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Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law with Some Notes on Teaching of Thayer's Subject

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Louisiana State University Law Center

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Journal Articles

1982

Faculty Scholarship

Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject

O. W. Wollensak Paul R. Baier

Louisiana State University Law Center, [email protected]

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Wollensak, O. W. and Baier, Paul R., "Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject" (1982). Journal Articles. 372.

https://digitalcommons.law.lsu.edu/faculty_scholarship/372

This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected].

HUGO LAFAYETTE BLACK AND JOHN MARSHALL HARLAN: TWO FACES OF CONSTITUTIONAL LAW-WITH SOME
NOTES ON THE TEACHING OF
THAYER'S SUBJECT

Bv 0. W. WoLLENSAK*

I.
It was a great surprise last semester when Supreme Court
Justices Hugo Black and John Marshall Harlan visited the LSU Law Center for what turned out to be a heated dialogue on color video tape. The program was hosted by LSU's media mastermind, Proꢀssor Paul Baier,** who apparently has

given up suing hospitals, see Baier v. Woman's Hospital,

and

1

turned to producing television shows, his latest entitled "Hugo ꢁaꢂyette Black and John Marshall Harlan: Two Faces of Constitutional Law."2
Professor Baier believes that constitutional law includes

•

Editor's note: Professor Baier is following Kꢒꢋl Llewellyn in using a pseudonꢀ. Llewellyn's was "Teuꢁlsꢂrꢃckh,ꢄ which meꢒns "deviꢇ's print" in Geꢋmꢒn. See THE KARL LꢁEW EꢂꢂY PꢅERS: A GumE TO THE CꢀꢁꢂEꢃION 93 (R. M. ꢆꢇlꢈnwoꢉ & W. L. Twining eds. 1970). Llewellyn wrote ꢒs Teuꢊlsdꢋ0ckh wheneveꢋ he wꢒnꢑed ꢄ ꢅs out quasi-heꢋetical piece. Professor Baier's nom de plume deꢋives fꢋom 0. W.

N

a
Holmes, Jr., one of Baieꢋ's intellectual heroes, and fꢋom "Woꢇlensak," the machine on which he plays the recoꢋdings of the oral aꢋgument in ꢐupꢋeme Couꢋꢑ cꢒses in his constitutional law classes. At the 1980 meeting of the Assꢌiation of Ameꢋicꢒn Law

ꢐchools in Phoenix, Pꢋoꢍssor Baier presented a demonstꢋation of the

ꢀ

of these recordings in teaching, anꢂ in speaking of the equipment necessary ꢄ play the ꢎꢏs in class, Mr. Baier pickeꢂ up his tꢋusty Wollensak 2520 and intꢋꢉuced it ꢆ the

crowd, saying: "This is my associate, Pꢋofessor Wollensak, whose ciꢋcle of constitutional acquaintances is wide indeeꢂ."
**Associate Professor of Law, Paul M. Hebeꢋt Law Center, Louisiꢒna ꢐꢑꢒꢑe University. A.B., Univeꢋsity of Cincinnati; J.D., Haꢋvꢒꢋd. Member of the Louisiꢒna Bar and the Baꢋ of the ꢐupꢋeme Court of the United ꢐtates. Judiciꢒꢇ Fellow, Uniꢑed ꢐtates ꢐupreme Couꢋt, 1975-1976. Pꢋoꢂucer of Court Reports, a National Aꢋchives

film history of the ꢐupꢋeme Couꢋt of the Unꢈted ꢐꢑꢒꢓs.

1.

  • A
  • case that, unfortunately ꢔr Mrs. Baieꢋ, neatly coupled the miꢋacle of

childbirth with the knotty medico-legal question of husbanꢂ access to the deliveꢋy room. For fuꢋtheꢋ detꢒils, see Appendix A, infra, note 1.

Because the annotꢒtions ꢇ this aꢋticle constitute an extensive commenꢑꢒꢋy on the materiaꢇs and methods of teaching constitutional Jaw, they aꢋe set ꢕꢋth separately as Appendix A, infra.

1

[Vol. 9

  • 2
  • SOUTHERN UNIVERSITY LAW REVIEW

men:

I suppose this is obvious, but our methods have not recognized the fact. Ours is a government of laws, we say proudly, not of men. And so our studenꢀ study hundreds of cases, case a�ter case, the very embodiment of constitutional law. Never. mmd the men who make it. I believe our ideals have gotten m the

way of teaching truth: Ours is a government of laws and of

men.8

The Black-Harlan dialogue was Professor Baier's way of focusing student attention on the persons who make the law. "I have always believed that if you can get a judge's philosophy out in the open, you can better understand his cases," he says.

II.

Baier got the idea ꢀr his Black-Harlan dialogue while watching Steve Allen's "Meeting of Minds," A PBS television program that allows the viewer to see and hear noted historiꢀ figures talking about their lives and sharing ideas. Anyone who has seen this program knows it teaches history in a very lively fashion; it also tends to iꢄprove the minds of the listeners-in. Doubtless, Henry Adams, whose job it was to teach history at Harvard College back in 1870, would have welcomed these illuꢄinating conversations ꢀ his classroom.• But TV was a technology unknown to ꢄan, and Steve Allen was not yet sucking his thuꢄb.
A few years ago Norman Redlich's ingenious "Black-
Harlan Dialogue" appeared in print.5 The article, which Professor Redlich openly acknowledged as an unconventional ꢀrm of legal scholarship,8 is really the script ꢀr a short play featuring Justices Black and Harlan, who are engrossed in a meeting of ꢄinds of their own. Scene I depicts a country lane in Heaven in late Spring 1975. The Justices are out for their daily "constitutional," as it were. Each has a marked-up copy of the Constitution which he managed to take with him on the long journey in 1971. As they stroll along, Black and Harlan

  • talk about liꢁ and law-argue would be
  • a
  • better

word-through three engaging scenes, with Professor Redlich adding a few citations in the notes ꢂr the reader's guidance.
One excerpt ꢃoꢄ Professor Redlich's article7 is enough to demonstrate �ot. only is it refreshing reading, but, more important here, it is also powerful teaching.

1982]
BLACK AND HARLAN

3

BLACK: You may think I twisted history to try to get the Bill of Rights into the fourteenth amendment, but at least my view roots the Court's authority over the states in specific constitutional provisions. Under your theory each case would be decided according to the concept of fundamental fairness shared by a majority of Justices. It would all depend on what would shock a particular judge's conscience.

HARLAN: I don't think that's fair, Hugo. Ever since Adamson, you have constantly poked fun at those of us who believed that due process involves a careful process of inclusion and exclusion. We were no less dedicated to basic human rights than you were. We simply did not believe that the Bill of Rights, word ꢀr word, is what the due process clause is all about. Where the Constitution says that life, liberty and property cannot be taken without due process of law, it calls upon us ꢀ interpret that language in terms of evolving principles of American justice.

BLACK:
I never doubted your sincerity, John. It's just that those words don't mean anything to me-even when I hear them up here. And that's why your system, which I'm afraid is prevailing, gives so much power to the courts. Depending on their own whims or shifting political pressures, judges will now be able to expand or contract individual rights.

HARLAN: Hugo, I rather doubt that my views have prevailed. However, even under your approach, judges have to make the individual value judgments you attribute ꢀ my system. I'm sure you thought that if the first section of the fourteenth amendment could be read as incorporating the entire Bill of Rights, judges would have to decide cases involving individual rights and liberties within the context of specific constitutional provisions and not on the basis of personal judgments. However, as I said in Griswold, personal judgments are involved in all important constitutional questions, whether they concern a specific provision of the Bill of Rights or the due process clause of the fourteenth amendment. As long as America is a changing society, there is simply no way our constitutional system can be ꢁozen into the kind of rigid pattern you were trying to develop in the '50's and '60's. Consequently, your system wouldn't protect individual liberty any more than mine.

BLACK: I can't guarantee that it would. But my system gives to the American people the rights that are set ꢂrth in the Constitution rather than the rights that a majority of judges think they should have at any particular moment of history. And I

[Vol. 9

SOUTHERN UNIVERSITY LAW REVIEW

4

have more faith in the text of the Constitution than in the changing values of a majority of judges.

III.

Reading Norman Redlich's Black-Harlan Dialogue co�-

vinced Mr. Baier to make a production of his own, only this time he proposed lifting the Justices off the printed page and

having them come to class "live and in person," so to spe�k,

for his students to see and hear. "A casebook," says Baier, "can be a dull thing and the case method of instruction lifeless.

"8

Only the other day law teachers were challenged anew to do something, and not just to complain, about student boredom in the second and third years of law school.8 The words are those of Derek Bok, seventh Dean of the Harvard Law School, now President of Harvard University:

The great weakness of legal education is that Langdell's vision is the only substantial insight we have ever had. As a result, the law school experience tends to grow repetitive, and interest declines steadily throughout the last two years . . . . If we try seriously to do something about student apathy in the second and third years [we should] offer a wider variety of teaching methods.10

Why not try the magic of television production?11"[N]o teaching is good," said James Bradley Thayer, "which does not rouse and 'dephlegmatize' the students-to borrow an expression attributable to Novalis-which does not engage as its ꢀ- lies, their awakened, sympathetic, and cooperating facul-

ties."12 Thayer's Cases on Constitutional Law, which was

published in 1895, is the grandfather of today's teaching materials in constitutional law. Looking at the surviving grandchildren you can see Thayer's influence. Without question, James Bradley Thayer was a giant scholar. But scholarship is not teaching and, like the rest of us, even Thayer had his ups and downs in class.13 One wonders what Thayer would think of this thoroughly modern notion of video-taping two students portraying Justices Black and Harlan after a period

of �ntense i�struction on their philosophies and opinions? To Baie!, the idea seemed to have pedagogical promise.14 After

all,

m

the words of one of Thayer's teaching colleagues at
Harvard: "No man ever learned to dance or to swim by read-

1982]

BLACK ꢀD HARLAN

5

ing treatises upon saltation or natation."H Why not try putting our students in the justices' place?18 And so ꢀr three weeks Baier worked with two students in his Constitutional Law II course, a second-year, individual rights offering. Raymond Maher, who has an Alabaꢃa accent of sorts, volunteered to play the role of Hugo Black. Miles Tilly, who, believe it or not, actually looks like John Marshall Harlan II (especially after an hour's ꢃake-up session at the Drama School on campus) was chosen to portray Justice Harlan. The group ꢃet ꢁequently at "The Library,"11 where Baier loosened up his two stars with a soothing libation. Miles had never beꢀre done anything like this. Ray, on the other hand, was a regular haꢃ and he had no trouble with the assignꢃent. The three of theꢃ read all the biography on Black and Harlan they could find,18 and they read ꢃany of their opinions.

19

Finally the big day caꢃe, and 60 minutes of color video tape was filꢃed at LSU's Instructional Resource Center. The group worked without a script, and so the event was a kind of oral exaꢃination ꢂr the students. By the time the tape was made, Ray and Miles saw things pretty much the way their judicial counterparts did, which is quite evident ꢁoꢃ the video tape itself. After the filming, the tape was edited to 35 minutes, thus allowing 25 ꢃinutes ꢀr questions and discussion between the students and the two justices after the tape

20

was shown in class.
It was interesting to observe the reaction of the students to the tape. After a minute or two of expected snickering ("Hey, look at the make-up job they did on Ray"), the class settled down and began listening attentively to what was being said. In a very real sense, Justices Black and Harlan had come alive in the classrooꢃ.

IV.
The transcript of "Hugo Lafayette Black and John Marshall Harlan: Two Faces of Constitutional Law," as well as the video tape itself, is available ꢁoꢃ Professor Baier, and so the full interview need not be set out here. A brief sampling will suffice to allow the reader to evaluate the learning21 captured on the tape.

BAIER: Justice Black, you are the Senior Associate Justice. I suppose I should ask you the first question.

[Vol. 9

6

SOUTHERN UNIVERSITY LAW REVIEW

BLACK: Yes sir.

BAIER: Can you telꢁ ꢌs what is yoꢌr jꢈdiciaꢁ phiꢁosophy? If I ask you that question, whꢆt woꢌꢁd yoꢌ say aboꢌꢄ yoꢈr jꢈdiciꢆꢁ phiꢁosophy?

BLACK: My judiciaꢁ phiꢁosophy is basicaꢁꢁy coꢍsꢄiꢄꢈꢄioꢍꢆꢁ- ism. I interpret the Constitꢈtion as it is writꢄꢃꢍ, ꢆꢍd I ꢀꢁꢂꢃvꢃ thaꢄ this is the way the Fouꢍding Fꢆthꢃrs iꢍꢄꢃꢍdꢃd ꢄhꢃ iꢍsꢄiꢄꢈ- tion of the Sꢌpreme Coꢌrꢄ to be.

BAIER: How do yoꢌ inꢄꢃrprꢃt ꢄhꢃ Coꢍstitꢈꢄioꢍ, Mr. Jꢌsꢄicꢃ Bꢁack?

BLACK: By what is writꢄen, a ꢁiꢄꢃrꢆꢁ iꢍꢄꢃrprꢃꢄꢆꢄioꢍ,11 ꢆꢍd I beꢁiꢃve that this is the way ꢄhe Foꢌꢍdiꢍg Faꢄhꢃrs iꢍꢄꢃꢍdꢃd ꢄhꢃ iꢍstitꢌtion of the Sꢌprꢃmꢃ Coꢌrꢄ ꢀ bꢃ.

BAIER: Mr. Jꢌstice Harꢁan, how woꢌꢁd yoꢌ dꢃscriꢀ yoꢈr jꢈ- diciaꢁ phiꢁosophy?

HARLAN: Weꢁꢁ, my phiꢁosophy is one ꢃssꢃꢍꢄiaꢉꢁy of sꢃꢁf-rꢃ- straint on the parꢄ of the jꢌdgꢃ. I don'ꢄ bꢃꢁiꢃvꢃ ꢄhꢆt jꢈdgꢃs shoꢌꢁd make law, simply thꢆꢄ thꢃy shoꢌꢁd iꢍꢄꢃrprꢃꢄ whꢆꢄ ꢄhꢃ ꢁaw says, and in interpreting thꢃ Constiꢄꢌꢄioꢍ I doꢍ'ꢄ bꢃꢁiꢃvꢃ it was madꢃ to be iꢍterprꢃted ꢁiꢄꢃraꢁꢁy. As Mr. Chiꢃf Jꢈsꢄicꢃ Mꢆꢇ- shaꢁꢁ once said, "We must aꢁways rꢃmꢃmbꢃr ꢄhaꢄ iꢄ is ꢆ Coꢁtitution wꢃ are ꢃxpoꢌndiꢍg.

"28

BAIER: Mr. Jꢌstice Bꢁack, yoꢌr Broꢄhꢃr Hꢆrꢁꢆꢍ sꢆid ꢄhꢆꢄ yoꢈ arꢃ ꢍot supposed ꢄo interpret thꢃ Coꢍstiꢄꢌꢄioꢍ ꢁiꢄꢃrꢆꢁꢁy.

BLACK: Hꢃ's wrong.

  • BAIER:
  • hꢆvꢃ yoꢌ ꢃvꢃr, oꢍ pꢆr-
  • (ꢁaꢌghing) Hꢃ's wroꢍg-wꢃꢁꢁ

ticꢌꢁar cꢆses, reachꢃd opposiꢄꢃ rꢃsꢈꢁꢄs bꢃcꢆꢈsꢃ yoꢈ ꢆrꢃ of ꢄhꢃ view that the Coꢍstitꢈtioꢍ oꢌght ꢂ bꢃ iꢍtꢃrprꢃꢄꢃd ꢁiꢄꢃrꢅꢁy ꢆꢍd hꢃ ꢆpparꢃntꢁy is not?

  • BLACK: Yes, many timꢃs. Griswold v. Connecticut•• is
  • ꢆ

cꢁassic example of what you jꢈsꢄ said. I do noꢄ bꢃꢁiꢃvꢃ thꢆꢄ ꢄhꢃ Constitꢌtion had anything in iꢄ ꢄhꢆꢄ covꢃrꢃd ꢄhꢆꢄ pꢆꢇꢄicꢈꢉꢊ casꢃ, bꢌt my Brother Johꢍ bꢃꢁievꢃd ꢄhꢃ oppositꢃ ꢆꢍd mꢆdꢃ ꢉꢆw, which a judge-I feeꢁ a jꢈdge shoꢈꢁd ꢍot do.

BAIER: Justicꢃ Harꢁꢆn, whꢆꢄ wꢆs yoꢈr posiꢄioꢍ iꢍ Griswold

v. Connecticut?

HARLAN: Weꢁꢁ, first of aꢁꢁ, I doꢍ't ꢄhiꢍk wꢃ mꢆdꢃ ꢁꢆw iꢍ thꢆꢄ case. My position in Griswold u. Connecticut wꢆs ꢄhaꢄ thꢃ Dꢈꢃ Process Cꢁaꢌse of the ꢋꢌrꢄꢃeꢍꢄh ꢆmꢃꢍdmꢃꢍꢄ sꢄꢆꢍds oꢍ iꢎ oꢀ boꢄtom. I don't beꢁieve wꢃ are ꢁimiꢄꢃd by ꢄhꢃ words of thꢃ Coꢍ-

  • 1982)
  • BLACK ꢀD HARLAN

7

sꢄꢐꢄꢁꢄꢐꢒꢃ. Wheꢃ ꢄhe Dꢁe Prꢒcess Cꢋaꢁse of ꢄhe ꢀꢁrꢂeeꢃꢄh ꢎmeꢃdꢈeꢃꢄ sꢎys "ꢃoꢅ shaꢋꢋ aꢃy Sꢂaꢂe deprꢐve aꢃy persꢒꢃ of lꢐfe, lꢐbeꢅꢄy, ꢒr pꢅopeꢅꢄy, wꢐꢄhꢒꢁꢄ due pꢅꢆess of ꢋꢎw," I ꢐꢃꢂerpreꢄ "ꢋꢐberꢄy" as meanꢐng ꢄhꢒse fuꢃdamenꢄal vꢎꢋues wiꢄhꢒꢁꢄ whꢐch ꢒꢁr basꢐc socꢐal and ꢑꢒꢋꢐꢄꢐcaꢋ ꢐꢃsꢄꢐꢄꢁꢄꢐꢒꢃs caꢃꢃꢒꢄ survive.

BAIER: Aꢃd one of ꢄhose fꢁꢃdꢎꢈenꢄal vaꢋꢁes was whꢎꢄ ꢀ

Griswold v. Connecticut?

HARLAN: The pꢅꢐvacy ꢒf ꢄhe ꢈꢎrꢐꢂal ꢅeꢋaꢄꢐonshꢐꢑ. I dꢒ ꢃoꢄ belꢐeve ꢄhaꢄ ꢄhe sꢄaꢄe has ꢄhe rꢐghꢄ ꢄꢒ ꢁse ꢄhe fꢁlꢋ sancꢄꢐꢒꢃ of ꢄhe crꢐꢈꢐꢃꢎl lꢎw ꢄo ꢐꢃvade ꢄhe prꢐvacy of maꢅꢅꢐed cꢒꢁpꢋes.

BAIER: Mr. Jꢁsꢄꢐce Blꢎck, as yꢒꢁ ꢈenꢄꢐoꢃed, yꢒꢁ dꢐsseꢃꢄed

ꢐn Griswold v. ꢀonnecticut.

BLACK: Yes sꢐꢅ. BAIER: Whaꢄ ꢐs yoꢁr owꢃ vꢐew ꢎbꢒꢁꢄ a sꢄaꢄe ꢄhꢎꢄ wꢒꢁꢋd ꢑrohꢐbꢐꢄ ꢎ ꢈarrꢐed coꢁple ꢇoꢈ ꢁsꢐꢃg ꢎ conꢄꢅacepꢄꢐve?

BLACK: Welꢋ, ꢀ I saꢐd ꢐꢃ ꢈy ꢒꢑꢐꢃꢐon, I persꢒꢃꢎꢋꢋy ꢄhꢒughꢄ ꢄhe lꢎw was rꢐdꢐcꢁloꢁs, bꢁꢄ ꢎ jꢁdge dꢒes noꢄ make ꢋꢎw. A ꢋegꢐsꢋaꢄꢁre ꢈꢎkes ꢋꢎw, and I feeꢋ ꢄhꢎꢄ ꢎ jꢁdge's fꢁncꢄꢐꢒꢃ ꢐs ꢁ inꢂerpreꢄ ꢋegꢐsꢋꢎꢄꢐve law aꢃd nꢒꢄ ꢁ ꢈꢎke ꢐꢄ. The peopꢋe eꢋecꢄ ꢎ sꢒvereꢐgꢃ body ꢒf ꢋegꢐslaꢄors ꢄꢒ ꢈꢎke ꢋꢎw, noꢄ jꢁdges.ꢉ1

  • BAIER: Sꢒ yꢒꢁ have
  • a
  • fꢁꢃdaꢈeꢃꢂaꢋ dꢐffeꢅeꢃce of ꢒꢑꢐꢃꢐꢒn

wiꢄh respecꢄ ꢄꢒ ꢄhe jꢁdge's fꢁꢃcꢄꢐꢒꢃ ꢄhaꢄ caꢁsed ꢎ differeꢃce of voꢄe ꢐꢃ Griswold v. ꢀonnecticut. Mr. Jꢁsꢄꢐce Bꢋꢎck, cꢎn yꢒꢁ gꢐve ꢁs ꢎ secꢒꢃd ꢐllꢁsꢄꢅaꢄꢐꢒꢃ ꢒf hꢒw jꢁdꢐcꢐaꢋ phꢐꢋꢒsꢒꢑhy ꢋed ꢂ dꢐffereꢃꢄ resꢁlꢄs, ꢐꢃ ꢄhe case ꢒf Jusꢄꢐce Harlaꢃ aꢃd yꢒurꢊeꢋꢌ

BLACK: Welꢋ, goꢐꢃg bꢎck ꢁ whꢎꢄ my Broꢄher Hꢎrꢋꢎn ꢊaid abꢒꢁꢄ ꢄhe foꢁrꢄeenꢄh ameꢃdꢈeꢃꢄ, I feel he ꢐs wrꢒꢃg. Iꢄ wꢎs a paꢅꢄꢐcuꢋar ꢑꢒꢐꢃꢄ of dꢐspꢁꢄe beꢄweeꢃ me and hꢐs ꢑredecessꢒr, Felꢐx ꢍrꢎꢃkꢏrꢄeꢅ. My opꢐꢃꢐꢒꢃ ꢐꢃ Adamson v. ꢀꢁlifoꢂiꢁ

..

ꢐn
1947 bꢎsꢐcꢎꢋly gꢐves whaꢄ I feeꢋ ꢄhe Foꢁrꢄeenꢄh Aꢈeꢃdmenꢄ meaꢃs; aꢃd I don'ꢄ belꢐeve ꢄhaꢄ ꢎ sꢒ-calꢋed jꢁdge's ꢐdea ꢒf ꢋꢐberꢄy shꢒꢁꢋd be read ꢐnꢄo ꢐꢄ.

BAIER: As I ꢁꢃdersꢄaꢃd ꢄhe Adꢁmson case, ꢎꢃ ꢐmꢑꢒrꢓꢄ qꢁesꢄꢐꢒꢃ wꢎs ꢄhe naꢄꢁre of dꢁe ꢑrꢒcess of law and hꢒw ꢒꢃe deꢄerꢈꢐꢃes whꢎꢄ ꢐs and whaꢄ ꢐs ꢃꢒꢄ ꢎccordꢐꢃg ꢃ dꢁe prꢒcess of law. Aꢃd yꢒꢁr vꢐew, Mr. Jꢁsꢄꢐce Bꢋꢎck, ꢄ ꢄhaꢄ yꢒꢁ look ꢁ ꢄhe Bꢐll ꢒf Rꢐghꢄs?

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    In Defence of the Court’s Integrity 17 In Defence of the Court’s Integrity: The Role of Chief Justice Charles Evans Hughes in the Defeat of the Court-Packing Plan of 1937 Ryan Coates Honours, Durham University ‘No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. We are a young nation and nothing can be taken for granted. If our institutions are maintained in their integrity, and if change shall mean improvement, it will be because the intelligent and the worthy constantly generate the motive power which, distributed over a thousand lines of communication, develops that appreciation of the standards of decency and justice which we have delighted to call the common sense of the American people.’ Hughes in 1909 ‘Our institutions were not designed to bring about uniformity of opinion; if they had been, we might well abandon hope.’ Hughes in 1925 ‘While what I am about to say would ordinarily be held in confidence, I feel that I am justified in revealing it in defence of the Court’s integrity.’ Hughes in the 1940s In early 1927, ten years before his intervention against the court-packing plan, Charles Evans Hughes, former Governor of New York, former Republican presidential candidate, former Secretary of State, and most significantly, former Associate Justice of the Supreme Court, delivered a series 18 history in the making vol. 3 no. 2 of lectures at his alma mater, Columbia University, on the subject of the Supreme Court.1 These lectures were published the following year as The Supreme Court: Its Foundation, Methods and Achievements (New York: Columbia University Press, 1928).
  • Justice Sherman Minton and the Protection of Minority Rights, 34 Wash

    Justice Sherman Minton and the Protection of Minority Rights, 34 Wash

    Washington and Lee Law Review Volume 34 | Issue 1 Article 6 Winter 1-1-1977 Justice Sherman Minton And The rP otection Of Minority Rights David N. Atkinson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Rights and Discrimination Commons Recommended Citation David N. Atkinson, Justice Sherman Minton And The Protection Of Minority Rights, 34 Wash. & Lee L. Rev. 97 (1977), https://scholarlycommons.law.wlu.edu/wlulr/vol34/iss1/6 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. JUSTICE SHERMAN MINTON AND THE PROTECTION OF MINORITY RIGHTS* DAVID N. ATKINSON** Discrimination in education, in housing, and in employment brought cases before the Vinson Court which were often resolved by a nearly unanimous vote, but they frequently raised constitutional and institutional dilemmas of agonizing dimensions. A fundamental commitment of the Court at this time was accurately reflected by Justice Jackson's off-the-Court admonition to his colleagues on the inadvisability of seizing "the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construc- tion."' There were strong voices within the Vinson Court which held rigorously to Justice Holmes' dictum that "judges do and must legis- late, but they can do so only interstitially; they are confined from molar to molecular motions." Institutional caution, theoretically at * This is the fifth and final of a series of articles written by Professor Atkinson dealing with the Supreme Court career of Justice Sherman Minton.
  • New York University Law Review

    New York University Law Review

    NEW YORK UNIVERSITY LAW REVIEW VOLUME 86 JUNE 2011 NUMBER 3 MADISON LECTURE LIVING OUR TRADITIONS THE HONORABLE ROBERT H. HENRY* In the annual James Madison Lecture, Robert Henry, former Chief Judge of the United States Court of Appeals for the Tenth Circuit, explores Justice John Marshall Harlan H's notable dissent in Poe v. Ullman. President Henry carefully examines Justice Harlan's method of constitutional interpretation. Refusing to adopt a "literalistic"reading of the Constitution and instead looking to the "history and purposes" of a particularconstitutional provision, Justice Harlan's approach serves as a source of both flexibility and restraint. Of particular importance is Justice Harlan's recognition of the role that "living" traditions play in supplying meaning to the concept of due process of law. What emerges from this probing review of Justice Harlan's Poe dissent is a moderate and thoughtful response to originalism. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liqui- dated and ascertained by a series of particular discussions and adjudications. -THE FEDERALIST No. 37 (James Madison)' * Copyright © 2011 by Robert H. Henry, President and CEO, Oklahoma City University. Formerly, Chief Judge, United States Court of Appeals for the Tenth Circuit. An earlier version of this text was delivered as the James Madison Lecture at the New York University School of Law on October 12, 2010. I would like to thank Daniel Correa and Laana Layman for research assistance; also, for their comments and criticism, I thank Professors Art LeFrancois, Andy Spiropoulos, and Michael Gibson of the Oklahoma City University School of Law.
  • Reslegal V02 1..3

    Reslegal V02 1..3

    *LRB09414136HSS49035r* HR0622 LRB094 14136 HSS 49035 r 1 HOUSE RESOLUTION 2 WHEREAS, William Hubbs Rehnquist was born in Milwaukee, 3 Wisconsin, on October 1, 1924, the son of William Benjamin 4 Rehnquist, a paper salesman, and Margery Peck Rehnquist, a 5 translator and homemaker; and 6 WHEREAS, After graduating from Shorewood High School in 7 1942, Mr. Rehnquist attended Kenyon College for one quarter in 8 the fall of 1942 before entering the U.S. Army Air Corps; and 9 WHEREAS, Mr. Rehnquist served in World War II from March of 10 1943 to 1946; he was placed into a pre-meteorology program and 11 was assigned to Denison University until February of 1944, when 12 the program was shut down; and 13 WHEREAS, The program was designed to teach maintenance and 14 repair of weather instruments; in the summer of 1945, Mr. 15 Rehnquist went overseas and served as a weather observer in 16 North Africa; and 17 WHEREAS, After the war ended, Mr. Rehnquist attended 18 Stanford University under the G.I. Bill; in 1948, he received a 19 bachelor's degree and a master's degree in political science, 20 and in 1950, he went to Harvard University, where he received a 21 master's degree in government; he returned later to Stanford 22 University, where he attended law school, graduating first in 23 his class; and 24 WHEREAS, Mr. Rehnquist went to Washington, D.C., to work as 25 a law clerk for Justice Robert H. Jackson during the court's 26 1951-1952 terms; and 27 WHEREAS, Mr.
  • Justice Jackson in the Jehovah's Witnesses' Cases

    Justice Jackson in the Jehovah's Witnesses' Cases

    FIU Law Review Volume 13 Number 4 Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Article 13 Constellation Spring 2019 Justice Jackson in The Jehovah’s Witnesses’ Cases John Q. Barrett Professor of Law, St. John’s University School of Law, New York City Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Constitutional Law Commons, First Amendment Commons, and the Religion Law Commons Online ISSN: 2643-7759 Recommended Citation John Q. Barrett, Justice Jackson in The Jehovah’s Witnesses’ Cases, 13 FIU L. Rev. 827 (2019). DOI: https://dx.doi.org/10.25148/lawrev.13.4.13 This Keynote Address is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 10 - BARRETT.DOCX (DO NOT DELETE) 5/9/19 6:03 PM JUSTICE JACKSON IN THE JEHOVAH’S WITNESSES’ CASES John Q. Barrett* I. Robert H. Jackson Before He Became Justice Jackson ..................828 II. Barnette in Its Supreme Court Context: The Jehovah’s Witnesses Cases, 1938–1943 ...........................................................................831 A. The General Pattern of the Decisions: The Court Warming to Jehovah’s Witnesses’ Constitutional Claims .......................831 1. The Pre-July 1941 Court ....................................................831 2. The July 1941–May 1943 Court ........................................833 3. The June 1943 Court ..........................................................834 B. Some Particulars of Supreme Court Personnel, Cases, and Decisions, From Gobitis (1940) to Barnette (1943) ................834 III. Justice Jackson on Jehovah’s Witnesses: The Author of Barnette Wrote First, and Significantly, in Douglas .....................................844 IV.
  • The Judge Advocate Journal, Bulletin No. 15, October, 1953

    The Judge Advocate Journal, Bulletin No. 15, October, 1953

    Bulletin No. 15 October, 1953 The Judge Advocate Published By JUDGE AD,'OCATES ASSOCIATION An affiliated organization of the American Bar Association, composed of lawyers of all components of the A1·my, Navy, and Air Force 312 Denrike Building W ashiugton 5 , D. C. J UDGE ADVOCATES ASSOCIATION Officer s :for 1953-1954 JOSEPH F . 0 'CONNELL, Massachusetts President GORDON SIMPSON, Texas 1st Vice Preside1J.t ROBERT E. QurxN, Rhode Island 2nd Vice President THOMAS H. Krnn, District of Columbia .. Secretar'lj EowARD B. BEALE, Maryland . Treasurer JOHN RITCHIE, III, Wisconsin . Delegate to .A. B. A. Direc tors Nicholas E. Allen, Md.; Louis F. Alyea, Ill.; Joseph A. Avery, Va.; George W. Bains, Ala.; Oliver P. B<'nnett, Iowa; Ralph G. Boyd, Mass.; E . M. Brannon, D. C. ; Paul W. Brosman, La.; Robert G. Burke, N. Y.; Charles L. Decker, Va.; Reginald Field, Va. ; Osmer C. Fitts, Vt.; Edward F . Gallagher, D. C.; George H. Hafer, Pa.; Reginald C. Harmon, D. C.; Edward F. Huber, X. Y.; William J. Hughes, D. C.; Arthur Levitt, N . Y.; Ira H. Nunn, D. C.; Alexander Pirnie, N. Y.; Allen W. Rigsby, Nebr.; Fred Wade, Tenn.; Frederick Bernays Wiener, D. C.; S. B. D. Wood, Hawaii; Milton Zacharias, Kans. Executive Secretary and Editor RICHARD H . LOVE Washington, D. C. Bulletin No. 15 October, 1953 Publication Notice The views expressed in 1nticles printed herein are not to be regarded as those of the Judge Advocates Association or its officers and directors or of the editor unless e:xp.ressly so stated. TABLE OF CONTENTS P AGE Safeguarding the Rights of American Servicemen Abr oad 1 The Annual :Meeting 8 The Teaching of Military Law in a University Law School.
  • Book Review: the Brandeis/Frankfurter Connection

    Book Review: the Brandeis/Frankfurter Connection

    BOOK REVIEW THE BRANDEIS/FRANKFURTER CONNECTION; by Bruce Allen Murphy. New York: Oxford University Press, 1982. 473 pp. $18.95. Reviewed by Judith Resnikt Shouldl be more serviceableto the State, ifI took an employment, where function would be wholly bounded in my person, and take up all my time, than I am by instructing everyone, as I do, andin furnishing the Republic with a great number of citizens who are capable to serve her? XENoHON'S M EMORABIL bk. 1, ch. 6, para. 15 (ed 1903), as quoted in a letter by Louis . Brandeis to Felix Frankfurter(Jan. 28, 1928).' I THE RELATIONSHIP BETWEEN JUSTICE BRANDEIS AND PROFESSOR FRANKFURTER From the same bits of information-letters, fragmentary notes, in- dividuals' recollections, newspaper and historical accounts-several different stories can emerge, as the storyteller brings to the materials his or her own personal concerns and hypotheses. From reading some of the correspondence between Justices Brandeis and Frankfurter,2 biog- raphies of each,3 and assorted articles about them and the times in which they lived,4 I envision the following exchanges between Brandeis and Frankfurter: The year was 1914. A young law professor, Felix Frankfurter, went to t Associate Professor of Law, University of Southern California Law Center. B.A. 1972, Bryn Mawr College; J.D. 1975, New York University School of Law. I wish to thank Dennis E. Curtis, William J. Genego, and Daoud Awad for their helpful comments. 1. 5 LETTERS OF Louis D. BRANDEIS 319 (M. Urofsky & D. Levy eds. 1978) [hereinafter cited as LETTERS]. 2. E.g., 1-5 LETTERs, supra note 1.
  • A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J

    A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J

    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia" (1994). Faculty Publications. 990. https://scholarship.law.wm.edu/facpubs/990 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ARTICLES A TALE OF TWO TEXTUALISTS: A CRITICAL COMPARISON OF JUSTICES BLACK AND SCALIA MICHAEL J. GERHARDT* The idea that Justices Hugo Black and Antonin Scalia have anything in common jurisprudentially is counterintuitive. Justice Black is associated with the progressive social and economic legislation symbolized by the New Deal and with judicial activism in protecting the poor and disen­ franchised.1 He is beloved by many liberals as a champion of individual rights, especially freedom of speech and of the press. In contrast, Justice Scalia is revered by conservatives as a true believer-combating the rising tide of liberalism, big government, and judicial activism-set on restoring traditional notions of federalism and judicial restraint.2 Any effort to liken these two Justices makes both liberals and conservatives recoil. * Professor of Law, Marshall-Wythe School of Law, The College of William and Mary. B.A. Yale University; M.Sc. London School of Economics; J.D. University of Chicago. I am grateful for the encouragement and helpful comments on earlier drafts I received from Marc Arkin, Erwin Chemerinsky, George Cochran, Neal Devins, Jill Fisch, Tracy Higgins, Michael Herz, Sandy Levinson, Chip Lupu, Tracey Maclin, John McGinnis, Peter Shane, Bill Treanor, Steve Wermiel, and Ron Wright.
  • The Evolution of U.S. Military Policy from the Constitution to the Present

    The Evolution of U.S. Military Policy from the Constitution to the Present

    C O R P O R A T I O N The Evolution of U.S. Military Policy from the Constitution to the Present Gian Gentile, Michael E. Linick, Michael Shurkin For more information on this publication, visit www.rand.org/t/RR1759 Library of Congress Cataloging-in-Publication Data is available for this publication. ISBN: 978-0-8330-9786-6 Published by the RAND Corporation, Santa Monica, Calif. © Copyright 2017 RAND Corporation R® is a registered trademark. Limited Print and Electronic Distribution Rights This document and trademark(s) contained herein are protected by law. This representation of RAND intellectual property is provided for noncommercial use only. Unauthorized posting of this publication online is prohibited. Permission is given to duplicate this document for personal use only, as long as it is unaltered and complete. Permission is required from RAND to reproduce, or reuse in another form, any of its research documents for commercial use. For information on reprint and linking permissions, please visit www.rand.org/pubs/permissions. The RAND Corporation is a research organization that develops solutions to public policy challenges to help make communities throughout the world safer and more secure, healthier and more prosperous. RAND is nonprofit, nonpartisan, and committed to the public interest. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. Support RAND Make a tax-deductible charitable contribution at www.rand.org/giving/contribute www.rand.org Preface Since the earliest days of the Republic, American political and military leaders have debated and refined the national approach to providing an Army to win the nation’s independence and provide for its defense against all enemies, foreign and domestic.
  • Southwestern Journal of International Law

    Southwestern Journal of International Law

    \\jciprod01\productn\s\swt\24-1\toc241.txt unknown Seq: 1 9-MAR-18 8:49 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW VOLUME XXIV 2018 NUMBER 1 TABLE OF CONTENTS SYMPOSIUM FREEDOM OF INFORMATION LAW S O N T H E GLOBAL STAGE: PAST, PRESENT AND FUTURE JOHN MOSS AND THE ROOTS OF THE FREEDOM OF INFORMATION ACT: WORLDWIDE IMPLICATIONS .................................... 1 Michael R. Lemov & Nate Jones RALPH NADER, LONE CRUSADER? THE ROLE OF CONSUMER AND PUBLIC INTEREST ADVOCATES IN THE HISTORY OF FREEDOM OF INFORMATION ....................................................... 41 Tom McClean Articles ARGENTINA’S SOLUTION TO THE MICHAEL BROWN TRAVESTY: A ROLE FOR THE COMPLAINANT VICTIM IN CRIMINAL PROCEEDINGS ... 73 Federico S. Efron MARTIAL LAW IN INDIA: THE DEPLOYMENT OF MILITARY UNDER THE ARMED FORCES SPECIAL POWERS ACT, 1958 ................... 117 Khagesh Gautam © 2018 by Southwestern Law School \\jciprod01\productn\s\swt\24-1\toc241.txt unknown Seq: 2 9-MAR-18 8:49 Notes & Comments A CRITIQUE OF PERINCEK ¸ V. SWITZERLAND: INCORPORATING AN INTERNATIONAL AND HISTORICAL CONTEXT IS THE MORE PRUDENT APPROACH TO GENOCIDE DENIAL CASES ........................... 147 Shant N. Nashalian A CUTE COWBOY STOLE OUR MONEY: APPLE, IRELAND, AND WHY THE COURT OF JUSTICE OF THE EUROPEAN UNION SHOULD REVERSE THE EUROPEAN COMMISSION’S DECISION .................. 177 Chantal C. Renta Review BOOK REVIEW PHILIPPE SANDS, EAST WEST STREET: ON THE ORIGINS OF “GENOCIDE” AND “CRIMES AGAINST HUMANITY” (ALFRED A. KNOPF ED., 2016) ...................................... 209 Vik Kanwar \\jciprod01\productn\s\swt\24-1\boe241.txt unknown Seq: 3 9-MAR-18 8:49 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW VOLUME XXIV 2018 NUMBER 1 Editor-in-Chief SHANT N.
  • Justice Harlan's Enduring Importance For

    Justice Harlan's Enduring Importance For

    NYLS Law Review Vols. 22-63 (1976-2019) Volume 61 Issue 3 Issue 61.3: Celebrating 125 Years of New York Law School: Faculty Chair Investitures & Issue 61.4: Select Legal Article 2 Scholarship from the New York Law School Law Review January 2017 Justice Harlan’s Enduring Importance for Current Civil Liberties Issues, from Marriage Equality to Dragnet NSA Surveillance NADINE STROSSEN John Marshall Harlan II Professor of Law at New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/nyls_law_review Part of the Constitutional Law Commons Recommended Citation NADINE STROSSEN, Justice Harlan’s Enduring Importance for Current Civil Liberties Issues, from Marriage Equality to Dragnet NSA Surveillance, 61 N.Y.L. SCH. L. REV. (2016-2017). This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. NEW YORK LAW SCHOOL LAW REVIEW VOLUME 61 | 2016/17 VOLUME 61 | 2016/17 NADINE STROSSEN Justice Harlan’s Enduring Importance for Current Civil Liberties Issues, from Marriage Equality to Dragnet NSA Surveillance 61 N.Y.L. Sch. L. Rev. 331 (2016–2017) ABOUT THE AUTHOR: Nadine Strossen is the John Marshall Harlan II Professor of Law at New York Law School and the immediate past president of the American Civil Liberties Union, 1991–2008. This article is an adapted version of the speech she gave when being honored as the John Marshall Harlan II Professor of Law. She thanks her research assistants Jakub Brodowski, Anne Easton, Elizabeth Lanza, Michael McKeown, Rachel Searle, and Rick Shea for assistance with the footnotes.
  • Justice Sherman Minton and the Balance of Liberty

    Justice Sherman Minton and the Balance of Liberty

    Indiana Law Journal Volume 50 Issue 1 Article 4 Fall 1974 Justice Sherman Minton and the Balance of Liberty David N. Atkinson University of Missouri-Kansas City Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Judges Commons, and the Legal Biography Commons Recommended Citation Atkinson, David N. (1974) "Justice Sherman Minton and the Balance of Liberty," Indiana Law Journal: Vol. 50 : Iss. 1 , Article 4. Available at: https://www.repository.law.indiana.edu/ilj/vol50/iss1/4 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Justice Sherman Minton and the Balance of Liberty DAVID N. ATKINSONt INTRODUCTION The behavior of any Justice may be in part determined by how he perceives the Supreme Court's institutional role within the political system. Justice Sherman Minton very definitely had trenchant views on the institutional role of the Supreme Court in American government, and on the function of the judge in the judicial process as well. Justice Minton believed that the Supreme Court's role in American government is circumscribed by the classic theory of the separation of powers. Although he acknowledged that the Constitution prohibits the executive and legislative branches from certain kinds of activities, he was inclined to resolve questions as to the legitimacy of executive or legislative acts in favor of their constitutionality.