­ unelected federal to make decisions ditional governmental functions; and, the na­ about which state it favors and which ture ofthe relation ofstate and federal interests ones it dish kes." must not be such that the nature of the federal Any such rule leads to inconsistent interest state submission.26 results at the same time that it dis­ Garcia focused on the "traditional gov­ serves principles of democratic self­ ernmental functions" test. But the major­ governance, and it breeds inconsis- finding it difficult-if not impossible-to with which

" ..,N""'n " threw the con- The majority then went on to embrace an out as unworkable and overturned Na- understanding of federalism and the Tenth Cities. For the the Amendment that had been forth Jus­ what it is that constitutes tice Brennan writing for the in Na­ by referring tional League of Cities. The principal means was "chosen by the Framers to ensure the role of not unlike its the States in the federal system lies in the 312 JOURNAL OF SUPREME COURT HISTORY structure of the Federal Government itself." cited in support of the view that the Finding that the Constitution was created, in role ofthe States in the federal system large part, to protect the states from overreach­ may depend upon the grace ofelected ing by Congress, Justice Blackmun created a officials, rather than on the Constitu­ sort of "cost/benefit" calculus for determin­ tion as interpreted by this Court. ing the contours of contemporary federalism. In the minority's view, "[t]he States' role in Finding that "federal grants now account for our system of government is a matter of con­ about one-fifth of state and local government stitutional law, not of legislative grace." And, expenditures," hc asserted that "the structural troubling ... is the result of [the protections of the Constitution insulate the States ti'om tCderally imposed burdens." ficials . , . are the sole judges of the limits of The political process ensures that their own power.,,2'1 laws that unduly burden the States Justice Powell also rejected attempts to will not be promulgated. In the fac­ define federalism in terms ofdollars and cents tual setting of these cases the inter­ going to the states or political squabbles over nal safeguards ofthe political process policy choices. For the issue was far have performed as intended. more fundamental, reaching to the "balance of power between the states and the federal For Justice Blackmun and the majority, then, government, a balance to protect our "in National League 0/ Cities the Court tried fundamental liberties." Closing, he wrote: to repair what did not need repair."28 Justice Powell, chafing at the majority's The Court's action reflects a serious own contributions to inconsistency by over­ misunderstanding, if not an outright turning mUltiple precedents established since rejection, of the history of our coun­ National League o(Cities, warned that the real try and the intention of the Framers danger with the majority's opinion was "what of the Constitution .... Although the the Court has done to the Constitution itself." Court's opinion purports to recognize that the States rctain some sovereign Despite some genuflecting in the power, it does not identify even a Court's opinion to the concept of single aspect of state authority that federal ism, today's decision effec­ would remain when the Commerce tively reduces the Tenth Amend­ Clause is invoked to justify federal ment to meaningless rhetoric when regulation. 3o Congress acts pursuant to the Com­ merce Clause. So here we have it. Within a mere nine years, one understanding of the Commerce Clause Then, pouncing on the majority's apparent and federalism and state sovereignty and the concern with judicial intervention in the name Tenth Amendment was displaced by another. ofprotecting the states as states, Justice Powell What are we to make of this? And what might let fly. the future hold? It seems to me that the same I note that it does not seem to have questions I have posed to my students over occurred to the Court that it-an un­ the years-the questions I raised earlier this elected majority of five Justices­ evening-might provide some help. today rejects almost 200 years of the When the Court was asked the ques­ understanding of the constitutional tion years ago---what is commerce among the status of federalism. In doing so, several states?-it first said one thing and there is only a single passing refer­ then, over time, and not necessarily with great ence to the Tenth Amendment. Nor consistency, said other things. Gradually, how­ is so much as a dictum of any court ever, it has said that interstate commerce is NA TlONAL LEAGUE OF CITIES 313 whatever says it is and wherever the sovereignty of the states-perhaps be- says it is and is engaged in among some in attendance in whomever Congress says. This is surely at Philadelphia-and an that odds with the words as appear in the Con­ state mattered. There was great stitution. Not anything, not IS In­ debate over how to fashion a national gov­ terstate commerce. But it also might be ernment that could exercise pow­ that, in the modern world, it is hard to come up ers while at the same time not destroying the with examples and private, of the states. This was the issue that do not touch upon some aspect of inter­ that consumed most of the deliberations in the state commerce. I did buy my at a nurs­ summer of 1787. There were many compro­ ery, which purchased them from a mises in this effort. One was to to in another state. This helps to the the authority to com­ if not in a satisfying way, how the merce among the several States." Again, care­ words "commerce among the several states" fully chosen words. Commerce among states has come to have such an definition, beyond the ofany But what about state. most unbridled authority under those words? With the to the Constitution Well, it comes with the changing territory. The brought about the Era- Constitution makes it clear that has the Sixteenth Amendment establishing the na­ over interstate commerce. When in­ tional income tax and the Seventeenth Amend­ terstate commerce becomes as broadly defined ment the direct election of as it has then power be­ individuals to the Senate and comes defined as well. What once tion of Senators by state ',-,,",L>'UW was limited the language of the document which were of a growing democratic is now almost unlimited and therefore indeed sentiment among the the constitutional empowering. began to shift. Now there is no differ­ And what about the other of the "bal­ ence between the dynamic ance" so Justice Blackmun: federal­ tion and deliberation in the House and in the ism, the Tenth Amendment, state Senate. Both are accountable to the di­ Here the I asked my students seems rectly, though under different terms of relevant as well. states? When the Con­ service and modes of The stitution was written, federalism and the inter­ conceived as an institution to repre­ ests of the states as states were, indeed, woven sent the interests of the states as states, now The Senate, as Madison observed 1'!"r,rp<,pntQ the in a Senator's state and over time, the of the nation. With within the states and to along with the revenue-raising advan­ The electoral the national government possesses with the confirmation process and ratification pro­ an income tax, the very idea of the indepen­ cess within the Senate, the process of amend­ dent and authority and of ing the and the Tenth Amend­ comes into ment: All of these as originally changes in the Constitu­ into the Constitution reflect a concern with the coupled with the Court's changing under­ "balance" Blackmun and Madison her­ of what commerce among the states alded in Federalist #51: A compound republic means-an understanding driven by a per­ in which governments check one another and ceived need to keep the Constitution relevant are checked from within as well. to the times and to meet national At the time the Constitution was writ­ economic altered, ten, there was a universal recognition of what federalism and the authority of 314 JOURNAL OF SUPREME COURT HISTORY the states might mean under our Constitution, But as for me, I know I am not engaged in In other words, what was once assumed-state interstate commerce when I grow and eat my sovereignty-has gradually been reduced to a salad, And I know where I live and why. difficult ongoing policy and political debate over what the national government can force upon states and whether or not the states pos­ ENDNOTES sess any independent authority to counter such 1317 US, III (1942), actions, 2426 US, 833 (1976), Any attempt to counter national action 3392 US, 183 (1968), 4469 U,S, 528 (1985), with an argument based on state sovereignty 5321 US, 100, 115 (l941), requires asking the question: "What is it that 629 US,C, 203(s)(5) (1970 ed,) (emphasis added), constitutes state sovereignty?" Hence, the "es­ 79 Wheat. 1 (1824), sential governmental functions" argument that 8National League 0/ Cities v, UselY, 426 US, 833, 841 comes with National League of Cities and is (1976), disposed of with Garcia, The "essential gov­ 9Nationai League o.fCilies, 426 US, at 842, 1°421 US, 542 (1975), ernmental function" test was the Court's way II National League ofCities, 426 US. at 842--43 (quoting oftrying to give meaning to a concept that was, Fly, 421 US, at 547 n,7), once upon a time, taken for granted as a politi­ 12Nationai Leagueo/Cities, 426 US. at 844 (quoting Lane cal principle: state sovereignty and federalism, County v, Oregon, 7 WaIL 71,76 (1869», State sovereignty is difficult to define in i3Natiollal League o/Cities, 426 US, at 845, 849, 14Nalional League o.fCities, 426 US, at 852-53 (quoting terms of some specific authority or power to Fly, 421 US. at 548), counter the enumerated powers of Congress, 15Nalional League o/Cities, 426 US, at 856 (Blackrnun, particularly as those powers have evolved over 1., concurring). time. Add to this the way states have been 16National League 0/ Cities, 426 US. at 860, 876, 858 willing to submit to national regulation in ex­ (Brennan, J, dissenting) (quoting Wickard v. Filburn, 317 U.S. Ill, 120 (1942)). change for increased revenues, in part due to 17 National League o.fCities, 426 US, at 862-{i3 (Brennan, the advantage the national government has in 1., dissenting) (quoting US v. Darby, 312 US, 100, 124 raising those revenues, and suddenly my stu­ (1941)), dents seem pretty prescient. When I ask them ISNatiolJal League o/Cities, 426 US, at 864 (Brennan, J, "Why states?" they cite the need for subunits dissenting) (quoting New York v, US, 326 US. 572,587 ofgovernment to administer public policy and (1946) (Stone, C,J., concurring)). 19 National League o/Cities, 426 US, at 866 (Brennan, 1., affairs, And, with Garcia, they seem dead on, dissenting) (quoting US v. California, 297 US. 175, 185 In National League of Cities, the Court (1936) (emphasis added)), sought to revive, through judicial inter­ 20Natioliai League o/Cities, 426 US, at 867--68 (Brennan, pretation, an idea of federalism and state 1., dissenting). sovereignty and limited, enumerated national 21 National League o/Citi~s, 426 US, at 875-76 (Brennan, powers very much in harmony with the Con­ J, dissenting) (emphasis added). 22National League a/Cities, 426 US, at 877 (Brennan, J, stitution of 1787. But that Constitution no dissenting). longer exists, and the world in which con­ 23 National League 0/ Cities, 426 US, at 878, 880 (Bren­ temporary constitutional interpretation takes nan, 1., dissenting) (emphasis added), place is vastly different from that of 1787, One 24 The Federalist at 333 (Jacob E, Cooke, ed., 1961). doesn't speak of state sovereignty or limited 25 Federalist at 351. 26 452 US. 264, 287-88 (1981). enumerated powers very much anymore, sadly. 27 Garcia v, San Antonio Metro, Transit Auth., 469 US. Whether this will continue to be the case, 528, 547 (1985). given the ephemeral nature of constitutional 28 Garcia, 469 US, at 550, 552-53, 555-57, interpretation, is for the future to decide, Re­ 29 Garcia, 469 U.S, at 560-61,567 (Powell, 1., dissenting). cent years have witnessed some rumblings that JOGarcia, 469 US. at 577, 579 (Powell, 1., dissenting). 31 Federalist at 351. suggest this debate is not yet over. We shall see, The Judicial Bookshelf

GRIER STEPHENSON, JR.

A well-established fact of American is the unpredictability of vacancies on the U.S. Supreme Court. and Senators face voters every two and six years, A President serves for four years and may be reelected only once. do not sit for fixed terms and in effect life tenure. After his inauguration as the third president in January 2001, W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on 1, O'Connor announced her intention to leave the Bench. 1 By contrast, the T""''''_T{"\1 encountered his first Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on 1,2009, of his intention to retire from "regular active service as a Justice" when the Court recessed for the summer. 2 Souter had been named to the Court in Staff) placed him on the state supreme court 1990 by President H. W. Bush to fill in 1983. the vacancy created by the retirement of]ustice The selection of Souter seemed dictated William 1. Brennan, Jr. the nomination by several factors. First, the Senate's rejection was announced barely seventy-two hours af­ of President Ronald Reagan's nomination of ter news ofBrennan's became Judge Robert Bork to the Court in 1987 to and a mere three months after Souter's fill the seat vacated the retirement of Jus­ ment to the First Circuit Court of Appeals, tice Lewis F. Powell, was still a fresh where he had been confirmed unanimously by for most Republicans, a memory. The the Senate. The first Justice to be named from Bork had been true political trauma New since Levi Woodbury in 1845 as well as drama. While hardly the first con­ and the first bachelor since Frank Murphy in tentious nomination, 1940, Souter was a close friend and of the most tumultuous. m""hi,r" Senator Warren ate spanned a twelve Rudman and had been state general days, and Bork testified and was questioned on and a before Governor John Sununu five ofthose days. The ofthe (later President H. W. Bush's Chief of and related documents consumed five 316 JOURNAL OF SUPREME COURT HISTORY

which in turn fill 8.5 linear inches of M. shelf space.4 For very different reasons, there- President Bush's advisers and many Sen­ was fatal to his ators wanted assurance that any nominee to same succeed Justice Brennan pass the "not Bork" to be "Souter's most test. Bork's trail" of ar­ to Souter's record as New ticles had orovided ammunition for, and had claimed that his opponents. Now pru­ no other dence seemed to dictate selection of someone to civil to some who had and written someone issues, he remained silent on the abortion life had been decidedly low­ even as he demonstrated empathy for women Bush faced a Senate firmly in facing an unwanted pregnancy. to Democratic hands. Third, the President's pre­ his biographer, a break in the public approval ratings had fallen proceedings, Souter and a friend retreated to and with them his congressional the nearby office of Republican Alan influence. In the President was in no po­ son, Wyoming's folksy junior senator, who sition to force a controversial nominee on the was also a member of the Commit­ Senate. In contrast to Bark's Souter's tee. A boyhood fan of Saturday matinee west­ yielded few clues to his thinking on the most erns, Simpson compared Souter's encounter politically divisive federal constitutional is­ with Kennedy to movie hero fi­ sues. For Alabama's Senator Howell Heflin, he nal gun fights with the outlaws. "It was "the stealth candidate." On national teJevi- ended up," said Simpson, "with the bad guy Justice Marshall harrumphed, biting the dust. And some old codger would "Never heard ofhim."s The contrast with what say, 'You don't mess with had abundantly been known about Bork was that's what I thought when you finished with of Ted Kennedy: You don't mess with old that Bren- Souter demonstrated Granite State in deflecting cross-examinations con- Eisen­ other Democrats as well. had had but his adroitness and reticence made it difficult for opponents to villainize him and so to mobi­ supreme court. lize the kind of interest-group and broad pub­ Bush disavowed the use of lic opposition that had worked so effective test" on abortion or on any other mat­ in scuttling Bork's nomination. On October ter. Was Bush heeding Abraham Lincoln's ad­ 2, the Senate voted overwhelmingly (90-9) to vice? Presented with the Annrwh, to name confirm Souter as the 105th Justice, barely two Roger Taney's successor as Chief Justice in weeks after his 51 st birthday. J 864, Lincoln "We cannot ask a man Intensive interest in President Barack what he wi II do, and ifwe should, and he should Obama's choice of a successorI I to Justice answer us, we should him for it There­ Souter is a reminder of the widespread aware­ fore, we must take a man whose are ness of the central role that the Supreme Court known."6 continues to play in the life of the Republic, Democrats on the Senate Com­ an interest keenly mirrored in several recent mittee unabashedly asked the Presi­ dent Bush presumably had not, it ap­ That much seems clear from even a cur­ parent that abortion was the issue sory look at A Good Quarrel. 12 Edited by at the hearings. In particular, Senator Edward scientists Timothy R. Johnson and THE JUDICIAL BOOKSHELF 317

To further illuminate the eleven oral arguments presented in A Good Quarrel, the editors have embedded interactive links within each essay that cleverly and imaginatively connect each author's analysis to the oral arguments them­ selves.

Jerry Goldman of the selves to live thus usually nesota and Northwestern clear of hypothetical or contrived litigation. tively, their book Similarly, federal judges are barred in any of­ inative window into oral argument, a ficial capacity from serving as advisers to leg­ in the Court's decisionmaking procedures. islators or executives and from issuing the ad- As succinct as it is descrip­ opinions that are allowed in some state tive, the title conveniently reflects a double courtS. 14 Second, many that reach reality about the judicial process that unfolds the Court are indeed quarrels- each Term at the not in a normative or ethical sense, but are indeed "good" in the sense that a because of Learned Hand once counseled. "Con­ what is at stake and/or because of the skill flict is we reach accommodations as displayed by the participants, is or wisdom may teach us that it does not pay to In turn, a may attract our fight."" Cases are thus the raw material of attention because examination of the dispute the judicial controversies with leads to understanding of both the is­ which judges deal and from which sue and the process employed to resolve it. the ofthe law. Hence the What Johnson and Goldman have com­ "case or controversy" that inter­ piled is a collection of eleven accounts of ar­ pretation of Article Three of the Constitution before the Court. As Richard has allowed the federal courts since the found- of the years of the to confine them- 3]8 JOURNAL OF SUPR E COURT HISTORY

before the Supreme Court may well ace the reader can listen to audio be the most fascinating, almost as- files in one of two ways. Preferably, it seems, of our nation's lawmaking process. Pri­ at the Web site established by the vate citizens cannot join the president and the """"'r'~,t" of Michigan Press for the book, cabinet in the White House when they debate 22 There, the cases featured policy matters. Private citizens cannot in the book are listed, and, as explained below, appear in the well of Congress, admonish- the reader merelv clicks on the appropriate one lawmakers to pass needed legislation. her or his computer. Alter­ But ironically, the most private of our three audio files may be down­ branches of government offers the public player. However, if this attorneys representi clients center ,,15 Each of these or ease ofuse unless one wants to hear an eleven accounts is authored by a print or tele­ Then, within each es­ who has built a na­ <:,.,,,,,,kPT symbol appearing in the margin at various alerts the reader to listen miliar to those who follow the Court's to a from the audio file that illustrates a work the news media: Fred Graham, point that the author has made. These clips are tnr'""p'rl" ofthe New York Times and CBS News plainly marked on the Web site and are listed and more of Court TV, Lyle Dennis­ for each case in the order that they appear in the ton, formerly of the Baltimore Sun and now essay. each clip is referenced with a frequent contributor to scotusblog.com, Tim a page number and a brief description. The re­ O'Brien of ABC News. and Nina Totenberg of sult, at least when directly from the National Public to name but four. The Web site. is a seamless integration of roster is a reminder of the critical role of the into the orinted word. At media in the essence of the Court's decisions to H This allows access to lighted in a recent issue 16 Jour­ ofa case from start to fin­ nalists are ofwhat the late Gabriel Almond on and Opinion long ago called "the communications ,,17 Announcement" allows one to read the Court's individuals who influence the ofvar­ opinion in the and to hear (when ious opinion leaders who in turn help to mold available) the announcement of that opinion in the thinking ofthe public in a two-step open court. flow. Cases spotlighted in A Good Quarrel This "The Rhetori­ include some of the most cal Battle over Roe" by the chapter cided in recent years: Time Inc. v. on constructed around the oral on April libel, Randall v. Sorrell 19 on camoaign fi­ 22, 1992, in Planned Parenthood o/Southeast­ nance, Grutter v. on affirmative ern Pennsylvania v, With the decision , and Bush v. on the keys to the down some two months later on June White House. 29 (practically on the eve of the Democratic The volume is much more than a col­ and Republican lJn;::~lU,<::1H lection of articles about mterestmg cases as ventions), this case crafted by talented writers, however. What sets important abortion-rights decision of the past the book apart are the interactive links em­ two decades and tested the courtroom skills bedded within each essay that cleverlv and of three seasoned advocates: Kathryn Kol­ imaginatively connect each author's bert, an attorney from the American Civil Lib­ to the oral arguments themselves. As the Pref- erties Union in Philadelphia; THE JUDICIAL BOOKSH 319

General Ernest Jr.; and, rep­ they were "reasonable" and not unduly burden­ the interest of the United States, So­ some. Little wonder, that the retirements licitor General Kenneth W. Starr. of Justice William 1. in 1990 and Under review in Casey was a Justice Marshall in 1991 (because vania law that imposed several conditions their departures reduced the number of Roe's for obtaining an abortion, including informed stalwart defenders on the Bench to meant consent, a twenty-four-hour waiting that the views of replacement Justices Souter consent for minors (coupled with and Clarence Thomas might well be decisive. a judicial bypass), spousal and both and pro-choice requirements for medical per­ camps alike awaited the outcome of the Penn­ sonneL A of the United States Court of case. n.UILJC"", for the Third which included As Denniston explains, in the wake of Court Justice Samuel A. Al­ Webster, opponents of the statute ito, Jr., had upheld the statute, save for the only a single question for the High COU\1'S con­ spousal-notification requirement. 24 Certainly sideration: "Has the Court overruled bearing on the Supreme Court's decision in Roe v. Wade . .., holding that a woman's right from 1989: Webster v. Re- to choose abortion is a fundamental right pro­ tected by the United States a Missouri statute (I) declared in its pream­ Denniston ble that life begins at (2) prohib­ January 21, certiorari sent a ited abortions in public facilities clear that the Justices were not pre­ or by public (3) prohibited pub­ pared "to assist Kolbert in her sweeping le­ lic funding of abortion counseling, and (4) re­ gal/political challenge.,,3o Rather, the order, to an abortion in a which to Denniston had pregnancy of twenty weeks or more. Recently been drafted by Justice Souter, with Justice Anthony and four Justice John Paul expressly limited other Justices voted to uphold the act. Yet there review to whether the Third Circuit had erred were not five votes to overturn Roe v, in the constitutionality of most of Writing Justice Antonin the statute and in striking down the spousal­ Scalia would have made that move. Chief notification rule. "To lawyers regu­ Justice William Rehnquist and Justice Byron before the the phrase limited to was White, both dissenters in have been close to a firm mandate."31 But because the expected to agree. Justice Solicitor General's brief reversal of Roe was not prepared to go that far, (as the government had done on five other oc­ stead to accept the statute as not casions within a decade), Kolbert's merits brief an undue burden on a woman's abortion "devoted the first pages of a decision, ,,27 page section to the plea to reaf­ did not survive un­ firm Roe and the to choose as 'a funda­ a statute mental right protected' by the Constitution. that as late as I In his of the oral Dennis­ struck down, the Court went out of its way to ton designates (using the boldfaced speaker aside Roe's trimester analysis, which had symbol) no fewer than fifteen be­ rested on a balancing of the woman's deci­ tween counsel and the Justices. Thus, by click- sion to the state's interest in her health, on the links at the book's and the state's interest in life. Thus, Web the reader/user can hear the argument after Webster, limits on abortion would now come to life with respect to those designated nrn,h

The decision surprised both sides in the man rightsL]' .. a right which is basic to the abortion controversy. It was neither the com­ perpetuation of the race. "39 plete victory pro-life groups had sought nor Thanks to the thorough scholarly labors the broad defeat pro-choice forces had feared. ofVictoria F. Nourse, who holds joint appoint­ While the majority upheld all elements of ments at the law schools of the University of the statute except the spousal-notification pro­ Wisconsin and Emory University, Skinner is vision, the fifth vote to overturn Roe again now the subject of a captivating study in le­ failed to materialize. Confessing "reserva­ gal and cultural history: In Reckless Hands.40 tions" about the correctness of Roe as it was Indeed, the title Nourse chose draws from the decided in 1973, Justices Souter, Kennedy, Court's opinion in that case, which, in strik­ and O'Connor in a joint opinion nonethe­ ing down Oklahoma's compulsory sterilization less reaffirmed what they teoned "the cen­ law, warned that "in evil or reckless hands" tral holding"33 of Roe, that abortion involved such power could "cause races or types which a constitutionally protected liberty that states are inimical to the dominant group to wither were forbidden to burden unduly. Coupled and disappear. There is no redemption for the with Roe's avowed champions (Justices Harry individual whom the law touches. Any ex­ Blackmun and Stevens), the alignment left periment which the State conducts is to his Roe's avowed adversaries (the Chief Justice irreparable injury. He is forever deprived of and Justices White, Scalia, and Thomas) in the minority. As Denniston concludes his treat­ ment of the case, "Only the justices them­ selves, especially the trio that controlled the outcome, could say whether Kolbert's argu­ ment had set the agenda for the Court's delib­ eration. A solid, controlled oral argument can do that, even if it is not what the Court expects or wants."34 Pennsylvania's abortion statute would cer­ tainly not have occasioned that particular "good quarrel" had the Supreme Court not, much earlier, expressly established a constitu­ tional right to privacy. While that moment of creation in the context ofreproductive freedom is usually ascribed to Griswold v. Connecti­ cut,35 intimations of a privacy right had been floating in the legal air for some time. Justice Louis D. Brandeis, who as a young Boston at­ torney had co-authored an article on privacy,36 later as a Justice referred in a dissent to "the right to be let alone" as "the most compre­ hensive of rights and the right most valued by civilized men.,,]7 And it was Justice William O. Douglas, author of the Court's opinion in Griswold, who had declared in Skinner v. Ok­ The state of Virginia's forced sterilization of Carrie 38 Buck, a "feeble-minded" woman (pictured), is the lahoma that "the right to have offspring ... background for Victoria F. Nourse's new book, In touches a sensitive and important area of hu­ Reckless Hands. THE JUDICIAL BOOKSHELF 321

a basic liberty, ,,4 I Ironically, as those words activism. At least for a while, for leg­ were penned in 1942, Nazis in islative choices became the new virtue, In a attempting to eradicate Jewish democracy, were on sounder ory of their natural inferiority. ironic footing when they deferred to the elected rep­ alongside that dreadful resentatives of the people. The second major constitutional this period humanity by sterilizing persons with certain was, in reality, an to the first. As physical, or moral defects supposed articulated by Justice Harlan Stone in Foot­ become well note Four of United States v, Carolene Prod- in the United States. The author's felt need to IlV';"ll~dILC; the in certain circumstances saga that becomes In Reckless Hands illus­ in legislative di­ trates at least of Felix Frankfurter's ob­ rectives, as when a statute (I) violated an ex­ servation that Nourse uses as an epigraph: plicit provision of the Constitution, (2) un­ "Lawyers, with rare have failed to dercut the democratic process itself, or (3) lay bare that the law of the Court worked a hardship on groups who were unable is enmeshed in the history; histori­ to defend themselves in the rough and tum­ ans no less have seemed to miss the fact that ble of politics, Skinner reached the country's history is enmeshed in the law Court after both trends were un­ ofthe Court. Nourse's efforts also the first pointed toward one kind validate the assessment of General of result in the case, and the second towards George W. Wickersham more than a century another. proportion of causes sub­ The fact was that the ideas of pn,~pr,,,'c every decision becomes had become very in America. In­ a page deed, 1928 some 375 colleges and uni­ In addition to down during the versities in the country taught course in heyday ofNazism in much of Europe, Sf...inner with some 20,000 students enrolled. lay at the convergence of two important con­ of biology textbooks written stitutional in the United States. l-~~"lV'J.l use endorsed eugenics, It "en­ The first was the Constitutional Revolution and diverse following, from Ju­ of 1937, which followed President Franklin nior and school principals and Roosevelt's audacious attempt to change the the Kiwanis to prohibitionists and birth con­ course ofconstitutional doctrine by appointing trol advocates as Margaret Sanger] and a sufficient number While most crimi­ Justices to the Court to sustain the knew that crime itseJfcould not be in­ President's agenda, "believed that habitual criminal- much ofwhich had foundered on the shoals of reflected mental deficiencies which could unconstitutionality, While Roosevelt's Court­ be inherited, ,,46 by 1933 tUfI'ni-"_,,pU?>n packing plan was rebuffed by Congress, the fa­ of the states had sterilization laws mous "switch in time" by one or two Justices, of some kind, so that during the 1930s there combined with several propitiously timed re­ were about 2,000 compulsory sterilizations in that an entirely new ap­ the nation annually.47 An "idea of nature" was proach to constitutional adjudication would transformed "into an idea of political order,,,48 soon become the order of the day. In The practice of eugenics reflected with to most social and economic mainstream popularity but the restraint supplanted judicial Court, in an 322 JOURNAL OF SUPREME COURT HISTORY

Justice Oliver Wendell Holmes, Jr., had hostages, and baying bloodhounds, traveled upheld, against a challenge on FODlieenth the nation."52 But when Moore himself, now Amendment due-process grounds, a salp­ fully incentivized, escaped in June, the at­ ingectomy ordered by the Commonwealth of torney general selected a substitute named Virginia to be performed on Carrie Buck, "a Jack Skinner. Skinner qualified because he feeble-minded white woman who was com­ had served eleven months in a reformatory mitted to the State Colony [for Epileptics and for stealing chickens, another term for armed Feeble Minded] .... She is the daughter of a robbery,53 and a third incarceration after he feeble- minded mother in the same institu­ held up a gas station and took seventeen tion, and the mother of an illegitimate feeble­ dollars. minded child.... Three generations of imbe­ Following Skinner's trial in October and ciles are enough,"49 wrote the legal luminary. the jury's verdict that he be sterilized, the gov­ Oklahoma's third and last sterilization ernment had a relatively easy argument to measure was signed into law in 1935. Billed make when an appeal went to the Supreme largely as a step to combat crime-"A lot Court ofOklahoma. "[A]lI the state ... needed of criminals will be kept out, or run out of to tell the court was to defer to the Oklahoma Oklahoma,"so announced an assistant to the legislature."s4 And of course, there was Buck state's attorney general-the Habitual Crim­ v. Bell, in which the U.S. Supreme CODli had inal Sterilization Act applied to a habitual found a similar statute well within a state's criminal, defined as one who, having been police power. It was, therefore, not surprising convicted two or more times for crimes that the state's high court ruled against Skilmer. "amounting to felonies involving moral turpi­ What was surprising was that the bench was tude" either in an Oklahoma court or in a split. A dissent joined by four justices took is­ court of any other state, was again convicted sue with the fairness of the proceedings but, of such a felony in Oklahoma and was sen­ without any citation, also asserted that the right tenced to a penal institution within the state. to beget children was "one of the highest nat­ The state attorney general would then institute ural, inherent rights.,,55 proceedings against the qualifying individual, Skinner was fortunate in that two talented who would have a jury trial at which the dis­ Oklahoma attorneys, Guy Andrews and H.I. cretion of the jury would be limited to finding Ashton, entered his case at practical [y the that the defendant met the statutory definition last moment to guide an appeal to the U.S. of a "habitual criminal" and that sterilization Supreme Court. Andrews even had experience could be performed without detriment to the at the High CODli, having been losing counsel person's general health. However, the legisla­ in the New State Ice case56 that today is re­ ture inserted one important additional qual­ membered for Justice Brandeis' reference in ification: "[O]ffenses arising out of the vio­ dissent to the states .as laboratories of pub­ lation of the prohibitory laws, revenue acts, lic policy. 57 Andrews and Ashton based their embezzlement, or political offenses, shall not argument on equal protection and due pro­ come or be considered within the terms of this cess, stressing the irrationalities of the law. Act."S! The worst criminals, such as Al Capone and After the attorney general began the first Giuseppe Zangara (who assassinated Chicago proceedings in May 1936 under the new law mayor Anton Cermak and attempted to assas­ against a five-time offender named Hubert sinate President Franklin Roosevelt), would Moore, chaos and a jail break (minus Moore) not be sterilized until they had been con­ erupted at the state's McAlester Prison. "News victed three times. "Why did inheritance of of the escape, with all its alluring detail criminal tendencies follow from three convic­ of bodies thrown out of windows, cowboy tions but not two?" they asked. 58 Then there THE JUDICIAL BOOKSHELF 323 was the law's exemption for certain kinds of The Stone Court only touched white-collar offenses. Was the at­ sexual intimacy in Skinner. The later Burger tempting to establish an and Rehnquist Courts confronted it squarely, of the burdens first in Bowers v. and then in Lawrence v. Texas. 66 This in Conference the subject of The by David the equality A. 1. Richards of the New York University when the Justices considered Skinner's case. School of Law. 68 His book is one of the latest Initially, Chief Justice author of Foot­ volumes to appear in the Landmark Law Cases note Four from the Carotene Products case but & American Series. Published by the also a strong of judicial University Press of Kansas under the general was not inclined to from Buck v. Bell. editorship of Peter Charles Hoffer and N.E.H. As Nourse "a narrow equality ar­ Hull, the series ofcase studies now claims sev­ gument focused on the language of eral dozen almost all ofthem treating de­ the statute might allow the Chief Justice to cisions by the U.S. Court. Additional leave Buck alone but strike down Oklahoma's entries are presumably in preparation.69 eugenic effort.,,6o That was the rationale that In a decision of the William O. after Stone as­ Court for the Eleventh Circuit, five signed the Justices the of Geor­ Aside from a readable ofSkin­ gia's statute, which made criminal cer­ ner and its context, a contribution ofIn tain combinations of private parts. The law Reckless Hands lies in the way the to heterosexual as well as homosexual viewed from reproductive Justice White's opin­ 6 v''''''''V11. ! While Skinner ion of the deliberately, seemed f1p'1rn!pti of a basic liberty to the law as if it made only the lat­ mention these mat­ ter criminal. The divided Bench revealed that ters not to reexamine the scope of the police no consensus existed concerning what con­ power of the States. We advert to them merely stitutionally privacy encompassed. m of our view that strict scrutiny Many observers were surprised that, in the of the classification which a State makes in a wake of Griswold and the abortion cases, no sterilization law is lest unwittingly or majority existed for an extension in a situa­ otherwise invidious discriminations are made tion consensual behavior between groups or of individuals in vi­ adults. The Court then revisited sexual inti­ olation of the constitutional guaranty of just macy in which not only invalidated and laws. The of a Texas statute that expressly criminalized tion of the laws is a pledge of the V1\.""',"U'" same-sex sodomy but straightforwardly over­ laws. "'62 Skinner's innovation, writes turned Hardwick and the intellec­ "was not the invocation of but tual of Justice White's in that the idea that married to inequality could case. 'strict scrutiny'-a term used for the Like Nourse's study first time in Skinner and one which would become central to the future of constitutional development and analysis. nVvV1'UJ near law."63 One might add that Skinner's the outset, the author asks "how and why of strict scrutiny also connects with the sub­ the Supreme Court inferred the constitutional stantive equal protection that in the right to privacy at all,,,70 as well as why the late Warren Court in the context of cases such right was applied in some situations and not as v. Thompson. 64 others. ]n addition, Richards wonders about 324 JOURNAL OF COU RT H I STORY how and certain normative ideas regard- a mobile trailer (yes, I think), a prIvate room gay rights developed and why "some of available in a house of prostitution or them are now as the bases of ar­ even in a public the of a toilet guments about constitutional principle." So in a public restroom? ... And if sodomy is to part of the author's investigation is be decriminalized on constitutional ,,7 J In Dlaces. it is what about bigamy and Between this exchange and the vote in confer­ As some readers of this journal are aware, ence, Richards reports, there were a number of one ofthe more aspects ofthe Hard­ memos back and as Powel I sought to find wick decision was Justice Powell's of an acceptable way of invalidating mind late in the decisionmaking process, con- anti sodomy law. Eventually, however, Powell what had been a 5-4 for abandoned the approach privacy and Michael Hardwick into a 5-4 settled on an Eighth Amendment reflect- attorney Robinson v. California, that "ifHardwick important contribution of The Sodomy Cases was powerless to his sexual orientation, is the detail Richards' examination presents it was wrong to him for acting on it, about this turn of events. At the conference on April 2, "hav­ For astute observers and for Professor ing found a way to avoid his worries about Laurence Tribe of the Harvard Law SchooJ~ a principle' for the of consti­ with Professor Kathleen Sullivan, then tutional Powell voted to affirm," as also at Harvard, coauthored the brief for Hard­ did four other Justices. The clerk who had sent the initial memorandum continued to argue for "crucial on the Court was Justice Then on the day after conferen Powell, and it was to him that Tribe largely "Chief Justice Burger personally delivered a directed what he had to say. The was to letter Powell to the crucial fifth convince this supporter of Roe v. Wade that the vote for reversal."78 It was in that letter that extension protected the Chief Justice maintained that the case pre­ to gay/lesbian sex acts in the home could be sented "for me the most far-reaching issue" of both limited and principled while "not under­ his judicial career." mining the legitimacy of other criminal laws absence of a limiting principle "would forbid . forms of consensual adult sex."73 states from adopting any sort of policy that However, Richards that Tribe could would exclude homosexuals from the class­ not have known that shortly before rooms or boys' clubs, .. one of Powell's clerks submitted a According to Richards, Powell wrote "Incred­ Bench memorandum to the Justice ible statement" next to the Chief Justice's as­ against that extension of the privacy sessment of the case, and across the top wrote because "no limiting principle comes "There is both sense and nonsense in this to mind," and because it open the way letter mostly the latter."so But other notes to unchecked sexual behavior74 showed that Powell was reconsidering his vote. Powell then responded in a memoran­ Powell soon wrote the other Justices ofhiS con­ dum, probably written two days before oral clusion to switch sides. "I did not agree that that indicated great discomfort with there is a substantive due process right to en­ Tribe's position, "A oroblem would be to iden­ gage in conduct that for centuries has been some limiting recognized as and not in the best in­ to agree with the and Professor terest of oreserving humanity." Because the Tribe. A number of examples come to mind: by the oarties rested would the term 'home' embrace a hotel room, on due process, he E JUDICIAL BOOKSH 325 several of you noted at Conference-my Marbury, devotes considcrable space to this Amendment view was not addressed as does every study of the Mar­ by the court below or by the ,,81 shall Court (1801-1835) and every study of After his retirement, Powell admitted that American constitutional In ad- his changed vote had been a mistake. "I do a decade ago, was think it was inconsistent in a general way with in the comprehensive Landmark " he remarked to a reporter. "When I had Law Cases & American Society Series that the opportunity to reread the opinions a few Richards' book,88 The truth is months I thought that the dissent had the thanks to Marbury, to write about the Court­ better of the arguments. "There can be no at least the court in the first third of the nine- more fundamental criticism of any Richards adds, "and Powell came conscien­ to accept this criticism of himself." another account As events progressed, it to be another ask what more can clerk to Justice Powell (from the 1980s) be said that is new. Therein lies the opportu­ who would successfully argue Lawrence v. nity: to fashion a treatment of a familiar case Texas,84 which not only interred Hardwick but so that it is serviceable to the aware supported "how reasonable [Roe] remains for and the judicial novice alike. constitutional as a free-standing con­ If any account of Supreme Court history stitutional right" in the context of extending it can be classified as suitable in length,

"to a traditionally U,","Ph>vU and content for reading at surfside, Roe and Lawrence are each an example or this is the book. Sloan and McKean of judicial the authority of a court to succeed because their work avoids the strong invalidate a enactment that, in the "temptation" Charles Warren observed for le­ conflicts with the Constitution. writers "to the present of a to acts of that power case back to the date of its is nearly uniformly agreed to have originated to obtain an erroneous view of its contempo­ with v. Madison,86 decided by the rary A decision Supreme Court over two centuries ago with the passage of time, and what might be called the adolescence ofAmer­ portion of the which was of the ica's history as a nation. That case is the fo­ est import at the time it was rendered becomes cus ofThe Great Decision Cliff Sloan and subordinate to other consideration. This is par- David McKean.87 The first author is a part­ true as to. . . v. Madison."89 ner at the law firm of Skadden, With almost the excitement ofa novel, the Meagher & Flom in Washington, authors achieve a proper balance between Mar­ co-author was chief of stail to United States bury's and the vivid detail Senator John and in 2009 became staff of what they call "a complex, sometimes director to the Senate's Committee on Foreign saga.,,90 appropriate for a Relations. book published barely four months after a pres­ author work on Mar- idential The Great Decision relates bury faces both challenge and a series of events "arising in the midst of bit­ There is probably no case decided by the ter enmity between a new president, Thomas Court in one way or Jefferson, and a new chief justice, Jefferson's has been the subject of more scholarly at­ cousin John from the caul­ tention and commentary. Aside from dozens dron of political warfare between the defeated of every biography of Chief Justice Federalists and Jeilerson's triumphant Repub­ who for the Court in licans; in a triple bank shot by 326 JOURNAL OF SUPREME HISTORY

The Great Decision traces the history of Marbury v. Madison with the excitement of a novel.

Marshall that enhanced the Court's power and for a writ of mandamus to prestige, avoided a futile confrontation be­ James Madison, the new tween a weak Court and a The premise of the writ and blasted Jefferson for lawless action with­ was that the executive branch was answerable out giving him fordefiance."9! As to the judicial process in the course of ex- the reader an bonus is the window the volume offers into appointments. In this ditions, political and social Republican cabinet official to a in the young nation's new Federalist Bench. By earlv I when the case The plot began to unfold on was argued, the atmosphere was such that Mar­ 180 I, when Congress, still in the hands of the shall and his colleagues must have concluded Federalists, passed legislation that Madison, with the President's tices of the peace for the would almost certainly any writ they John Adams appointed rr"·",,,_.''''''-_' might issue. The administration, after alL had William Marbury-on March 2, and the Sen­ effectively boycot1ed the in ate confirmed them on March 3, only a counsel spoke for the would-be before Jefferson took office. also none spoke for Madison. What would the of State, noticed that a few com­ Court do? As events the Justices' missions of office had not been delivered but resolution of the case seemed almost "'thought little of it."92 Marbury and four oth­ a decision that avoided a confrontation with ers then filed suit the Suoreme Court the executive branch, addressed the Court's THE JUDICIAL BOOKSHELF 327 role, and handed Marbury nothing more than vested or not, is, in its nature, judicial, and a moral victory. must be tried by the authority."94 The Court achieved the third objective The essence of Marshall's opinion was by the Jefferson administration for that the Court was an independent entity of the commissions to the would-be government. Rather than sit as the agent of The Court achieved the one political force another, the Court n01Ne\ler. that it was the agent ofthe Constitution. An indepen­ was to order delivery of the com­ dent judiciary, moreover, was not the same as missions because Section 13 of the Judiciary an administration-friendly or a party-friendly Act of I which authorized the Court to is­ judiciary. Individuals violations of sue writs of mandamus as part of its rights might pursue judicial remedies. In short, violated Article III of the Consti­ under Marshall's the Constitution was tution. The was since Article a juridical particularly as III out the Court's originaljurisdiction, paramount could no more add to that tation and ~IJI,"Hr and the 'whole' of Marshall's argu­ able and nondiscretionary actions that were. ment is much better than each separately the constitution ofthe United States," con­ considered."97 ceded At least since the decision in Marbury, certain powers, in the exer­ if not 98 the business of the Supreme cise of which he is to use his own discretion, Court has had a constitutional dimension. and is accountable only to his country in his po­ This much is readily litical character and 10 his own conscience.,,93 volume work entitled But delivery ofcommissions fell into the other United States Constitution, and category. "The question whether a right has edited by David Schultz of the Department 328 JOURNAL OF SUPREME COURT HISTORY of Political Science at Hamline University.99 using only the familiar, but not the official, The set will be a useful addition to any refer­ name of the case. ence collection, particularly one accessible to The objective and the breadth of the sub­ general readers. With 645 entries written by ject and the usual constraints imposed by pub­ some 285 contributors, it is also testimony to lishers on length meant, of course, that the considerable coordination and effort on final selection of particular topics required the Schultz's part. exercise of much discretion. As one would ex­ As Schultz explains, the Encyclopedia pect, there is an entry on each Justice currently "seeks to explain some of the major clauses, serving on the Court, through the appointment amendments, court decisions, personalities, is­ of Justice Alito. Entries also highlight recent sues, and challenges that have affected the Justices such as Sandra Day O'Connor and Constitution over its history."loo The goal de­ William 1. Brennan, Jr., but one finds none on rives from Justice Thurgood Marshall's obser­ either Byron White or Potter Stewart. As ex­ vation in 1987, during national bicentennial pected, Justices Hugo L. Black and William celebrations of the Constitution, that "[ w ]hen O. Douglas are included, but Felix Frankfurter contemporary Americans cite 'the Constitu­ and Robert H. Jackson are not. Among other tion,' they invoke a concept that is vastly dif­ individuals, Abraham Lincoln is included, but ferent from what the Framers barely began Andrew Jackson and the two Roosevelts who to construct two centuries ago." Rather, Mar­ also served as President are not. Among en­ shall continued, "the government they devised tries on particular documents, one finds one on was defective from the start, requiring sev­ the Declaration of Independence but not one eral amendments, a civil war, and momentous on the Articles of Confederation, although the social transformation to attain the system of Articles as a discrete document are reprinted constitutional government, and its respect for in full in the Appendix. Especially useful is the individual freedoms and human rights, which nearly essay-length treatment afforded topics we hold as fundamental today."lol such as "American Indians and the Constitu­ Understandably, therefore, Schultz places tion" and "The Federalist Papers." Like the the focus throughout strongly on both Amer­ other books surveyed here, the Encyclopedia ican constitutional development and the is a usable reminder of the broad and continu­ Supreme Court. Accordingly, literally dozens ing role of the Supreme Court in the life of the of Supreme Court decisions are explored American people. within individual entries, as are major statutes, terms, and concepts. The cases include not only those usually awarded "landmark" sta­ THE BOOKS SURVEYED IN THIS tus (such as Marbury v. Madison and Cooley ARTICLE ARE LISTED v. Board of Wardens 102) but some very recent ALPHABETICALLY BY AUTHOR holdings too (such as District of Columbia v. BELOW 103 Heller ). Happily there is the unexpected JOHNSON, TIMOTHY R., AND JERRY GOLDMAN, find as well, such as Corfield v. Coryell 104 EDS. A Good Quarrel: America's Top Le­ from the Circuit Court level, although one gal Reporters Share Stories from Inside wonders why Butchers' Benevolent Associa­ the Supreme Court (Ann Arbor: Univer­ tion of New Orleans v. Crescent City Live­ sity of Michigan Press, 2009). Pp. xvi, 195. Stock Landing and Slaughter-House Co., 105 in ISBN: 978-0-472-03326-3. Paper. which Corfield figures prominently, is not also at least cross-listed simply as "Slaughterhouse NOURSE, VICTORlA F. In Reckless Hands: Cases." Someone interested in an entry on this Skinner v. Oklahoma and the Near Tri­ case will not find it if the search is made by umph of American Eugenics (New York: THE JUDICIAL BOOKSHELF 329

w.w. 240. ISBN: 978-0­ statistics. Senate hearings for Judge Thomas for 393-06529. Cloth. eleven days. In printed form, they consume four volumes and occupy five linear inches of shelf space. Lnt'''U'J. DAVID A. 1. The Sodomy Cases: 4 Alongside the hearings for both Bork and Thomas, those Bowers v. Hardwick and Lawrence v. Texas for Kennedy nominee Byron White in 1962 seem decid­ University Press of Kansas, edly quaint. Public hearings by the Judiciary Committee for White lasted a scant one hour and thirty-five minutes xiii, 265. ISBN: 978-0-7006­ and in printed form fill no more than a thin pamphlet. 1636-7. Cloth. 5Alpheus Thomas Mason and Donald Grier Stephenson, Jr., American Constitutional Law: Introductory Essays ED. Encyclopedia of the and Selected Cases (l5th ed" 2009), 13. United States Constitution, 2 volumes 6Charles Warren, The Supreme Court ill United States York: Facts on 2009. Pp. xvii, History (rev. ed., 1926), vol. 2,401 904. ISBN: 978-0-8160-6763-3. Cloth. 7See generally Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1990). The Bron­ AND DAVID MCKEAN. The ner book is the most balanced book-length account of the Great Decision: Jefferson, Adams, Mar­ Bork confirmation fight and the Battle for the Supreme E. Yarbrough, David Hackett Souter: Tradi­ Court York: Public Affairs, 2009). tional Republican on the Rehnquist Court (2005), 132. 9/d. 258. ISBN: 978-0-472- \0837-4. Cloth.

May 2009, President Obama announced that he would ENDNOTES nominate Judge Sotomayor of the United States Court of Appeals for Second Circuit. The Senate con­ I For the O'Connor seat, President Bush nominated Judge firmed Judge Sotomayor's nomination in August 2009. John G. Roberts, Jr., on July 19, 2005. On September R. Johnson and .ferry Goldman, A Good Quar­ 3, however, shortly before hearings on the Roberts nom· rel (2009), hereafter cited Johnson and Goldman. ination were to begin in the Senate Judiciary Commit­ in Irving DiUard, The Spirit of Uberty (1960), tee, Chief Justice William H. Rehnquist lost his struggle lOt with cancer. For the first time since 1971, a President 14These important limitations date from two precedent­ would have two Supreme Court seats to fill. In a decision setting positions adopted by the Court in the J790s. First, that surprised few, Bush then announced on September five Justices "sitting in various circuit courts, held that 5 that he would nominate Roberts for the Chief Justice­ Congress could not constitutionally require them to pass ship. Senate confirmation and the swearing 111 followed on on the validity of veterans' pension claims" partly be­ September, 29. Attention then returned to a replacement cause such matters were nonjudicial in nature. The Jus­ for Justice O'Connor, with Bush announcing on October tices avoided collision with Congress on the pension­ 3 that her seat should go to Wllite House Counsel and claims matter by reading the statute as designating them Bush confidante Harriet Miers. When Miers' nomination to act as commissioners, not judges. The Justices then was withdrawn on October 27, the President turned on performed this duty voluntarily. Second, through corre­ October 31 to Judge Samuel A. Alito, Jr., who was con­ spondence from Chief Justice Jay, the Court declined to firmed and sworn on January 31,2006. Until ChiefJustice render an opinion, requested by President Washington by

Rehnquist's death in 2005, the Bench had been rt:lnmKal111V way of Secretary of State Thomas Jefferson, on presi­ stable for a number ofyears. Indeed, at no time since dential regulations implementing the Neutrality Procla­ when Congress set the Court's rosIer at nine, had many mation of 1793. See William M. Wiecek, Liberty Under years passed without a vacancy. Moreover, excepting only Law: The Supreme Court in American Life (1988), the period 1812-1823, the years between Stephen G. Breyer's arrival in 1994 and the arrival of Jus· IS]ohnson and Goldman, viii. lice Roberts and Justice Alito in 2005 and 2006 mark the see issue number 2 of volume 29 of The longest stretch ofstability in Court membership on record. Court His/ory (2004) article by Justice David H. Souter to President Barack L Powe, Jr., is in fact entitled "Writing the First Draft Obama, available at http://www.supremecomtus.govJ of History" It focuses on Anthony Lewis. who was the pubticinfo/press/DHSLetterpdf (last visited on Septem­ first newspaper reporter assigned 10 cover the Supreme ber 27,2009). Court full time. lEven the maelstrom that followed the nomination of 17 Gabriel A. Almond, The American People and Foreign Judge Clarence Thomas in 1991 fell short of the Bork Policy (1950), 140. 330 JOURNAL OF SUPREME COU H

18 385 (1967), 90. 19 548 230 (2006), 53 Nourse notes thaI the details ofthe second offense have 20 539 U.S, 306 (2003), been losl. Nourse, 91, n. 531 US. 98 (2000). 54Nourse, 125, 55 Skinner v. State, II P,2d 123, 129 (Okla. 1941), Os­ (last visited September 25,2009), born, 1., dissenting, quoted in Nourse, 134. 23 505 U.S, 833 (1992). 56New Slate Ice Co. v. Liebmann, 285 U.S. 262 (1932), Alito dissented from the Third Circuit's holding 57"11 is one of the happy incidents of the federal system on this point. Ihal a single courageous stale may, if ils citizens choose, 25 492 U.S, 490 (1989), serve as a laboratory; and try novel social and economic 26 410 US, 113 (1973). experiments without risk to the rest of the country." fd., 27 492 US. at 530 (O'Connor, L concurring) (emphasis 311 (Brandeis, J., dissenting). added). 58 Nourse, 140. 28 See Thornburgh v. American Colfege of Obstetricians 59Jd.,141. and Gynecologists, 474 US. 809 (1986). In this case, the 6oNourse, 147, Court struck down another comprehensive abortion statute 61 See id., 152 n, from Pennsylvania. 62 316 US, at 541 (emphasis added), 29 Johnson and Goldman, 44. 63 Nourse, 152. 47. 64 394 U.S. 618 (1969). 311d. (emphasis in the original). 65478 US. 186 (1986). 321d. 66539 U.S. 558 (2003). 33505 833, 67David A. 1. Richards, The Sodomy Cases (2009), here­ 34 Johnson and Goldman, 60. after cited as Richards. 35 381 479 (1965). Alfred H. Kelly, Win­ 68The author is no newcomer to the subject, having fred H. Harbison, and Herman Belz, The American Con­ thored The Case for Gay Rights: From Bowers to stitution: lis Origins and Development (1991), voL 2, Lawrence and Beyond, published by the University Press 739--40, ofKansas in 2005. 36Samuel Warren and Louis D, Brandeis, "The Right to 69 A current list of titles is available online at http:// Privacy," 4 Harvard Law Review 220 (1890). Warren and www.kansaspress.ku,edulprintbyseries.html (last visited Brandeis' particular concern was newspaper prying into on September 25,2009), personal affairs. 70 Richards, I. 370lmslead v. Uniled Siales, 277 U.S. 438, 478 (1928) 71Id., 2. (Brandeis, .I., dissenting). 72Id.,84. 38 316 U.S. 535 (1942), 73/d. 39 fd., 536. 74Id., 85. It is unclear why Richards thought it pertinent 4oYictoria F. Nourse, In Reckless Hands (2008), hereafter to mention at this point, and then to emphasize again ciled as Nourse. later, that the clerk was Mormon, in that the religious 41 316 U.S. at 541. affiliations of others close to the case do not seem gener­ 42The statement first appeared in an essay by Frankfurter ally to be identified. In any event Powell, a Presbyterian, on Justice Holmes that was published in The A lionlie (Oc­ would presumably have been aware ofthal fact. See I'd., 85, tober 1938),484. The essay was reprinted in Felix Frank­ 106, furter, Law and Politics. Archibald MacLeish and E. F. 87. Prichard, Jr., eds. (1961),61. U.S. 660 (1962). The decision made the Eighth 43 Address before the Bar of the Supreme Court on the Amendment applicable to the states by way of the Four­ death ofChief Justice Fuller, 219 US, at xv. Wickersham teenth Amendment. Richards incorrectly identifies the was Attorney General in President Taft's administration case as "Robinson v. Powell." See Richards, 89. and served from 1909 unti I 1913. Richards, 89. 44304 US. 144 (1938). 45 Nourse, 21. 791d. 47, 91. 31 SlId., 92. 14. 104. 49Buck v. Bell, 276 U.S. 200, 207 (1927) 831d. 50Nourse, 87. 105. 51 316 US. at 537, 179. THE JUDICIAL BOOKSHELF 331

86Marbw), v. Madison, 5 US. (I Crane h) 137 (1803). 96S1oan and McKean, 169. 87Cliff Sloan and David McKean, The Great Decision 97William Van Alstyne, "A Critical Guide to Marbury v. (2009), hereafter cited as Sloan and McKean. Madison," 1969 Duke Law Journal 1,29 (1969). William E. Nelson, Marbury v. Madison: The Ori­ 9SSee Chisholm v. Georgia, 2 US., 2 Dallas 419 (1793), gins and Legacy of Judicial Review (2000). probably the Court's first excursion into constitutional in­ 89Charles Warren, The Supreme Court in United States terpretation. History (rev. ed., 1926), vol. 1,231-32. 990avid Schultz, Encyclopedia of the United States 90SIoan and McKean, Constitution, 2 vols. (2009), hereafter cited as Schultz.

911d. XVII. 63. xvi. 93 5 US. at 165-66 (emphasis added). US. (12 Howard) 299 (185l). 94ld., 167. 103 128 SCt. 2783 (2008). 95Edward S. Corwin, The Doctrine of Judicial Review 104 6 Fed. Cas. 546, 55l (C.C.E.D. Pa. I 823) (No. 3230). (1914},59. 105 83 U.S. (16 Wallace) 36 (1873). Contributors

Michal R. Belknap is a professor of law at Richard Morgan is the William Nelson California Western School of Law and is an Cromwell Professor of Government at Bow­ adjunct professor of history at the University doin College. of California, San Diego. D. Grier Stephenson, Jr. is the Charles A. Tony A. Freyer is the University Research Dana Professor of Government at Franklin Professor of History and Law at the Univer­ and Marshall College and regularly con­ sity of Alabama Law School. tributes "The Judicial Bookshelf" to the Journal. Eugene Hickok is the senior policy director at Dutko Worldwide. He served as Deputy Sec­ John Yoo is a professoroflaw at the University retary in the Department of Education under ofCalifornia at Berkeley and a visiting scholar George W. Bush. at the American Enterprise Institute. 333

Illustrations

All images are from the Library ofCongress unless noted Page 308, Department of Labor below: Page 317, Courtesy of publisher Page 270, Courtesy of Jersey City Free Public Library Page 326, Courtesy of publisher

Errata On page 165 of volume 34, issue number 2, the caption is inaccurate. The last sentence should be deleted as the image is text of the Supreme Court's opinion in the Civil Rights Cases. On page 184 of volume 34, issue number 2, the President who signed the Sherman Antitrust Act into law in 1890 was incorrectly identified. It was Benjamin Harrison. SHAPING AMERICA The Supreme Court and American Society Edward F. Mannino Shaping America offers a compelling survey ofAmerican history as viewed through the perspective of the United States Supreme Court, concentrating on how the Court's decisions have shaped American society and how the Court in turn has been affected by prevailing political cultures, strong public attitudes, and several dominating justices. 328 pp., $44.95 ~&or~ The Supreme Court and American SOciety

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Available at bookstores or from .THE UNIVERSITY OF SOUTH CAROUNA pRESS 800-768-2500. sc.edu/ uscpress Sixty-Five Years ofPublishing Excellence Justice Kennedy's Jurisprudence 'rhe Fun and Necessary Meaning of liberty Frank J. Colucci UJustice Kennedy now stands at the center of the Court and is to many of its most decisions. Colucci's a and much needed in modern American

lllU).l.lUU, author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review comprehensive, and provocative Kennedy's jUrisprudence. Colucci makes a case for the proposition that, far from being a situationalist, towards a consistent and principled to the realization of a constitutional profound respect for human dignity. " -Ken L author of Constructing Civil Liberties: Discontinuities in the Development oj American Constitutional Law 264 pages, 3 illustrations, Cloth $34.95 Slavery and the Supreme Court, 1825-1861 Earl M. Maltz Foreword by Mark A. Graber history as it should be: doctrinally ";:)"'-'''.cu, and deeply rooted in context. It will become the standard against which are measured all other studies of the Court's cases. "-Peter Charles coauthor of The Court: An Essential combines with attention to environment in which the Court operated. "',,,',..mw.&> interested in antebellum law and politics will profit from his work."-Mark author of Slave Law in the American South 344 pages, Cloth $34.95

University Press of Kansas 785-864-4155 . Fax 785-864-4586 . www.kansaspress.ku.edu ANDREW I. SCHEPARD

JANET R. JOHNSTON

The Journal ofthe Association of Family and Conciliation Courts

Family Court Review is published in cooperation with the Center for Children, mil and the Law at Hofstra University School of

over four Family Court Review has served as an

plinary communication forum for all concerned with the im of all of the family court system including

in mental health a mWILEY­ ~BLACKWELL

For more information and to subscribe online visit www.int rsci nc .wil m/journal/fcr ARTiClE SUBMISSIONS Joumal of S'lprerne Court History

SUBMISSIONS The Journal of Supreme Court History acccpts manuscnpt submissIons on a continual b'lsls throughout the year. The Journal IS publIshed three times a year, lr1 March, July, and November. Submissions .1re reviewed by members of the Board of Editors And authors gennAlIy are notified withm SIX weeks as to whether an .1rtiele has been accepted for publiCltion. Authors arc not restncted from submitting to other JOllrmls sllnllitaneously. The Journal wii[ conSider paper, on ;my topic relating to the hlstory of the Supreme Court and its members, although articles that arc purely docrrinal or statistical tend not to be accepted.

MANUSCRIPTS There is no particular lengtll reqUirement. The Journaluscs endnotes instead of footnotes and discourages the use of prose in the endnotes. A variety of note styles arc acceprable, as long as there IS consistency wlthln the artlc1c ReCll1Se each article features 5 to 10 illustrations, we encourage authors to submit d wish List of illustration ideas, and, if possible, photocopies of any iiJustrarions they specifically reqlllrc. I1lustr,1tlons research and pCr1111SS10ns arc handled by the Journal staff

Plea,c submit cwo hard copIes [0 Clare Cushman, r:,Jitor, Journal of Supreme Court History, 244 East CapiroL Stree[, NE., Washingron, D.C 20003. Tel. 202-543-0400. Qucstlons? Email: [email protected]