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Xerox University Microfilms 300 North Zeeb Road Ann Arbor, Michigan 48106 J 76-9981 J i I I HOWARD, Lowell Bennett, 1925- f | MR. JUSTICE JOHN MARSHALL HARLAN AND THE SUPREME COURT, 1955-1971: A STUDY IN I FEDERALISM AND JUDICIAL SELF-RESTRAINT. ) The Ohio State University, Ph.D., 1975 I i Political Science, general | I i i ! ! i ' Xerox University Microfilms, Ann Arbor, Michigan 48ioe i

THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED. MR. JUSTICE JOHN MARSHALL HARLAN AND THE SUPREME COURT, 19 55-1971: A STUDY IN FEDERALISM AND JUDICIAL SELF-RESTRAINT

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

By LOWELL BENNETT HOWARD, B.A., M.A., J.D.

**#*•«•

The Ohio State University 1975

Reading Committee: Approved By

Lawrence Baum • "7 Lawrence J.R. Herson Adviser Randall B. Ripley Department of Political Science ACKNOWLEDGEMENTS

I wish to express sincere gratitude to my adviser, Professor Lawrence J.R. Herson, and to the other members of my reading committee,, Professors Lawrence Baum and Randall B. Ripley. They have been helpful with their suggestions and, above all, their kindness, patience and cooperation have been most supportive in the completion of this endeavor.

ii VITA

February 12, 1925 Born - New Boston, Ohio 1947 B.A., Bowling Green State University, Bowling Green, Ohio 1949 LL.B. (J.D., 1967), The Ohio State University, Columbus, Ohio 1954 M.A., The Ohio State University, Columbus, Ohio 1955-1971 Assistant Professor, Associate Professor, Pro­ fessor of Law, Ohio University, Athens, Ohio 1971-present Judge, Common Pleas Court, Athens County, Ohio

SELECTED PUBLICATIONS

"Negotiability Requirements Under the Uniform Commercial Code," American Business Law Journal, Vol. 2, No. 3 (Fall, 1964), 257-68. Business Law: An Introduction. New York: Barron's Educa­ tional Series, Inc., 1965. 591 pp. "Due Process and Student Discipline in Ohio Higher Education," co-author, Ohio Bar, XLIV (February 1, 1971), 129-39. "The Probationary Professor and the Constitution," co-author, California Western Law Review, Vol. 8, No. 1 (Fall, 1971), 1-74. "A ROR Program in a University Town," co-author, American Bar Association Journal, Vol. 58 (April, 1972) , 363-66. iii FIELDS OF STUDY

Major Field: Political Science American Government and Institutions. Professors Francis R. Aumann and Randall B. Ripley Comparative and Foreign Government. Professor Philip D. Stewart Politics, Political Behavior, and Political Processes. Professors Thomas A. Flinn and C. Richard Hofstetter Minor Cognate Field: Economics Labor Economics. Professor Glenn W. Miller

iv TABLE OF CONTENTS

Page

ACKNOWLEDGEMENTS ii

VITA iii INTRODUCTION 1 Chapter I. FEDERALISM, REPRESENTATION AND POLITICAL EQUALITY 26 II. FEDERALISM AND CRIMINAL PROCEDURE 105 III. FEDERALISM AND FREEDOM OF EXPRESSION: THE OBSCENITY CASES 181 IV. CONCLUSION . , 235 APPENDICES 252 A. 252 B. 256 C. 258 BIBLIOGRAPHY 259

v INTRODUCTION

This dissertation represents an effort to interpret analytically and critically the contours of the constitu­ tional doctrines of federalism and judicial self-restraint in the American polity as explicated in selected judicial opinions of Mr. Justice John Marshall Harlan during over sixteen years of service on the Supreme Court of the United States as an Associate Justice. The constitutional arenas within which the opinions of Harlan have been selected for this study include, in the main, political representation, criminal procedure and freedom of expression. Evidence is now available in the form of evaluations by Supreme Court observers and scholars that history is expected to accord to Harlan a prominent place among the Justices of the Court, alongside his illustrious grandfather and namesake, the first Mr. Justice John Marshall Harlan.1

*A recent study ranked the second Justice Harlan along with fourteen others in the "near great" category of Supreme Court Justices based on expert evaluations of the ninety-six Supreme Court Justices from the beginning of the Court up to just prior to the appointment of Chief Justice Warren E. Burger in 1969. Twelve Justices, including the first John Marshall Harlan, were ranked "great" based on the ratings given by sixty-five law school deans and professors of political science, history and law. Albert P. Blaustein and Roy M. Mersky, "Rating Supreme Court Justices," American Bar Association Journal. 58 (November, 1972), 1183-89. 1 2 During his service on the Supreme Court from 1955 to 1971, the second Harlan wrote a total of 613 opinions,2 more during his tenure than any other Justice who served with him, of which 168 were opinions for the Court, 149 were con­ curring opinions and 296 were dissenting opinions.3 Because Harlan frequently disagreed with the most significant doc­ trinal innovations made by the majority of the Warren Court,** he was a restraining force during a period of judicial ferment and rapid change. He has been characterized as being a conservative conscience to a highly active court.5

zHarlan's opinions as a Supreme Court Associate Justice are published in volumes 349 to 403, inclusive, U.S. Reports, and his opinions are tabulated in Appendix C of this dissertation as opinions of the court, concurring opinions and dissenting opinions. 3Harlan's grandfather, the first Justice Harlan, frequently disagreed with his majority brethern on the Supreme Court. He is often referred to as the "Great Dis­ senter" and the only Justice who dissented in the landmark case of Plessy v. Ferguson, 163 U.S. 537, 552 (1896), which established the "separate but equal" doctrine in regard to public schools and was not overruled until Brown v. Board of Education, 347 U.S. 483 (1954). ''The Warren Court appellation is used here, and throughout this dissertation, to denote the U.S. Supreme Court during the period of Chief Justice Earl Warren's tenure, 1953-1969. Warren's leadership of the Court in a libertarian, activistic approach to public law and personal rights earned him a rating of par excellence as Chief Justice--second in greatness only to John Marshall, Blaustein and Mersky, op.cit., n. 1, p. 1. 5Norman Dorsen, "The Second Mr. Justice Harlan: A Constitutional Conservative," New York University Law Review, 44 (April, 1969), 249-71. 3 Harlan's restraintist role became especially apparent during the years following the retirement from the Court in 1962 of Associate Justice Felix Frankfurter, with whom he shared many of his judicial convictions. Upon naming Harlan for appointment to the Supreme Court as the eighty-ninth person to sit on the high bench, President Eisenhower said that his "qualifications for [the post of Justice] are of the highest. Certainly they were the highest of any I could find."6 Editorial comment in the nation's press applauded the nomination of Harlan,7 and law review writers praised his qualifications for membership on the Supreme Court.8 When the death of Associate Justice Robert H. Jackson in 1954 created a vacancy on the Supreme Court, it was reported that President Eisenhower said he would nomin­ ate a member of the judiciary for the position.9 This inten­ tion was in response to criticism at the time from the legal establishment of appointments to the high bench of persons

6New York Times, Feb. 3, 1955, p. 12, col. 5. 7E.g., Editorials, New York Times, Feb. 3, 1955, p. 22, col. 2; March 10, 1955, p. 26, col. 2. 8Arthur Ballantine, "John M. Harlan for the Supreme Court," Iowa Law Review, 40 (Spring, 1955), 391-99; Edward L. Friedman, Jr., "Mr. Justice Harlan," Notre Dame Lawyer, 30 (May, 1955), 349-59; W.N. Seymour, "John Marshall Harlan," New York Law Forum, 1 (March, 1955), 1-10. 9New York Times, Nov. 14, 1954, Sec. 4, p. 2, col. 6. 4 with no prior judicial experience. Since Jackson was from New York, there was further speculation that a New York Republican would be named, thus fulfilling President Eisen­ hower's desire to restore political balance to the Court. John Foster Dulles, Thomas E. Dewey, Herbert Brownell, Judge Harold P. Medina and John J. McCloy were regarded as serious candidates. Appellate Judges John J. Parker and Orrie L. Phillips were mentioned, as was New Jersey Supreme Court Chief Justice Arthur T. Vanderbilt.

History demonstrates that prior service as a judge has not been the sine qua non for judicial greatness as a Supreme Court Justice. Some of the most distinguished mem­ bers of the Supreme Court--Marshall, Taney, Hughes, Brandeis, Frankfurter, Warren--had no judicial experience prior to their nomination.10 Others notably distinguished--Taft, Holmes, Cardozo, Brennan--came to the highest court after substantial service in the Federal or state courts.11 At the failure end of the rating scale for Supreme Court Jus­ tices, the Blaustein and Mersky study, cited above, lists four of the eight failures as Justices with prior judicial experience.

1"All of these Justices are rated as "great" or "near great" in the study referred to in n. 1, p. 1. 1LIbid. 5 At the time President Eisenhower submitted Harlan's name to the Senate on November 9, 1954, he had been a judge of the U.S. Court of Appeals for the Second Circuit since the preceding March.12 Although Harlan's judicial experience prior to his nomination to the Supreme Court was limited to a few months, this service was preceded by a distinguished legal career characterized by a dedication to public service. More salient to his obtaining the nomination were his cre­ dentials as a New York Republican with strong ties to the legal establishment there.

Born in Chicago in 1899, Harlan was graduated from Princeton University in 1920 with high honors and attended Oxford University as a Rhodes Scholar obtaining a Master of Arts degree in 1923. This was followed by a law degree from New York Law School in 1924 and admission to the New York Bar the same year at which time he joined the prestigious Manhattan law firm of Root, Clark, Buckner and Ballantine and was taken under the wing of Emory Buckner, senior partner of the firm. This association involved a heavy civil and

12See Appendix B for the citations of those opinions written by Harlan while a judge of the U.S. Court of Appeals, Second Circuit. He participated in only eight-five cases and twenty-six of these were disposed of in per curiam opin­ ions. He dissented but twice and wrote twenty-three of the fifty-nine remaining opinions. For brief surveys and appraisals of these opinions see, op.cit., no. 8, p. 3, Ballantine, "Harlan," pp. 397-98: Friedman, "Harlan," pp. 357- 58: Seymour, "Harlan,"" pp. 8-10. 6 criminal trial practice that lasted for 30 years with time out to serve episodically as an Assistant United States Attorney, Special Prosecutor for the State of New York, Colonel in the Eighth Air Force in England during World War II as head of the Operations Analysis Section, and Chief Counsel to the New York State Crime Commission. After his service in World War II, Harlan came back to New York and resumed his law practice which consisted mainly of representing some of the great financial interests of the day. His most important cases involved anti-trust laws. He was defense lawyer when the government sought to separate General Motors and the Du Pont Company. He repre­ sented the American Optical Company in a monopoly case, and he helped to reverse a lower court injunction in an anti­ trust case against the diamond industry. Harlan's confirmation for the Supreme Court was delayed in the Judiciary Committee of the U.S. Senate for several months due largely to what was reported to be a desire on the part of some Senators to postpone as long as possible implementation of the momentous case of Brown v. Board of Education13 decided in May, 1954, outlawing segrega­ tion in the public schools. It was understood that this decision, which has taken its place in the forefront of the

13347 U.S. 483 (1954). 7 pantheon of historic high-bench decisions, would not be carried forward until the Supreme Court had its full comple­ ment of nine members. Because of this controversy the Judiciary Committee did not act on the Harlan nomination during the special session of the Senate at the end of 1954, necessitating a resubmission of the nomination by President Eisenhower on January 10, 1955. The first hearing was scheduled for January 23 but was put off when some members of the committee requested a delay. The President publicly scored the Judiciary Committee for its footdragging tactics .ll* Hearings were not held until February 23, two weeks before the final vote of the committee. After approval of the nom­ ination by the committee,15 Harlan was confirmed on March 16, 1955, and took his seat on March 28, 1955. The vote in the Senate was 71 to 11, with nine Democrats from the deep South, joined by two Republicans, Langer of North Dakota and Welker of Idaho, voting against confirmation.16

After a decade on the Court, some of Harlan's qual­ ities and his contributions were summarized by Professor John

1 ''New York Times, February 3, 1955, p. 14, col. 6. 15U.S., Congress, Senate, Committee on the Judiciary, Nomination of John Marshall Harlan, Hearings Before the Com­ mittee on the Judiciary, Senate, 84 th Cong., 1st sess. , 1955. Those heard in opposition to Harlan's nomination contended that he was "ultra liberal," hostile to the South and an exponent of world federalism, charges not borne out by his judicial record as shown in this study. 16101 Cong. Rec. 2560 (daily ed. March 16, 1955). P. Frank in his study of the Warren Court: "John Harlan stands high with his colleagues. He deserves to. He has character beyond reproach, workmanship hard to equal and a gift for turning a good sentence. . . . Whether he agrees with his fellow Justices or not, Harlan achieves better per­ formance for them all by his insistent probing for a true base of decision."17 Professor Henry J. Abraham, in his recently published book about appointments to the Supreme Court and the Justices' subsequent performances, gives Justice Harlan high marks. At one point in his study, Abraham describes Harlan and Jus­ tice Hugo Lafayette Black, both of whom resigned in 1971 because of illness, as "the two most influential figures then on the highest bench."18 Elsewhere in his valuable work on the political history of Supreme Court appointments, Abraham, refers to Harlan as "a truly distinguished jurist,"19 and in a more expanded appraisal, Harlan is described in the following terms:

. . . his lucid, precedent-invoking opinions, which explained and exhorted his philosophy of the judicial role in the governmental process, earned him wide recog­ nition as an intellectual leader of the Court. . . .

17John P. Frank (photographs by Yousuf Karsh), The Warren Court, (New York: Macmillan, 1964), p. 112. 18Henry J. Abraham, Justices and Presidents, A Pol­ itical History of Appointments to the Supreme Court. (New York: Oxford University Press, 1974) , p. 9. 19Ibid., p. 234. 9 [Harlan] was accorded the well-earned rank of 'near great' [See supra, n. 1, p. 1] for consistently and often persuasively, resisting the use of the judicial function as the innovator and prescriber of social and political reform. He never tired of exhorting his colleagues as well as his fellow citizens that the only viable role for the Court is a limited one; that it should stay out of the 'political thicket' at all costs; that it should eschew the dismantling of federalism. . . . Yet while Harlan's philosophy of judicial restraint caused him often to disagree with the majority of the activist Warren Court, notably on issues such as reapportionment- redistricting, criminal justice, and the range of Con­ gressional activity over state elections, he would not stand for governmental short cuts in the name of law and order. Thus practices such as wiretapping and eaves­ dropping, illegal invasions of privacy, incursions on freedom of expression and racial segregation met his determined opposition.20

As this study will show, many of Harlan's opinions as a Supreme Court Justice were written in cases of major importance involving complex, difficult, and often novel, questions of substantive and procedural law, requiring exten­ sive study of the applicability and effect of provisions of the Constitution, of the language of federal and state statutes and of prior decisions of the Supreme Court and other courts. Harlan's opinions are also noteworthy for the clear presentation of the facts of each case and the careful formulation of the issues before the court. His opinions are regarded by the judiciary and bar as models of legal analysis and craftsmanship, even by those who do not always agree with the conclusions reached in such opinions.

20Ibid., p. 243. 10 Professor Norman Dorsen in an essay about Harlan, under whom he served as a law clerk, states that "he has produced opin­ ions that for consistent professional competence have not been exceeded ... by any Supreme Court Justice since Brandeis."21 Ancillary to the primary purpose of this study as stated above is an exposition of Harlan's passion for facts, his respect for precedent, his avoidance of idiosyncrasy, and his struggle for a rational, analytic, objective jurispru­ dence as elucidated in his opinions. In this vein, the late Professor Alexander M. Bickel has written that "Our system confides to the Supreme Court great power, greater than that of any other judicial body in the world. It is the power to render reasoned, principled decisions. There--in the process by which these decisions are reached, not in the results, however, good, humane or politic--is the justification of a power that needs justification in a democratic society, and there also is its limit."22 According to Bickel, rather than being motivated by the egalitarianism of the "Heavenly City of the Twentieth-Century Justices," the Court should be ". . .

2 Gorman Dorsen, "John Marshall Harlan," in The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions, ed. by Leon Friedman and Fred L. Israel (New York: Chelsea, 1969), p. 2803. 22Alexander M. Bickel, "Is the Warren Court Too 'Political'?" The New York Times Magazine (September 25, 1969), 30-31, 130-32, 32. 11 the place for principled judgment, disciplined by the method of reason familiar to the discourse of moral philosophy."23 Much like Harlan, Bickel believed cases should be decided not by a result-orientation, but by "... coherent, analytically warranted, principled declaration of general ,,24 norms." The casual reader of Justice Harlan's opinions is prone to view him as a tireless dissenter, a reflex conserva­ tive, bound and determined to speak out against Warren Court activism, often couching his dissents in statements of petty procedural reasons, which thinly disguised his antipathy to overdue reforms in American justice. It is expected that this study will show that contrary to this stereotype, Harlan is to be more accurately viewed as a foremost practitioner of the Wechslerian Ideal--"that the main constituent of the judicial process is precisely that it must be genuinely prin­ cipled . . . reaching judgment on analysis and reasons quite transcending the immediate result that is achieved."25

23Alexander M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970) , p. 87. 21»Ibid., p. 96. 25Herbert Wechsler, "Toward Neutral Principles of Constitutional Law, Harvard Law Review, 73 (November, 1959) , 1-35, 15. Considered among the most cogent attacks on Wechsler's position are Arthur S. Miller and Ronald F. Howell, "The Myth of Neutrality in Constitutional Adjudica­ tion," University of Chicago Law Review, 27 (Summer, 1960), 661-95, and Louis H. Pollak, "Racial Discrimination and 12 Analysis will reveal that the cornerstone of Harlan's constitutional philosophy is his profound belief in the prin­ ciples of federalism and his view that the chief judicial instrument for the promotion of federalism is self-restraint. The tenets of this stream of judicial thought, with intellec­ tual antecedent's in Justices Holmes, Brandeis, Jackson and Frankfurter, are enriched by the opinions of Harlan as will be shown in this study.26 His opinions stressed "the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedom."27 In one of his infrequent public addresses, he explained, Our federal system, though born of necessity of achieving union, has proved to be a bulwark of freedom as well. We are accustomed to speak of the Bill of Rights and the Fourteenth Amendment as the principal guarantees of personal liberty. Yet it would surely be shallow not to recognize that the structure of our political system accounts no less for the free society we have. Indeed, it was upon the structure of government that the founders primarily focused in writing the Constitution. Out of bitter experience they were suspicious of every form of all- powerful central authority and they sought to assure that such a government would never exist in this country by structuring the federal establishment so as to diffuse

Judicial Integrity: A Reply to Professor Wechsler," Univer­ sity of Pennsylvania Law Review, 108 (November, 1959), 1-34. 26Harlan was both the intellectual inheritor and formal successor of Associate Justice Robert H. Jackson on the Supreme Court. 27See, e.g. Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring). 13 power between the executive, legislative, and judicial branches. The diffusion of power between federal and state authority serves the same ends and takes on added significance as the size of the federal bureaucracy con­ tinues to grow.28 Federalism is related to the whole problem of the concentration, diffusion and, most particularly, the sharing of power in political and social systems. Federal principles grow out of the idea that free men can enter into lasting yet limited political arrangements to achieve common ends and protect certain rights while preserving their respective integrities. This study will demonstrate that federalism is both a form of politics and a means of ordering political communication, a structural consideration and a way to con­ duct the business of government. Federalism is defined in a number of ways. There are those who emphasize its legal quality. Hence a typical simplistic textbook definition runs something as follows: "A federal system is one in which the powers of government are divided up, some being allocated to a national govern­ ment and some to each of the smaller political units which we call states."29 Others argue that the essential nature of federalism is to be looked for not in the shadings of legal

28John M. Harlan, "Thoughts at a Dedication: Keeping the Judicial Function in Balance," American Bar Association Journal, 49 (October, 1963), 943-45. 29Thomas H. Eliot, Governing America: The Politics of a Free Poeple (New York: Dodd, Mead, 1961), p. 49. 14 and constitutional terminology but in the forces--economic, social, political, cultural--that have made the outward forms of federalism necessary. Taking this view, federalism has been defined as "a device by which the federal qualities of a society are articulated and protected. . . . [It is] an attempt to solve a certain kind of problem of political organization."30 Professor Daniel Elazar, an astute observer of American federalism, defines federalism "as the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both."31 In its most practical manifestations, the workings of federalism are reflected in the processes of intergovernmental relations and negotiated coordination among the national, state and local governments and the interests they represent. Elazar sees federalism as the central characteristic of the American political system, its principles animating the greater part of the nation's political process.

But whatever the approach, the fact remains that the United States is constitutionally organized in a dual system

30William S. Livingston, "A Note on the Nature of Federalism," Political Science Quarterly, LXVII, 1 (March, 1952), 83-4. 3 Daniel J. Elazar, American Federalism (New York: Crowell, 1972), p. 2. 15 in which governmental powers are distributed, sometimes over- lappingly, between national and state authorities, that the distribution of such powers agreed upon in the Constitution has not averted conflict, and that the perpetual problem of defining the precise scope of national and state power has been left largely to the Supreme Court. In this sense the .Supreme Court is the umpire of the American federal system. Few types of cases have given the high Court more difficulty in recent years than those concerned with umpiring the inter­ play of federal and state authority. And few have been of greater importance to the working of our federal system. For at a time when few, if any, powers are denied-by the Court to the national government, the extent to which national authority is deemed compatible with the possession of similar state power will be cardinal in determining what powers the states may legitimately exercise. The role of the Supreme Court becomes one of maintaining a working feder­ alism. Therein lies its task of mediation between large principles and particular problems, the task of interposing principles more tentative, experimental and pragmatic.

Justice Harlan saw federalism as constitutionally mandated. "It is too often forgotten that the American fed­ eral system is itself constitutionally ordained . . .," he remarked.32 In one of Harlan's dissents from the Supreme

32Pointer v. Texas, 380 U.S. 400, 409 (1965) (Harlan, J., concurring). 16 Court's involvement in the political process of a state, he asserted: "Constitutionally principled adjudication, high in the process of which is due recognition of the just demands of federalism, leaves ample room for the protection of individual rights."33 He urged restraint by the Court in meddling with state obscenity laws, law enforcement practices, legislative apportionments, voters rights and a host of other problems. Those who disagree with Harlan's values believe that fundamental individual liberties and the health of the democratic process are jeopardized more by the Court not interfering and thus giving the states free rein to violate individual constitutional rights. 31*

At the heart of Harlan's notions about federalism and judicial self-restraint was the belief that judicial intervention in many of the nation's problems is inherently destructive. For many reasons expounded at length in his opinions, and stated briefly here, he regarded the legisla­ tive bodies as preferable agents for American reform. Judi­ cial decrees confuse and disrupt the established practices of the states and Congress and stymie their efforts at reform. Justices lack empirical evidence on which to base change.

33Carrington v. Rash, 380 U.S. 89, 99 (Harlan, J., dissentingj~] 31*See, e.g. Arthur J. Goldberg, Equal Justice, The Warren Era of the Supreme Court (Evanston^ 111.: Northwestern University Press, 1971). 17 Judicial fiat is too rigid and permanent, not easily undone. It saps the political process, undermines the vitality of popular participation that accompanies legislative change. It is anti-majoritarian and leads to popular resentment and disrespect for the Court as an institution. It accomplishes little more than enthronement of the Justices' personal views. These strident pleas for judicial self-restraint are force­ fully enlarged upon in Harlan's classic dissents in Reynolds v. Sims,35 Wesberry v. Sanders,36 and Harper v. Virginia Board of Elections,3 7 where he asserts his belief that the franchise is essentially a matter of state concern. Harlan's dissent­ ing opinion in the Reynolds case also includes a statement of his firmly held belief that it is a mistake to assume that it is within the functions of the Court to provide a remedy for every persistent major problem of society for which a remedy has not otherwise been provided. Thus, he says:

Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional principle, and that this Court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The

35377 U.S. 533, 589 (1964) (Harlan, J., dissenting). 36376 U.S. 1, 20 (1964) (Harland, J., dissenting). 37383 U.S. 663, 680 (1966) (Harlan, J., dissenting). 18 Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of govern­ mental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. The behavior of the Supreme Court Justices with respect to the propriety of the Court's exercise of its legal power may be termed judicial activism and judicial restraint. This dichotomy in judicial behavior will be a recurring theme throughout this study. An activist judge is willing to exercise supervisory power over the decision making of lower courts and other branches and levels of government and to expand the sphere of Supreme Court involvement in the polit­ ical process. At least indirectly, nearly every case pre­ sented to the Court for decision concerns the question of activism versus restraint, because in most cases the Court must decide whether to uphold or reverse the decision of the governmental body which previously handled the issue.

In some periods the Court has followed an activist policy, in which it has been more likely to accept respon­ sibility for participating in the development of constitu­ tional guides for public policy than to decline to find reasons for limiting such participation. An activist atti­ tude is hospitable to the creation of new judicial remedies

377 U.S. 533, 624 (1964) (Harlan, J., dissenting). 19 or doctrines necessary to achieve goals which the Court con­ siders to be constitutionally justified, but which seem out of reach by other avenues in the polity. An activist Court can be, in political terms, either a conservative or a liberal Court. Prior to 1937, activist Courts had been almost exclusively dominated by conservative purposes and ideology. For example, the Court which declared portions of the New Deal legislation unconstitutional in the 1930s was a conservative, activist Court. But beginning in 1937 the Court as re-oriented by President Franklin D. Roosevelt's appointments, promptly abandoned any activist resistance to policies of the executive or Congress. However, it later turned to another form of activism, protection of civil liberties against infringement by government, thus demonstrating that judicial activism could be motivated by libertarian concerns for enforcement of the Bill of Rights as well as conservative concern for the protection of property rights.

The Warren Court conceptualized law as a living pro­ cess responsive to human needs and a creative force in American life. The underlying assumption behind the Court's judicial activism was that the individual and his freedom were basic and judicial review, undemocratic though it may appear, could actually implement as well as limit popular government. In championing the Bill of Rights and applying it to the states through the Fourteenth Amendment, the 20 argument goes that the Warren Court defended free government by keeping open the political channels through which major­ ities could be changed and minorities protected. Professor Alpheus T. Mason summed up the ethos of the Warren Court as requiring judicial action when the political checks and balances were ineffective or unavailable.39 Just as the Supreme Court of a particular period does not in all cases fall within the activist or restraintist mold, nor can Justice Harlan be so rigidly classified, as this study will show. During his first two years on the Court he often joined the Court's libertarian wing in national security cases--even writing the Court's opinion in Yates v. United States,1>0 which backed the right to advocate the theoretical overthrow of the government by force and violence as opposed to advocating direct action. But thereafter, as this study will demonstrate, Harlan left that wing to take his place with the restraintist Justices on the Court more often than not. Judicial self-restraint is defined by Professor Harold J. Spaeth in the following terms: Judicial restraint posits that judges, at least those serving lifetime appointments, are remote from popular desires and sentiments. Consequently, they should defer

39Alpheus T. Mason "Understanding the Warren Court: Judicial Self-Restraint and Judicial Duty," Political Science Quarterly, 81 (December, 1966), 523-63. "°354 U.S. 298 (1957). 21 to those decision makers who are dependent upon popular support for their continuation in office. In the con­ text of Supreme Court decision making, this translates to mean that judges should defer to administrative agencies and state decision makers. . . . Deference should also be accorded the states by reason of the federal character of the governmental system and also because of the belief that many problems are local in character or that they are best solved at the state and local level.hl The classic constitutional model of separation of powers, checks and balances, and federalism posits that tyranny is prevented by keeping one branch or level of govern­ ment from acquiring inordinate power over the other branches or levels. Self-restraint comes into play when one branch or level of government becomes concerned with the extent of its own power and voluntarily eschews the enlargement of its power. The self-restraintist school of judicial thought to which Justice Harlan belonged argues from the basic model that the Supreme Court has gone too far afield and should apply the constitutional limits of its role to itself.42

"^Harold J. Spaeth, An Introduction to Supreme Court Decision Making (San Francisco: Chandler Publishing Co., 1972), p. 57. Also, see John P. Roche, "Judicial Self- Restraint," American Political Science Review, 49 (September, 1955), 762-72; Alexander M. Bickel, "The Passive Virtues, The Supreme Court, 1960 Term," Harvard Law Review, 75 (November, 1961), 40-79. "*2Learned Hand, The Bill of Rights (Cambridge, Mass.: Harvard University Press^ 1958), Chap. 1; Wallace Mendelson, ed., The Supreme Court: Law and Discretion (Indianapolis, Ind.: Bobbs-Merrill, 1967); John M. Harlan, "The Bill of Rights and the Constitution," American Bar Association Journal, 50 (October, 1964), 918-20. 22 Chief Justice Stone summed up the concept of judicial self- restraint in the following terms: . . . while unconstitutional exercise of power by the executive and legislative branches of the government is- subject to judicial restraint, the only check upon our exercise of power is our own sense of self- restraint. **3 Other Supreme Court Justices of the restraintist persuasion have put their positions in more pungent prose. "We do not sit," said Justice Frankfurter, "like kadi under a tree, dis­ pensing justice according to considerations of individual expediency. "'* "* Justice Cardozo wrote that a "jurist is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life."1*5

"3U.S. v. Butler, 297 U.S. 1, 78-79 (1936). Justice Stone, in an opinion joined in by Justices Brandeis and Car­ dozo, dissented from the majority of the Supreme Court which declared unconstitutional certain provisions of the Agricul­ tural Adjustment Act of 1933, one of a series of New Deal economic recovery measures enacted by the Congress. "''Terminello v. City of Chicago, 337 U.S. 1, 11 (1949) (Frankfurter, J., dissenting). 45Benjamin N. Cardozo, The Nature of the Judicial Pro cess (New Haven: Yale University Press, 1921), p. 141. 23 Today, as has been the case for decades, the debate about the role of the Supreme Court in the American system of government, and this dissertation, center on whether the Court in its actions should be active or restrained. As Justice Harlan points out in many of his opinions, the ques­ tion goes beyond the desirability of those political, econ­ omic and social changes wrought by the Court. It concerns the very definition of the constitutional system, the rela­ tion of the Court to it, and whether the Court is a proper agent for significant change in the American polity. The arguments in the dispute between the activists and restraint- ists will not be developed at length in this introduction, rather they will be presented later in the context of Harlan's opinions as they are discussed in the chapters that follow. Suffice to say at the outset, it must not be supposed that activism and self-restraint are two mutually exclusive alter­ natives. On the contrary - they are the two poles of a wide purview of possible judicial behavior. Even the most devout adherents to restraint, including Harlan, have not been totally committed to self-restraint. The exposition of Harlan's opinions in this study will further reveal some of the exceptions he made to his general position and why he felt compelled to do so.

Certain separately identifiable themes on federalism and self-restraint are to be found in Justice Harlan's 24 opinions and it is believed that they characterize his judicial ideas and major contributions as a Supreme Court Justice. These include: (1) a belief in constitutionally ordained separation of pollers and federalism with their con­ comitant diffusion of power in the American polity, and in the instrument of judicial self-restraint as a necessary tool for their realization; (2) a disdain for the cosmic view of the place of the judiciary in the American political system; (3) a sensitivity to the importance of protecting the funda­ mental freedoms of the individual from impairment by any governmental body, state or federal; (4) the view that the rights and procedures guaranteed by the Bill of Rights and the 14th Amendment must be considered in their historical perspective and in the light of the constitutional doctrine of federalism and separation of powers; (5) a federalism that not only tolerates but encourages differences between federal and state protection of individual rights so long as the differing policies are founded in reason and do not run afoul of the dictates of fundamental fairness; (6) a devotion to the restraintist intellectual lineage composed of Holmes, Brandeis, Jackson and Frankfurter; (7) an aversion to the injection of private views and idiosyncrasies into the pro­ cess of judging, requiring the judge at all times to be strictly impersonal and impartial; (8) an adherence to the rational standard as an objective and reliable criterion in the adjudication of cases, eschewing subjective impulses and 25 result-oriented decision making; (9) a distrust of the effectiveness of vindicating rights through the coercion of adjudicated law instead of the democratic processes in society, with an emphasis on legislative expression and experimentation; and (10) an insistence on the common-law tradition of adherence to precedent as contributing stability and predictability to our law, but a willingness to overrule an earlier decision where justice requires. These themes will be illuminated in the discussion of selected opinions by Harlan that follows. It remains to be pointed out that this work does not purport to be a biography. The occasional biographical aspects brought out in this introduction and in the course of the discussion that follows are included to assist in the understanding of Harlan's point of view on the issues at hand. Chapter I

FEDERALISM, REPRESENTATION AND POLITICAL EQUALITY

Equality has been an underlying concept of the American system of government since it was proclaimed as a self-evident truth in the Declaration of Independence. This is true despite the failure of the framers of the United States Constitution to repeat the unqualified assertion of the Declaration in their instrument. Nowhere in the docu­ ment drafted in 1787 was there any guaranty of equality--or even any mention of the concept. Whatever may have been the intention of the Founding Fathers, the concept of equality as a basic tenet of American government became at least inchoate when they established what some of them, including James Madison, were already calling a "representative democracy. "lt6 Democratic commun­ ities, concluded Tocqueville after his early nineteenth century observation of the American system, may "have a natural taste for freedom. . . . But for equality their

46Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1961), pp. 77-84, passim.

26 27 passion is ardent, insatiable, incessant, invincible. "'*7 Equality became a written constitutional principle with the ratification of the Fourteenth Amendment, **8 but the rights flowing from this principle did not come in for vigorous enforcement by the courts until the second half of the twentieth century. It was during the era of the Warren Court that adver­ saries in the struggle for equality brought many of their cases to the high bench.1*9 Earl Warren took his place as Chief Justice of the Supreme Court in 1953 with no precon­ ceived vision or grand design, no strongly held or elaborately developed theory of society or even the law itself. However, the decisions of the Court during his tenure wrought funda­ mental changes in the political, social and economic fabric of American society. So deep were these changes that both Warren and the "activist" court that bore his name inevitably became national issues. Eight months after Warren arrived on the bench, the Court handed down its historic decision in

lf7Alexis de Tocqueville, Democracy in America, ed. by Phillips Bradley, II (New York: Alfred A. Knopf, 1945), p. 102. "8U.S. Constitution, Amendment XIV, Section 1. "No state shall-! '. . deny to any person within its jurisdiction the equal protection of the laws." "*9The acclaim and oppobrium for the Warren Court rests largely on five areas of its work: the school desegre­ gation cases, the reapportionment cases, the criminal pro­ cedure cases, the church-state cases and the obscenity cases. 28 Brown v. Board of Education,50 which overturned rulings going back to 189651 and required an end to de jure segrega­ tion in the nation's schools. Equality has both intrinsic and instrumental value. Intrinsically, equality of treatment is valued because dis­ crimination tends to devalue man's humanity, to violate his integrity as a person. To attach infirmities to a man because of characteristics like race, religion, etc.--those very traits which make him up as an individual-- is to attack his humanness. This intrinsic value of equality is exempli­ fied in the desegregation decisions of the Supreme Court, notably Brown v. Board of Education.52 Instrumentally, equality may be viewed as an integral part of a democratic political system. If democracy is defined, at least in part, as a system in which preferences of the majority of citizens determine the collective decisions of a polity, then restrictions or limitations upon the ability of some citizens to participate in the system--which give more weight to the preferences of others — reduce the

50347 U.S. 483 (1954). 51 It was in this year that Justice Harlan's grand­ father and namesake, the first John Marshall Harlan, wrote his most famous dissent as a Supreme Court Justice. Plessy v. Ferguson, 163 U.S. 537, 552 (1896); the majority's "separ­ ate but equal" legal doctrine standing until finally over­ ruled in Brown v. Board of Education, Ibid. 52347 U.S. 483 (1954). 29 degree of democracy of a system.53 The central focus in this chapter is on Supreme Court removal of restrictions or limitations on equal voter access to, and participation in, the electoral process in a federalistically structured polity. It will be seen in this chapter that the main thrust of the Supreme Court's majority holdings in the reapportionment and voting rights cases is that certain political inequality is constitutionally imper­ missible under, mainly, the equal protection clause of the Fourteenth Amendment. Gleaned from the Supreme Court opin­ ions discussed in this chapter will be contrasting models of American democracy as envisaged by Justice Harlan and those justices on the Court with whom he often disagreed. Justice Harlan wrote some of his strongest dissents to the Supreme Court's majority opinions in the reapportion­ ment and franchise cases discussed in this chapter. Harlan often, and vigorously, disagreed with the willingness of the majority to enter what Justice Frankfurter called the "polit­ ical thicket."5'1 In doing so, Harlan labeled the Court's

53For a discussion of the theory stressing this view, see Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956) . 5''Justice Frankfurter, with whom his colleague Justice Harlan was philosophically attuned, asserted that "It is hostile to a democratic system to involve the judiciary in the politics of the people." The courts "ought not to enter this political thicket." Colegrove v. Green, 328 U.S. 549, 553-54, 556 (1946). 30 rulings "as nothing less than an exercise of the amending power."55 Harlan's view of American democracy is apparent here: the Constitution with its amendments is the last expression by the people of a basic law, and until the people make a new expression in the manner specified in the Constitution, it must remain the fundamental law of the land. A central tenet of Harlan's restraintist judicial philosophy is found in the reapportionment cases. For example, in Reynolds v. Sims, he asserts that "the vitality of our polit­ ical system, on which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform."56 Harlan believed that restraint limits the scope of judicial decisions to matters that are amenable to judi­ cial determination. He thought it better to let some prob­ lems go unsolved than to place the ultimate decision in the hands of the Supreme Court whose members are not responsible to the will of the electorate and who, perhaps unconsciously, represent the privileged group from which they are drawn.57

"Reynolds v. Sims, 377 U.S. 533, 591 (1964). 56Ibid., p. 624. S7Professor Norman Dorsen, a former law clerk to Justice Harlan, wrote in a biographical sketch of Harlan that "If there were any lack at all in (Harlan's) preparation (for Supreme Court service), it was probably the absence of direct exposure to the special problems of the less privileged sec­ tor of the community." Dorsen, op.cit., no. 4, at p. 252. 31 He had a profound appreciation of the democratic process and the ability of the people and their representatives to make choices. He could see no justification for upsetting the delicate balance achieved by legislation in the name of greater justice or equality decreed by an institution that is intentionally non-representative.58 Justice Harlan appears to have accepted the position of Professor James Bradley Thayer, a progenitor of the restraintist school, that fre­ quent resort to judicial review is indicative of distrust or lack of confidence in the political branches of government. Arguments in favor of judicial review are based, in part, on the assumption that the elected branches of govern­ ment cannot be trusted to refrain from abuse of the powers that have been given them. Professor Wallace Mendelson, in a reference to the Supreme Court's role, has suggested that commitment to democracy in America is limited by a somewhat inarticulate distrust of it, as is indicated by the

concentration in a single agency--significantly, that farthest removed from the people--of power to override all other elements of government, whether at the national, state, or local level. Neither Congress nor the Presi­ dent, no administrative agency, no governor, no state court or legislature ... is immune from the centralized power of judicial review.59

58See John M. Harlan, "Thoughts at a Dedication: Keeping the Judicial Function in Balance," American Bar Association Journal, 49 (October, 1963), 943. 59Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court (Chicago-! The University of Chicago Press, 1961), p. 126. 32 Harlan's conception of restraint suggests that the relative finality of judicial decisions in constitutional cases creates an obligation to limit the use of the power of judicial review. While the courts may restrain the power of others, there is no institution which similarly guards the boundaries of the courts. He regarded judicial restraint as one example of the great self-discipline that a democratic way of life demands of its citizens. Justice Harlan's confidence in the autonomy and strength of each unit of government in a federal polity brings to mind another crucial theme of his judicial universe as explicated in this study--a harmonious federalism, reminis­ cent of Professor Paul Freund's characterization of Justice Louis Brandeis.60 Freund pointed out that Brandeis, a notable adherent to the restraintist school of judicial philosophy, would not be "seduced by the quixotic temptation to right every fancied wrong that was paraded before him,"61 and that "Brandeis was prepared to reject the claims, almost literally, of a workman, a widow, and an orphan in pursuance of what seemed to him to be a more harmonious federalism."62 Justice

60Paul Freund, The Supreme Court of the United States (Cleveland: World Publishing Company, 1961), p. 131. slIbid., p. 130. 52Ibid., p. 131. Brandeis was following implicitly the Biblical injunction addressed to judges: "Neither shalt thou countenance a poor man in his cause." Exodus, XXIII, 3. 33 Harlan echoed these sentiments of Brandeis when he dissented from the decision of the Supreme Court in Reynolds v. Sims63 which extended the one-man, one-vote principle of political equality to state legislatures. Harlan said: "This [major­ ity] view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional prin­ ciple; and that this court should 'take the lead' in promot­ ing reform when other branches of government fail to act."61* Both Brandeis and Harlan argued for judicial self-restraint as an instrument for the promotion of the federalism they saw envisaged in the Constitution. Within the Constitution they found resources for a strengthened federalism which had been imperfectly tapped. Before proceeding to a discussion of selected reap­ portionment and voting rights cases decided by the Supreme Court during the Harlan years on the Court, it will be helpful to examine the Court's historical abstinence from playing a positive role in the electoral process. This restraintist position that the Supreme Court took until the 1960s can be illuminated by a consideration of certain provisions of the United States Constitution as amended, and some of the cases decided thereunder. These abnegation pronouncements of the

63377 U.S. 533 (1964). 64Ibid., p. 624. 34 Court often were wrapped in the rubric of the political question doctrine. In his classic commentary on American democracy the nineteenth century French political observer, Tocqueville, wrote the since often quoted comment that "Scarcely any polit­ ical question arises in the United States that it is not resolved sooner or later, into a judicial question."65 One astute observation has summarized the political role of the Supreme Court in the following \\rords: It is at once a judicial and political body. It is judicial in that its usages are of a court of law. . . . It is political in that its orders extend far beyond the individuals immediately involved; it fixes conditions and sets bounds about the resort to law; it revises the pattern of the separation of powers among agencies of government; it endows with intent, discovers latent meaning and resolves conflicts between legisla­ tive acts; it invokes constitution, statute, its own decisions to hold Congress, department administrative body in its place. Even when it imposes self-denial upon itself, politically it extends the frontiers of some other agency of control. Judgments along these lines are political not legal decisions. Issues of due process, equal protection, privileges and immunities are questions of the limits of the province of government. . . .6S

In the vanguard of today's scholars who have criti­ cized the recent performance of the Supreme Court is Pro­ fessor Philip B. Kurland who observed that throughout what

65Alexis de Tocqueville, Democracy in America, ed. by Phillips Bradley, I (New York: Alfred A. Knopf, 1945), p. 280. 66Walton H. Hamilton and George 0. Braden, "The Special Competence of the SuDreme Court," Yale Law Journal, 50 (June, 1941), 1319, 1324.' 35 is commonly called the Warren Court period, during nearly all of which Justice Harlan served,67 "the Justices have wrought more fundamental changes in the political and legal structure of the United States than during any similar span of time since the Marshall Court had the unique opportunity to express itself on a tabula rasa."68 Kurland in his cri­ tical essay identifies "three dominant movements" that char­ acterize the Warren Court: (1) "the enhancement of judicial dominion,"69 (2) "the effective subordination, if not destruc­ tion, of the federal system"70 and (3) "the rise of egali- tarianism."7x Justice Harlan saw in these "movements," energized by an activist Supreme Court, a threat to the liberty which respect for the values of federalism preserves. He urged self-restraint by the Court, protesting what he saw in the reapportionment decisions, for example, as "a perva­ sive overlordship of the federal judiciary" over the "basic aspects of state political systems."72

S7Chief Justice Earl Warren served on the Supreme Court from 1953 to 1969. Associate Justice John M. Harlan was a member of the Court from 1955 until 1971. 6"Philip B. Kurland, "The Supreme Court 1963 Term, Foreword: Equal in Origin and Equal in Title to the Legis­ lative and Executive Branches of the Government," Harvard Law Review, 78 (November, 1964), 143, 144. 69Ibid., p. 144. 70Ibid. 71Ibid. 72Reynolds v. Sims, 377 U.S. 533, 589 (1964) (Harlan, J., dissenting). 36 Examined in depth in this chapter is the Supreme Court's exercise of its jurisdiction over what can be broadly termed political questions, principally as found in the reapportionment and voting rights cases of the 1960s. It is in these cases that Justice Harlan wrote some of his most trenchant dissents73 bearing upon the values of feder­ alism and judicial self-restraint and warning against what he called the Court's "adventures in the realm of political

,t7li science." It will become apparent in the discussion which fol­ lows that the Supreme Court is not a political institution in the sense of being a trafficker in party votes and electoral stratagems, but rather it is one of the principal holders of public power. Though institutionalized in our democracy, paradoxically the Court is responsible to no constituency, yet it is strategically located to slow down, accelerate or divert those great pivotal movements in American society when the weight of political power shifts from one point and plane to another. Vivid historical examples of this

73See, e.g. Baker v. Carr, 369 U.S. 186, 330 (1962) (Harlan, J., dissenting); Gray v. Sanders, 372 U.S. 368, 382 (1963) (Harlan, J., dissenting); Wesberry v. Sanders, 376 U.S. 1, 20 (1964) (Harlan, J., dissenting); Reynolds v. Sims, 377 U.S. 533, 589 (1964) (Harlan, J., dissenting); Avery v. Midland County, 390 U.S. 474, 486 (1968) (Harlan, J., dis- senting). 7"Avery v. Midland County, 390 U.S. 474, 487 (1968) (Harlan, J., dissenting). 37 catalytic political nature of the Supreme Court are illus­ trated by its decisions in Scott v. Sandford75 and Brown v. Board of Education.76 "Separated by almost a century," as Professor Alpheus Thomas Mason points out, "judicial action in both these cases was obviously in response to time and circumstance."77 Mason went on to say that "Taney's unequi­ vocal assertion [Chief Justice Taney's opinion in Dred Scott] that the Negro had no rights a white man was bound to respect crystallized the slavery issue, helping to bring on the Civil War, the Emancipation proclamation, and the revolu­ tionary Thirteenth, Fourteenth, and Fifteenth Amendments. Brown sparked the Negro revolution, stimulating Congress to pass the first civil rights legislation in almost a cen­ tury. . . . "7a Thus, the Supreme Court, as a political body, is a primary means of adapting the distribution of political power to new circumstances as they arise in the American polity. In this chapter there will be described the Court's

7560 U.S. (19 Howard) 393 (1857). 76347 U.S. 483 (1954). Although Justice Harlan was not yet on the Court when the Brown decision was rendered in 1954, his accord with it is inferred in the Court's unanimous order the following year to implement it "with all deliberate speed," which went out after he had taken his seat. Brown v. Board of Education, 349 U.S. 294, 301 (1955). 77Alpheus Thomas Mason, "Understanding the Warren Court: Judicial Self-Restraint and Judicial Duty," Political Science Quarterly, 81 (December, 1966), 523, 524-25. Ibid., p. 525. 38 increasingly expansive reading of the equal protection clause of the Fourteenth Amendment as a safeguard of political equality at all levels of the polity. Before examining the reapportionment cases in detail, and in particular Justice Harlan's federalism based dissent­ ing opinions therein, the nature of the political question doctrine needs to be examined in its broad outline. Pro­ fessor John P. Roche has written of the tautology found in attempts by courts to define a political question. . . . the definition of a political question can be expanded or contracted in accordion-like fashion to meet the exigencies of the times. A juridical definition of the term is impossible, for at root the logic that sup­ ports it is circular: political questions are matters not soluble by the judicial process; matters not soluble by the judicial process are political questions. As an early dictionary explained, violins are small cellos, and cellos are large violins.79 This circularity is found in a 1940 federal circuit court opinion where political questions were defined as "such as we have entrusted by the sovereign for decision to the so-called political departments of governments, as distin­ guished from questions which the sovereign has set to be decided by the courts."80 Justice Holmes regarded such definitions as "little more than a play upon words."81 Two

79John P. Roche, "Judicial Self-Restraint," American Political Science Review,. 49 (September, 1955), 762, 768. 80Sevilla v. Elizalde, 112 F.2 29, 32 (D.C. Cir. 1940). xNixon v. Herndon, 273 U.S. 536, 540 (1927). 39 months after its definition in Sevilla,82 the same court wrote: "It would be difficult to draw a clear line of demarcation between political and non-political questions. . . ,"83 Judges, even United States Supreme Court Justices, have not been alone in their confusion about the nature of a political question.81* For example, one respected scholar defined such questions "as those which judges choose not to decide, and a question becomes political by the judge's refusal to decide it."85 In most cases the bewilderment has resulted from an attempt to define the category as a func­ tion of political institutions--i.e. a constitutional doctrine such as separation of powers--rather than of the political process--i.e. the struggle to obtain and retain power. Another writer finally threw up his hands in despair and con­ cluded that the Supreme Court utilized the phrase political question "as a term of exclusion, rather than as one of

82112 F.2d 29 (D.C. Cir. 1940). 83Z. § F. Assets Realization Corporation v. Hull, 114 F.2 464, 468 (D.C. Cir. 1940). Both this case and the Sevilla case, supra, are cited by John P. Frank in "Political Questions," Supreme Court and Supreme Law, ed. Edmund Cohn (Bloomington: Indiana University Press, 1954), p. 36. 8"*Cf., Maurice Finkelstein, "Judicial Self- Limitation," Harvard Law Review, 37 (January, 1924), 338. 85Jack W. Peltason, Federal Courts in the Political Process (New York: Random House, 1955), p. HT 40 positive definition."86 Using this definition as a point of departure, an illuminating attack on the problem is one that examines the kinds of questions courts have declined to answer by reason of the fact that they were deemed to be political in nature. A case by case analysis reveals that there are four general categories of political questions. First, courts have abstained from exercising their jurisdiction under circumstances which called for a prompt and final pronouncement of a single, uniform policy. There are questions, as Justice Brennan suggested in Baker v. Carr, that "uniquely demand single-voiced statement of the Govern­ ment's views."87 Justice Harlan saw such extreme uniformity as contrary to the constitutional demands of federalism. The best examples within the first category would come from the field of foreign relations and would include questions directed at the recognition of foreign governments,88 the determination of when hostilities began and ceased,89 and

86Note, "Political Questions as Distinguished from Judicial Questions," Notre Dame Lawyer, 24 (Winter, 1949), 231. 87369 U.S. 186, 211 (1962). 88See United States v. Pink, 315 U.S. 203 (1924). "See Commercial Trust Co. v. Miller, 262 U.S. 51, 57 (1923). 41 similar problems.90 Harlan would have no difficulty with the conclusions reached in the cited cases. Some questions require uniformity, others present a compelling need for finality of judgment. Professor John P. Frank has suggested, for example, that "it would be calamitous to have the validity of constitutional amendments brought into serious question long after their promulgation."91

A second category of questions has involved problems clearly committed for solution to one of the other branches of government. Congress, for example, is the sole judge of the qualifications of its own members:92 the executive's duty to see to it that laws are faithfully enforced cannot be brought under legal compulsion;93 and interstate rendition cannot be judicially enforced.9"* As Justice Frankfurter noted in Colegrove v. Green: "The Constitution has left the performance of many duties in our governmental scheme to

9°In the Sevilla case, supra, n. 17, pp. 33-34, the court compiled a list of such questions which included the recognition of foreign governments, conditions of peace and war, the beginning and end of war, whether aliens should be excluded or deported, government title to or jurisdiction over territory, enforcement of treaties, and constitutional powers of representatives of foreign nations. 91Frank, op.cit., no. 20, p. 38. 92Dennis v. United States, 171 F.2 986 (D.C. Cir. 1948). "Mississippi v. Johnson, 70 U.S. (4 Wall.) 475 (1867). 9"Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861). 42 depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights."95 In this second cate­ gory of political questions, the limitation on judicial review is a function of the separation of powers doctrine.96 In the very decision establishing the right of judicial review, Chief Justice Marshall identified the problem in the following terms: The province of the court is solely to decide on the rights of individuals, not to inquire how the executive officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.97 The fact, however, that the enforcement of a political right is in question does not necessarily mean that a polit­ ical question exists.98 The term "political," in this

95328 U.S. 549, 556 (1946). 96See generally, Alexander M. Bickel, The Least Dan­ gerous Branch (Indianapolis, Ind.: Bobbs-Merrill, 1962); Alexander M. Bickel, "Foreword: The Passive Virtues, The Supreme Court, 1960 Term," Harvard Law Review, 75 (November, 1961), 40; Oliver P. Field, "The Doctrine of Political Ques­ tions in the Federal Courts," Minnesota Law Review, 8 (May, 1924), 485; Maurice Finklestein, "Judicial Self-Limitation," Harvard Law Review, 39 (December, 1925), 221; Kenneth S. Tollett, "Political Questions and the Law," University of Detroit Law Journal, 42 (April, 1965), 439; Herbert Wechsler, op.cit., n. 25; Melville Fuller Weston, "Political Questions," Harvard Law Review, 38 (January, 1925), 296.

97Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 98"The doctrine ... is one of 'political questions,' not one of 'political cases.'" Baker v. Carr, 369 U.S. 186, 217 (1962). 43 context, means that the questions involved are to be finally decided by the legislature or the executive, not the judic­ iary. When a political question is identified and held to be beyond the judicial pale, the judicial branch of government leaves the issue to the autonomous determination of the exec­ utive or legislative branch of government. Presumably the check on these branches in political matters is left to the direct action of the people.99 Judicial respect for legislative judgment in the task of punishing Congressmen for their misbehavior as Senators or Representatives is implied in the Constitution. Article I, Section 5 provides that "Each house may determine the rules of its proceedings, punish its members for disorderly behavior and with the concurrence of two-thirds, expel a member." The disinclination of federal courts to intervene in the disciplining of Congressmen is illustrated in the Supreme Court's denial of certiorari in the 1967 case of Powell v. McCormack.l0 ° There the Court let stand the refusal of the U.S. District Court to enjoin Congress from enforcing a

"Of course, the executive and legislative branches may also check each other. For example, congressional power over appropriations may act as a substantial check upon the executive, and the executive has its veto power with respect to legislation. 100266 F. Supp. 354 (D.C.D. 1967), cert, denied, 387 U.S. 933 (1967). 44 resolution expelling Adam Clayton Powell from the House of Representatives. However, in a 1969 decision, concurred in by Justice Harlan, the Supreme Court in an opinion by Chief Justice Warren held that the House of Representatives had no power to exclude from its membership any person who was duly elected by his constituents and who met the age, citizenship, and residence requirements specified in the Constitution.101 Thus, the Court ruled that the plaintiff, again Adam Clayton Powell, was entitled to a declaratory judgment that he had been unlawfully excluded from the 90th Congress. Under the facts of the second Powell case, the Court took the view that the case was a justiciable one rather than one involving a nonjusticiable political question.

A third area of political questions is that in which jurisdiction has often been declined by courts for want of judicial competence, i.e., an unwillingness to reach the merits where the solution required information not readily available to judges, as in Coleman v. Miller,102 or in those cases where only some other branch of government could

10'-Powell v. McCormack, 395 U.S. 486 (1969). 102307 U.S. 433 (1939). Chief Justice Hughes, speak­ ing for the Court, indicated that solution would require "an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice. . . ." Ibid., pp. 453-54. 45 provide a solution. The best example of the latter, Cole- grove v. Green,x °3 has been overruled by Baker v. Carr1°" and its progeny, discussed below. Finally, the doctrine of political questions has been invoked when a decision on the merits would result in unen­ forceable orders, or decrees which would be the focal point for widespread public dislike or even public violence. One of the standard works on political questions suggests, for example, that Chief Justice John Marshall saw the status of Indian Tribes as such a question because he was certain that neither Georgia nor President Jackson would permit judicial solution of the Cherokee question.105 The classic example of a political question in this last category is that found in Luther v. Borden106 where armed conflict might have

103328 U.S. 549 (1946). Justice Frankfurter's asser­ tion here was that "no court can affirmatively remap the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid." Ibid., p. 553. 10"369 U.S. 186 (1962). 105Charles Gordon Post, Jr., The Supreme Court and Political Questions (Baltimore: Johns Hopkins Press, 1936) . 106U.S. (7 How.) 1 (1849). There was at the time an insurrection [Dorr's Rebellion] in Rhode Island which could have escalated into civil war. It is obvious, however, that these concerns have not prevented the Supreme Court from accepting explosive cases like Brown v. Board of Education, 347 U.S. 483 (1954). 46 resulted from Supreme Court intervention. In this case the Court held that the question of whether a state has a repub­ lican form of government is a political and not a judicial question. The Supreme Court refused to define a republican form of government, holding that Congress and the President must decide. Perhaps the most important generalization to be made about the political question cases is that there is no test readily available for determining whether a particular matter is outside the realm of judicial competence. The Constitution may indicate clearly enough in some cases which areas are within the provinces of the several branches of government, but it does not provide any obvious guidelines for determining when decisions in those areas are to be accorded a finality beyond challenge on any grounds. Thus, the holding that an executive or legislative decision is to be accorded finality because it involves a political question is, in reality, a conclusion which follows from a weighing of various policy considerations concerning the appropriateness of judicial review. It was not until the 1960s that the Supreme Court was to decide in a series of cases one of the most political of all political questions, defined by Professor Nelson Polsby as "how the boundaries are drawn which determine who 47 represents whom in Congress, state legislatures, and other governing bodies."107 Chief Justice Earl Warren said in an interview on the occasion of his retirement from the Supreme Court that the reapportionment rulings were the most important decisions of his era, because they nourished democracy at its roots.108 On the contrary, Justice Harlan saw in those decisions a debilitating effect on democracy, the federal system and the principle of separation of powers. This conflict of views is to be considered at length in the discussion that follows. Apportionment goes to the core of the issue of repre­ sentative democracy because it determines the distribution of political power in national, state and local legislatures. It is the distribution of seats--legislative representation-- within a particular, legally defined, geographical unit of government. "Whoever decides what the game of politics is about decides also who can get into the game," wrote Pro­ fessor E.E. Schattschneider.l °9 Apportionment, in a sense,

107Nelson W. Polsby, ed., Reapportionment in the 1970s (Berkeley: University of California Press, 1971) , p.1. I08New York Times, June 27, 1969, p. 17, col. 6. Ranking below Baker v. Carr, 369 U.S. 186 (1962), and the other reapportionment cases in Warren's heirarchy of impor­ tance were the criminal procedure cases, Gideon v. Wain- wright, 372 U.S. 335 (1963), e.al., and the racial relations cases, Brown v. Board of Education, 349 U.S. 294 (1955), et al. 109E.E. Schattschneider, The Semi-Sovereign People (New York: Holt, Rinehart, and Co., 1960), p. 105. 48 is the variable that determines who gets into the game of politics and who will have the power to deliberately control others. The population concept as a basis for representation in the national and state legislatures was embraced by the framers of the Constitution, except for the Senate compromise and the Presidential Electoral College system. While the theory of equal population apportionment was supported widely in the United States, its implementation in apportionment systems was subject to being tempered by consideration of other factors as legitimate and competing bases of represen­ tation—such as representation of political subdivisions and economic interests. Over the years deviation from the popu­ lation standard took place due to a number of factors listed by Professor Howard Ball as "(1) the closing of the fron­ tier, (2) a mobile, growing urban population (in large part) the result of waves of immigration, (3) localism and the accompanying distrust of the city's corrupt bosses and its low-class inhabitants by the rural population and its polit­ ical leaders, and (4) a desire to preserve the political and economic structure's status quo."110

11"Howard Ball, The Warren Court's Conceptions of Democracy (Rutherford, N.J. : Fairleigh Dickinson University Press, 1U71), p. 52. 49 Professor Harold J. Spaeth describes in the follow­ ing terms the stage that was set for the reapportionment cases that were decided by the Supreme Court in the 1960s: The impetus for reapportionment lay in the overrepre- sentation of rural areas in the state legislatures and Congress while an ever increasing percentage of America's population resides in cities and suburban areas. Rural legislators were neither conversant with nor sympathetic to the problems and needs of city dwellers and subur­ banites . 111 Schubert wrote of three functional requisites which must be present in order for the Supreme Court to make major policy innovations. They are (1) the Supreme Court has to be packed with a majority favoring change in standing doctrine, (2) a national majority favoring such a change must also exist, and (3) the policy change would not jeopardize the Court's cap­ acity to assume success in other policy areas.112 By 1956, Schubert indicates that with the addition of Associate Justice Brennan to the Supreme Court, there was a majority on the court consisting of Chief Justice Warren along with Justices Brennan, Douglas, Black and Clark, that favored rehearing the apportionment issue--but the court was involved in the racial segregation cases. Judicial strategy called for pro­ crastination, for "one bombshell at a time is enough."113

11 Harold J. Spaeth, The Warren Court (San Francisco, Chandler, 1966), p. 73. 112Glendon Schubert, Judicial Policy-Making (Chicago: Scott-Foresman, 1965), p. 153. 113Ibid., p. 150. 50 By the 1960s there was an emergence in the American polity of the requisites Schubert asserted as necessary for Supreme Court review of an issue the Court had classified in the 1946 case of Colegrove v. Green,11" and other precedents, as a political question outside the competence of the federal courts to adjudicate. The first of the Warren Court's reapportionment deci­ sions was in Baker v. Carr in 1962, 115 ending an era of judi­ cial noninvolvement with malapportionment. In the interval between Colegrove and Baker, the Supreme Court did, in 1960, order relief from malapportionment in Gomillion v. Light- foot,116 however, this case was more race relations in nature, in that the Court held, with Harlan in agreement, that the redrawing of the boundaries of Tuskegee, Alabama, to exclude Negro voters from the city violated the Fifteenth Amendment of the U.S. Constitution. Although Justice Frankfurter's opinion for the Court carefully distinguished the reappor­ tionment cases, it was foreseeable that other members of the Court might treat Gomillion as a stepping stone to re-exam­ ination of Colegrove v. Green and its progeny.

Before Baker v. Carr, the Supreme Court consistently had refused to entertain constitutional complaints about

1J"328 U.S. 549 (1946). 115369 U.S. 186 (1962). 116364 U.S. 339 (1960). 51 the maintenance of systems of inequitable representation. This policy was first clearly manifested in the 1946 case of Colegrove v. Green. J1 7 In Colegrove v. Green, Kenneth Colegrove, a polit­ ical science professor at Northwestern University, and two associates, who voted in congressional districts that had much larger populations than other districts in Illinois, sued to restrain state executive officers from holding an election pursuant to a 1901 apportionment law. The claimants alleged that the application of the law denied rights guar­ anteed by Article I and the Fourteenth Amendment of the U.S. Constitution. The U.S. Supreme Court in a four to three decision affirmed a dismissal of the case by the U.S. Dis­ trict Court. The question before the courts was whether Colegrove's allegedly diminished and diluted vote for a Con­ gressman, due to malapportionment, was a form of discrimina­ tion prohibited by the Fourteenth Amendment's equal protec­ tion clause.

Justice Frankfurter, speaking for the majority, held "that the appellants ask of this Court what is beyond its competence to grant. . . ."118 The Court had refused to intervene in cases like Colegrove, he noted, because "due

117328 U.S. 549 (1946). 118Ibid., pp. 551-52. 52 regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and there­ fore not meet for judicial determination."119 At best, the opinion went on, the Supreme Court could declare the exist­ ing Illinois electoral system invalid. This would mean electing representatives to Congress on an at-large basis. "The last stage," maintained Frankfurter, "may be worse than the first," for this judicial action would defeat "the vital political principle which led Congress ... to require dis­ tricting." Frankfurter said of this principle that it was "recommended by the wisdom and justice of giving, as far as possible, the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people," though approach­ ing perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever to the national councils."120 Frankfurter saw inter­ vention of the courts in apportionment as "hostile to a dem­ ocratic system," and that "courts ought not to enter the political thicket."121 Thus, Frankfurter elaborated the terse statement of restraintist principle which had been

119Ibid., p. 552. 120Ibid., p. 553. 121Ibid., p. 556. 53 enunciated by Chief Justice John Marshall and followed by the Court for well over one hundred years; "It is not for us to depart from the beaten track prescribed for us and to tread the devious and intricate path of politics."122 Since 1946, and until 1962, the Supreme Court con­ tinued to employ the Colegrove rationale to deny challenges in federal courts to legislative malapportionment, with Justices Black and Douglas often dissenting.123 The acuity of the deviation from numerical equality of representation in the state legislatures is shown in the following data gleaned from relevant studies of the subject. In 1962 state legislative apportionment in both Con­ necticut and Florida was such that the votes of only twelve percent of the population of either state could exercise effective control within the lower houses of their respective legislatures. In Vermont similar power rested in eleven and six-tenths percent of the popula­ tion. In Arizona only twelve and eight-tenths percent of the population could effectively control the upper cham­ ber; in California effective control over the Senate could be exercised by only ten and seven-tenths percent; in Florida's Senate only twelve percent of the population effectively controlled the legislative process. The extreme situation among state legislatures, however, was that of the Nevada Senate, where as few as eight percent of the populace effectively controlled the Senate.12"

122The Nereide, 13 U.S. (9 Branch) 388, 422-23 (1815). 123Hartsfield v. Sloan, 35 U.S. 916 (1958); Kidd v. McCanless, 352 U.S. 920 (1956) ; Anderson v. Jordan, 343 U.S. 912 (1952); Remmey v. Smith, 342 U.S. 916 (1952); South v. Peters, 339 U.S. 276 (1950); Cook v. Fortson, 329 U.S. 675 (1946) 12"J. Dudley McClain, Jr., "Reapportionment Recapit- utated: 1960-1970." Georgia State Bar Journal, 7 (November, 1970), 191. 54 This brings the reapportionment discussion to the fountainhead case of Baker v. Carr,12 5 decided in 1962, and in which Justice Harlan filed one of his most vigorous dis­ sents. In this case, instituted under the Civil Rights Act,126 the plaintiffs, citizens of Tennessee, alleged that Tennessee's scheme of apportionment diluted their vote to the extent that their federal constitutional rights were violated under the equal protection of the laws clause of the Four­ teenth Amendment of the U.S. Constitution.127 Tennessee had failed since 1901 to reapportion the state legislature decennially, using population as a basis, as required by the state constitution. From 1901 to 1961 the qualified voter population quadrupled and shifted from rural to urban areas, producing the alleged debasement of urban voting power. By 1960 House districts of the Tennessee legislature ranged from 3,454 to 79,301 and Senate districts ranged from 39,727 to 237,905 in population.

125359 U.S. 186 (1962) . 12642 U.S.C.A. See's. 1983, 1988 (1957). I27U.S. Constitution, Amendment XIV, Section 1. "No state shall-! '. '. deny to any person within its jurisdiction the equal protection of the laws." 55 The Baker v. Carr holding of the Supreme Court, by a vote of six to two,128 was summarized in the majority opinion by Justice Brennan as follows: In light of the District Court's treatment of the case we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justi­ ciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes. 9 Nowhere in Brennan's 162 page opinion did the Court decide what constituted unconstitutional apportionment, nor did the Court establish the standard by which the lower courts were to measure the validity of apportionment systems under the Fourteenth Amendment. The standard was to be supplied by the Supreme Court in the 1964 appropriation cases,130 and the cases they spawned, discussed later in this chapter. In Baker, Brennan said, ". . .we have no cause at this stage to doubt the District Court will be able to fashion relief. . . ,"131

Of the three members of the Court who had joined in the Frankfurter opinion in the Colegrove case, only Jus­ tice Frankfurter himself was still on the bench. Justices Reed and Burton who had supported him, were gone and so was Justice Rutlege whose concurrence in the result had enabled the Frankfurter doctrine to prevail. Justices Black and Douglas, dissenters in Colegrove, were still sitting. Chief Justice Warren and Associate Justices Clark, Harlan, Brennan, Whittaker, and Stewart had all come to the Court since Cole­ grove. Justice Whittaker, however, did not participate in the decision of Baker v. Carr.

129Baker v. Carr, 369 U.S. 186, 197-98 (1962). '"Reynolds v. Sims, 377 U.S. 533 (1964). 131369 U.S. 186, 198 (1962). 56 The issues in Baker, Brennan asserted, had none of the characteristics of political questions. We come, finally to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable 'polit­ ical' question bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common -characteristics which we have been able to identify and label descriptively are present. We find none. The question here is the consistency of state action with the Federal Constitution. We have no ques­ tion decided, or to be decided, by a political branch of government coequal with this Court. . . . 13Z Brennan explained that judicial abstention in political ques­ tions was a response to the doctrine of separation of powers applicable in the case of co-ordinate branches of the national government. He stated "It is the relationship between the judiciary and the co-ordinate branches of the Federal Government, and not the federal judiciary's relation­ ship to the States, which gives rise to the political question."133 Whether a state legislature has been malap- portioned is a justiciable question rather than a political question. Brennan observed that "The mere fact that the suit seeks protection of a political right does not mean it presents a political question."13" Three of the justices — Douglas, Clark, and Stewart- wrote concurring opinions. Justice Douglas claimed that

132Ibid., p. 226. 133Ibid., p. 186. 13"lbid., p. 186. 57 "Universal equality is not the test; there is room for weighting,"135 and he indicated that the test under the equal protection clause was whether or not "invidious discrimina­ tion" existed. This stance suggested that Douglas did not think, at the time, that the standard for state apportion­ ment systems must be population alone. Justice Clark believed that the Court should have declared that a violation of the equal protection clause existed and proceeded to award relief. Clark opined that the test under the equal protection clause was one of "ration­ ality." And in this respect he found the Tennessee appor­ tionment act of 1901 to be lacking, since it was a "crazy quilt without rational basis" which admitted of "no policy whatever."136 While Justice Clark did not believe that pre­ cise numerical equality was required, he believed that the inequalities he had seen were more than reason could allow. In addition, he underlined the propriety of judicial inter­ vention in this case. Earlier cases in which judicial abstention was held to be the proper posture, the courts had said that citizens had the "practical" option of voting in legislators mandated to redress the apportionment balance. This view neglected to note that in many states the majority

135Ibid., pp. 244-45. 136Ibid., pp. 254, 257. 58 was, try as it might, unable to rule. Justice Clark said in this regard: Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee. But the majority of the people of Tennessee have no 'practical opportunities for exerting their political weight at the polls' to correct the existing 'invidious discrimination.' Tennessee has no initiative and referendum. I have searched dilligently for other 'practical opportunities' present under the law. I find none other than through the federal courts.137 Addressing himself to judicial self-restraint, Clark observed, "It is well for this Court to practice self- restraint and discipline in constitutional adjudication, but never in its history have those principles received sanction where the national rights of so many have been so clearly infringed for so long a time. National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges. In my view the ultimate decision today is in the greatest tradition of the Court."138

The last of the concurring opinions, Justice Stewart's, was a brief statement that "emphasizes in a few words what the opinion [Brennan's] does and does not say."139

137Ibid., p. 258. 138Ibid., p. 262. 139Ibid., p. 265. 59 Maintaining that the Court opinion decided only the issues of jurisdiction, justiciability, and standing, Stewart stated that the Court did not reach the merits of the case. He implied in his opinion a conception of democracy that takes into account area representation. Both Justices Frankfurter and Harlan dissented, each joining also in the other's opinion. Frankfurter, in what was to be his last opinion as a justice, declared in the opening of his delivery from the bench: "Today the court begins a process of litigation that it requires no prophet to say--and Cassandra was sometimes right—will outlast the life of the youngest member of this court."1"0 Frankfurter, in his dissenting opinion, reiterated the arguments he made in the 1946 Colegrove opinion and saw accepted for sixteen years by federal and state courts. These were (1) that the case did not fall within the jurisdiction of the Courts, it was a "political question," (2) that the courts could not provide remedies nor grant relief, and (3) that "In a demo­ cratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives."1"1

llt0New York Times, March 27, 1962, p. 20. More than a decade later apportionment litigation continues to make up a portion of the caseload of the Supreme Court. 11,1 Baker v. Carr, 369 U.S. 186, 270, (1962). 60 Justice Harlan, in a stinging dissent, begins his attack on the majority opinion by pointing out that Justice Frankfurter's dissenting opinion, in which he joined, "dem­ onstrates the abrupt departure the majority makes from judicial history by putting the federal courts into this area of state concerns — an area which, in this instance, the Tennessee state courts themselves have refused to enter."1"2 Harlan prefaced his written dissent by declaring from the bench on the day the ruling was handed down that Baker v. Carr "is the most important decision rendered by this Court, in its potential consequences, since I have had the privilege of being here."1"3 Harlan argues that the equal protection clause does not support the view that "state legislatures should be struc­ tured as to reflect with approximate equality the voice of every voter."1"" Elaborating upon this view, Harlan asserts, In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argu­ ment that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. . . . Hence we must accept the present form of the Tennessee legislature as the

1"2Ibid., p. 330. 1"3New York Times, March 27, 1962, p. 20. x""Baker v. Carr, 369 U.S. 186, 332, 334 (1962). 61 embodiment of the State's choice, or, more realistically, its compromise between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State's internal political conflict is desirable or undesirable, wise or unwise.1"5 Harlan recites a multitude of legitimate legislative policies, along with the circumstances of geography and demography, which could account for the seeming electoral disparities among the counties in Tennessee; for example, the area of the county, the location within a county of some major industry which may be thought to call for dilution of voting strength, as well as various economic, political and geographic considerations.1"6 Harlan saw rationality in a state's apportionment policies chosen on the basis of such factors and deemed best suited to the interests, temper and customs of its people.1"7 Harlan's opinion saw the ration­ ality of the Tennessee legislature: "To preserve the elec­ toral strength of the rural interests notwithstanding shifts in population."1"8 The extreme of Harlan's passion for restraint on the part of the Court as an instrument for the support of federalism and separation of powers is exhibited here. He proclaims that the Tennessee apportionment is

x"5Ibid., p. 333. 1"6Ibid., pp. 346-47. 1"7Ibid., p. 334. 148Ibid., p. 348. 62 rational, not capricious, even if it were shown that leg­ islators "had been activated by self-interest in perpetuat­ ing their own political offices or by other unworthy or improper motives." He adds that "It is not the business of the federal courts to inquire into the personal motives of legislators."1"9 In Harlan's view, democracy does not demand numerical equality as a standard of political representation; so long as there is a rational policy presented by the leg­ islature, albeit a discriminatory one'against certain types of citizens in the state, the Court ought not to judge the policy.

Harlan, in the following excerpts from his dissent­ ing opinion in Baker v. Carr, carefully delineates the dis­ tinction between what his personal views about malapportion­ ment may be and what he believes to be the controlling prin­ ciples of constitutional law. . . . appellants' allegations, accepting all of them as true, do not, parsed down or as a whole, show an infringe­ ment by Tennessee of any rights assured by the Fourteenth Amendment. . . . The issue here relates . . . solely to the right of a State to fix the basis of representation in its own legislature. . . .x 50 The Federal Constitution imposes no limitation on the form which a state government may take other than

1"9Ibid., p. 337. 150Ibid., p. 331. 63 generally committing to the United States the duty to guarantee to every State 'a Republican Form of Govern­ ment. ' 151 The fact that the appellants have been unable to obtain political redress of their asserted grievances appears to be regarded as a matter which should lead the Court to stretch to find some basis for judicial inter­ vention. While the Equal Protection Clause is invoked, the opinion for the Court notably eschews explaining how, consonant with past decisions, the undisputed facts in this case can be considered to show a violation of that constitutional provision. . . . Thus, what the Court is doing reflects more an adventure in judicial experi­ mentation than a solid piece of constitutional adju­ dication. . . .

. . . it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today. Harlan closed his dissenting opinion in Baker with an observation on the role of the Supreme Court in the American polity. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past. Those who consider that continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in con­ stitutional adjudication, will view the decision with deep concern. 3

Justice Harlan's principal argument in Baker v. Carr was that the equal protection clause of the Fourteenth

151Ibid., p. 333. 152Ibid., pp. 339-40. 153Ibid., pp. 340-41. 64 Amendment did not require that "state legislatures must be so structured as to reflect with approximate equality the voice of every voter."15" So long as "there exists a pos­ sible rational legislative policy for retaining an existing apportionment," he argued, "such a legislative decision can­ not be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords." As Harlan saw it, the standard was therefore whether an apportionment was based upon any rational policy, and to Harlan, under this standard the apportionment of the Tennessee legislature under its 1901 act was rational. One need not search far, he asserted, "to find rationality in the Legislature's con­ tinued refusal to recognize the growth of the urban popula­ tion that has accompanied the development of industry over the past half century. The existence of slight disparities between rural areas does not overcome the fact that the fore­ most apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population."155 Harlan found this legislative policy rational and therefore in conformity with the equal protection clause. Thus, while Harlan agreed with Frankfurter that the courts should not enter the apportionment arena, he

15"369 U.S. 186, 332 (1962). 155Ibid., p. 348. 65 also felt that upon the merits of the case the standard imposed by the Fourteenth Amendment was one of rationality. Since Tennessee's apportionment system met this test, Harlan believed that the decision of the district court finding that it passed constitutional muster should be affirmed. Professor Robert G. McCloskey, writing about Baker v. Carr in the Harvard Law Review, said that the response to -Baker was astonishing, that the decision catalyzed a new political concensus "that was straining to come into being," and "it may be that most Americans have come to think of some version of the majority principle as at least the presump­ tive democratic standard."156 The matter of the appropriate remedy and the enforce­ ment of provisions of the Fourteenth Amendment quickly con­ fronted the Supreme Court in a series of apportionment and electoral cases. The decision in Baker v. Carr acted like the opening of a sluice gate. Within nine months of the decision litigation attacking apportionment of state legis­ latures had been instituted in more than thirty states. On the day Baker v. Carr was decided, a suit was filed in federal court seeking to invalidate the Georgia county unit system.157

1 "Robert G. McCloskey, "The Reapportionment Case," Harvard Law Review 76 (November, 1962), 54. 157The New York Times, March 27, 1962, p.' 21. 66 Under the county unit system, candidates who receive the highest number of popular votes in a county were considered to have carried the county. Each such candidate for representative in the lower house of the state legisla­ ture received two votes, a majority of the county unit vote nominated a United States Senator and the Governor, while a plurality of the county unit vote nominated others. The formula used weighted the vote heavily in favor of the small, rural counties in the state--for example, one unit vote in Echols County, the smallest in the state, represented 938 residents, where one unit vote in Fulton County [Atlanta], the largest, represented 92,721 residents. In short, one vote in Echols County had ninety-nine times the value of a vote in Fulton County.

A qualified voter in Fulton County sued the chairman and secretary of the Georgia State Democratic Executive Com­ mittee and the Secretary of State of Georgia to restrain them from using the county unit system as a basis for counting votes in a Democratic primary for the nomination of a United States senator and statewide officers. The plaintiff con­ tended that the use of the county unit system violated the Fourteenth Amendment. The issue in the case was whether a state can employ a scheme of weighted voting in selecting representatives from one geographical constituency? The U.S. District Court held that the county unit system vio­ lated equal protection and issued an injunction. 67 On appeal, writing for six members of the Supreme Court in Gray v. Sanders,158 Justice Douglas introduced the "one man, one vote" standard. Douglas said that while Georgia gave every qualified voter one vote in a statewide election, under the county unit system, it weighted the rural vote more heavily than the urban vote and weighted some rural counties heavier than other larger rural counties. The opin­ ion of the Court by Douglas points out that the case "did not have anything to do with composition of the state or federal legislatures."159 The Court's focus was on the single-constituency nature of the Gray case and the essence of the ruling is captured in these passages from the Douglas opinion: Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote--whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. . . .16° The conception of political equality from the Declar­ ation of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing —one person, one vote.161

158372 U.S. 368 (1963). 159Ibid., p. 378. 160Ibid., p. 379. 161Ibid., p. 381. 68 Justice Stewart, joined by Justice Clark, concurred, saying: "We do not deal here with 'the basic ground rules implementing 'Baker v. Carr.' . . . Within a given constitu­ ency, there can be room for but a single constitutional rule --one voter, one vote."162 Justice Harlan was the lone dissenter in Gray v. Sanders. The following excerpts from Harlan's dissenting opinion are set forth here to show his strongly held belief that the Court's "one person, one vote" ideology is consti­ tutionally untenable. When Baker v. Carr . . . was argued at the last term we were assured that Tf this Court would only remove the roadblocks of Colegrove v. Green . . . and its pred­ ecessors to judicial review in 'electoral' cases, this Court in all likelihood would never have to get deeper into such matters. State legislatures, it \^as predicted, would be prodded into taking satisfactory action by the mere prospect of legal proceedings. These predictions have not proved true. As of November 1, 1962, the apportionment of seats in» at least 30 state legislatures had been challenged in state and federal courts,- and, besides this one, 10 electoral cases of one kind or another are already on the Court's docket. The present case is the first of these to reach plenary consideration. Preliminarily, it is symptomatic of the swift pace of current constitutional adjudication that the majority opinion should have failed to mention any of the four occasions on which Georgia's County Unit System has previously but unsuccessfully been challenged in this Court. . . .163

1 6 2 Ibid., p. 382, 163Ibid., pp. 382-83, citing Cook v. Fortson and Turman v. Duckworth, 329 U.S. 675 (1946); South v.Teters, 339 U.S. 276 (1950); Cox v. Peters, 342 U.S. 936 (1952); Hartsfield v. Sloan, 357 U.S. 916 (1958). 69 This estimate of the earlier situation is high­ lighted by the dissenting opinion of Justices Black and Douglas in South v. Peters, ... in which they unsuccessfully espoused the very views which now become the law. Presumably my two Brothers also reflected these same views in noting their dissents in the Cox and Harts fie Id case. . . ,16" The Court's holding surely flies in the face of his­ tory. For, as impressively shown by the opinion of Frankfurter, J. in Baker y. Carr 165. . . 'one person, one vote' has never been the universally accepted politi­ cal philosophy in England, the American Colonies, or in the United States. . . . But, independently of other reasons . . . any such distinction finds persuasive refutation in the Federal Electoral College whereby the President of the United States is chosen on principles wholly opposed to those now held constitutionally required in the electoral pro­ cess for statewide office. . . . 166 Indeed this Court itself some 15 years ago rejected, in a comparable situation, the notion of political equal­ ity now pronounced. ... In disallowing this claim, the Court said:167 'To assume that political power is a function exclu­ sively of numbers is to disregard the practicalities of government. ... It would be strange indeed, and doc­ trinaire, for this Court, applying such broad constitu­ tional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thickly populated counties and those having concentrated masses, in view of the fact that the latter have practical oppor­ tunities for exerting their political weight at the polls

16"lbid., p. 383. 165Ibid., p. 384, citing Justice Frankfurter's dis­ senting opinion in Baker v. Carr, 369 U.S. 186, 301-24 (1962). 166Ibid., p. 384. 167Ibid., p. 385, citing MacDougall v. Green, 334 U.S. 281 (1948). 70 not available to the former. The Constitution—a prac­ tical instrument of government--makes no such demands on the States.'168 Certainly no support for this equal protection doc­ trine can be drawn from the Fifteenth, Seventeenth, or Nineteenth Amendment. The Fifteenth Amendment simply assures that the right to vote shall not be impaired 'on account of race, color or previous condition of servitude.' The Seventeenth Amendment provides that Senators shall be 'elected by the people,' with no indication that all people must be accorded a vote of equal weight. The Nineteenth Amendment merely gives the vote to women. . . .16 9 The disproportions in the Georgia County Unit System are indeed not greatly out of line with those existing under the Electoral College count for the Presidency. . . . It was of course imponderables like these that lay at the root of the Court's steadfast pre-Baker v. Carr refusal 'to enter [the] political thicket.' . . . Having turned its back on this wise chapter in its history, the Court, in my view, can no longer escape the necessity of coming to grips with the thorny problems it so studiously strove to avoid in Baker v. Carr. 170 Less than a year after the decision in Gray v. Sanders another Georgia apportionment case was heard by the Supreme Court. In this case, Wesberry v. Sanders,171 a forerunner of the "one man, one vote" pronouncement in Reynolds v. Sims172 discussed below, the Court had before it a consider­ ation of Georgia's apportionment of the state's congressional

168MacDougall v. Green, 334 U.S. 281, 283-84 (1948). 169Gray v. Sanders, 372 U.S. 368, 385-86 (1963). 170Ibid., p. 388. 171376 U.S. 1 (1964). 172377 U.S. 533 (1964) . 71 districts. Before examining the Court's opinion, and Har­ lan's dissenting opinion in particular, it will be helpful to look at selected data evidencing the malapportionment of congressional districts across the nation at the time of Wesberry. In 1962 congressional districts in Colorado ranged in size from 215,467 persons above the 'ideal' size to 242,936 persons below that mathematical ideal. In Mas­ sachusetts the disparity was only 45,643 above, but ranged to 147,846 below the 'ideal.' In Michigan, con­ gressional districts in 1962 ranged from 391,247 persons above the 'ideal' to 294,316 persons below it. In each of those states by 1967 congressional districting for the Ninetietli Congress had been brought much more clearly in line with the mathematical 'ideal.' Prior to 1964 the maximum population variations from state averages were Georgia's one hundred eight and nine-tenths percent and Texas' one hundred eighteen and one-half percent above and Colorado's fifty-five and four-tenths percent below.173

In Wesberry v. Sanders the Supreme Court, over one of Justice Harlan's most strongly worded dissents, completed the process of overruling Colegrove v. Green's17" dictate that the judiciary must abstain from passing on the consti­ tutional validity of congressional districting. The plain­ tiffs in Wesberry resided and voted in Georgia's most popu­ lous congressional district; its one representative had a constituency over twice the size of the average Georgia dis­ trict. The complaint alleged that the consequent dilution

173J. Dudley McClain, Jr., "Reapportionment Recapitu­ lated: 1960-1970," Georgia State Bar Journal, 7 (November, 1970), 191, 192. 17"328 U.S. 549 (1946). 72 of the plaintiffs' voting power deprived them of constitu­ tional rights secured both by Article I and by the Fourteenth Amendment. A three-judge federal court, relying on Colegrove, dismissed the complaint. The Supreme Court reversed, speak­ ing through Justice Black. The Court never reached the plaintiffs' claim under the Fourteenth Amendment—which was to serve as the keystone in Reynolds v. Sims--but held instead that "construed in its historical context, the com­ mand of Art. I, Sec. 2 [of the United States Constitution], that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."175 Justice Black, writing for six members of the Court, also said: In urging the people to adopt the Constitution, Madison said in No. 57 of The Federalist: Who are to be the electors of the Federal Represen­ tatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. . . . Readers surely could have fairly taken this to mean 'one person, one vote.'176

175376 U.S. 1, 7-8. Supporting this view is Andrew Hacker, Congressional Districting: The Issue of Equal Repre­ sentation (Washington, D.C: The Brookings Institution, 1963), pp. 6-7'. 176376 U.S. 1, 18 (1964). 73 Justice Clark, concurring in part and dissenting in part, said: ". . . in my view, Brother Harlan has clearly demonstrated that both the historical background and language preclude a finding that Art. 1, Sec. 2, lays down the ipse dixit 'one person, one vote' in congressional elections."177 In his dissenting opinion Justice Harlan lashes out at what he views in the Court's majority opinion as unsound statements of history, poor reasoning, an erosion of fedem alism and the separation of powers, and a dangerous departure from the Court's proper role in our constitutional system. I had not expected to witness the day when the Supreme Court of the United States would render a deci­ sion which casts grave doubt on the constitutionality of the composition of the House of Representatives. . . .178 today's decision impugns the validity of the election of 398 Representatives from 37 States. . . . Only a demonstration which could not be avoided would justify this Court in rendering a decision the effect of which. ... is to declare constitutionally defective the very composition of a coordinate branch of the Federal Government. The Court's opinion not only fails to make such a demonstration, it is unsound logically on its face and demonstrably unsound historically. . . . it is beyond the province of this Court to decide whether equally populated districts is the prefer­ able method for electing Representatives, whether state legislatures would have acted more fairly or wisely had they adopted such a method, or whether Congress had been derelict in not requiring state legislatures to follow that course. Once it is clear that there is no

177Ibid. 178Ibid., p. 20. 179Ibid., pp. 21-22. 74 constitutional right at stake, that ends the case 18 0 . . . the Court's talk about 'debasement' and 'dilu­ tion' of the vote is a model of circular reasoning, in which the premises of the argument reed on the conclu- ,- A ~„ 18 1 sion. . . . The constitutional scheme vests in the States plenary power to regulate the conduct of elections for Representa­ tives, and, in order to protect the Federal Government, provides for congressional supervision of the States' exercise of their power.182 The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has com­ mitted exclusively to the political process. . . . The Constitution does not confer on the Court blanket authority to step into every situation where the politi­ cal branch may be thought to have fallen short. . . . What is done today saps the political process. The promise of judicial intervention in matters of this sort cannot but encourage popular inertia in efforts for political reform through the political process, with the inevitable result that the process is itself weakened.183 By the time the Supreme Court had reached the thresh- hold of decision in the landmark case of Reynolds v. Sims18" and companion cases in 1964, the Court had decided Baker, establishing justiciability in apportionment disputes; Gray,

i80Ibid., p. 24. 181Ibid., p. 25. 182Ibid., p. 42. 183Ibid., p. 48. 184'37 7 U.S. 533 (1964) 75 mandating the "one man, one vote" principle regarding voters within a given geographical constituency; and Wesberry, extending "one man, one vote" so as to force, where necessary, state legislatures to redistrict and reapportion congres­ sional districts and representatives on the basis of popula­ tion equality. Justice Harlan wrote strong dissents in every case along the way, but he did not stop the tide of what the majority of the Court deemed to be constitutionally required political equality. What was left for the Court to deter­ mine was the extent to which the "one man, one vote" prin­ ciple would apply to state districting and apportionment of their legislatures. The answer was provided by the Court in Reynolds v. Sims,185 with Justice Harlan registering the only dissent.

Chief Justice Warren wrote the majority opinion of the Court in Reynolds, a case described by The New York Times as a radical decision of "historic importance." Not since the school segregation cases ten years ago had the Court interpreted the Constitution to require so fundamental a change in this country's institutions. Indeed, the Times concluded that Reynolds was one of the Supreme Court's "most far-reaching decisions since Marbury v. Madison established its power of judicial review in 1803."186

18SIbid. 6New York Times, June 16, 1964, p. 38, col. 1. 76 Unquestionably, the interest in apportionment problems pro­ voked more widely spread reflection on political theory than at any time since the founding of this country. In Reynolds v. Sims,187 a suit challenging Alabama's legislative apportionment, and in five other cases decided the same day in 1964, 188 the Supreme Court held that the leg­ islatures of the six states involved would have to be reappor­ tioned to bring them in conformity with the equal protection clause of the Fourteenth Amendment. The governing'principle announced by the Court in Chief Justice Warren's majority opinion was that each house of a state legislature must represent substantially the same number of people.189 Jus­ tice Clark, who dissented in the New York and Colorado cases, concurred in the judgments in the other cases on the basis that there was invidious discrimination against some voters resulting from a "crazy quilt" of apportionment. Justice Stewart, who also dissented in the New York and Colorado cases, concurred in the judgment in the Alabama, Delaware, and Virginia cases on the basis of the irrationality of the

187377 U.S. 533 (1964). 188WMCA, Inc. v. Lorenzo, 377 U.S. 633 (New York); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (Maryland); Davis v. Mann, 377 U.S. 678 (Virginia); Roman v. Sincock, 377 U.S. 695 (Delaware); Lucas v. Forty- Fourth General Assembly, 377 U.S. 713 (Colorado). 1 "Voting with the Chief Justice were Justices Black, Douglas, Brennan, White and Goldberg. 77 apportionment, and would have remanded the Maryland case for consideration of the issue whether the apportionment system there systematically prevented effective majority rule. Justice Harlan, speaking only for himself, filed a single dissenting opinion, applicable to all six cases, in which he characterized these decisions as cutting "deeply into the fabric of our federalism."190 Harlan objected that however desirable the consequences of the Court's decisions might be, they would be achieved at too high a cost—"the cost of a radical alteration in the relationship between the States and the Federal Government, more particularly the Federal Judi­ ciary."191 Writing a fifty-two page opinion for the majority of six justices, Chief Justice Warren in Reynolds v. Sims declared that the "right to vote freely for the candidate of one's choice is the essence of democratic society, and any restrictions on that right strike at the heart of representa­ tive government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exer­ cise of the franchise."192 The problem for the Court, the

19"Reynolds v. Sims, 377 U.S. 533, 589, 624 (1964). 191Ibid., p. 625. 192Ibid., p. 555. 78 Chief Justice said, was "to ascertain, in the instant case, whether there are any constitutionally cognizable principles which would justify departures from the. basic standard of equality among voters in the apportionment of seats in state legislatures.Ml9 3 Warren's opinion in Reynolds is best remembered by many for the following passage: Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representa­ tive form of government, and our legislatures are those instruments of government elected directly by and dir­ ectly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.19" "State legislatures," Warren said, are "historically, the fountainhead of representative government in this country," and representative government required "full and effective participation" of all voters in the political processes of the state legislatures. "Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective partici­ pation by all citizens in state government requires, there­ fore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands,

193Ibid., p. 560. 19"lbid., p. 562. 79 no less." A majority of the people of a state must be able to elect a majority of the state legislature, for otherwise, the Court held, a minority would control and this would "deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result." There were no criteria sufficient "to justify any discrimination, as to the weight of votes, unless relevant to the permissible purposes of legislative apportionment. Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. . . . Our con­ stitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures. And the democratic ideals of equality and majority rule, which have served this Nation so well in the past, are hardly of any less significance for the present and the future."195

Warren noted that Justice Harlan and others had warned the Court that apportionment was "complex and many- faceted," that factors other than population could be rationally considered, that the Court should not restrict the

195Ibid., pp. 564-66. 80 power of the states to choose among different theories of representation, and that the whole problem was a political thicket. The Court's answer, Warren asserted, was that "a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us."196 Despite the changing nature of society, he continued, the basic principle of representative government remains, and must remain, unchanged--the weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear command of our Con­ stitution's Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races. ... We hold that, as a basic constitutional standard, the Equal Protection Clause requires .that the seats in both houses of a bicam­ eral state legislature must be apportioned on a population basis. l93 7 After the Court's 1962 decision in Baker v. Carr, in which Harlan and Frankfurter joined in each other's dissents against the Supreme Court entering the reapportionment field, Harlan took up the restraintist mantle when Frankfurter retired later that year. In his role as spokesman for judi­ cial restraint, Harlan's Reynolds dissent is perhaps his most

196Ibid., p. 566. 197Ibid., pp. 567-68. 81 forceful statement in opposition to the Court becoming more involved in the electoral process. In announcing his dissent orally from the bench, Harlan declared that the Court's deci­ sion "in every accurate sense of the term. . . . involves. . . . amending the Constitution. ... If the time comes when this Court is looked upon by well-meaning people —or worse yet by the Court itself. ... as the repository of all reforms, I think the seeds of trouble are being sown for this institution."198 Reviewing in his opinion much of the his­ torical evidence that had been presented by Frankfurter in Baker v. Carr, Harlan concluded that the Court's interpreta­ tion of the Constitution's equal protection of the laws clause was not sustained by the intent of the framers of the Four­ teenth Amendment or the legislatures that ratified the amend­ ment, nor by the practice of the states in apportioning their legislatures since the amendment had been ratified in 1868. The equal protection clause, he said,

was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. This is shown by the language of the Fourteenth Amendment taken as a whole, by the understand­ ing of those who proposed and ratified it, and by the political practices of the States at the time the Amend­ ment was adopted. It is confirmed by numerous state and congressional actions since the adoption of the Fourteenth Amendment, and by subsequent constitutional amendments

22 Congressional Quarterly 2537 (1964). 82 and decisions of this Court before Baker v. Carr. . . made an abrupt break with the past in 1962. ' *3 The Constitution, Harlan asserted, is "an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens." Baker v. Carr, he thought, should therefore be recognized as "an experiment in venturesome constitutionalism," and the cases decided by the Court disposed of on the grounds that the plaintiffs had failed to state a cause of action under the Fourteenth Amendment.200 The following excerpts from Harlan's dissenting opin­ ion in Reynolds, and the other cases decided the same day, display the passion with which he believed the majority of . the Court had strayed from its proper role. These decisions, with Wesberry v. Sanders . . . and Gray v. Sanders . . . have the effect of placing basic aspects of state political systems under the pervasive overlordship of the federal judiciary. Once again, I must register my protest.201 Today's holding is that the Equal Protection Clause of the Fourteenth Amendment requires every State to struc­ ture its legislature so that all the members of each house represent substantially the same number of people. . . . Whatever may be thought of this holding as a piece of political ideology ... I think it demonstrable that the Fourteenth Amendment does not impose this political tenet on the States or authorize this Court to do so. . .

199Reynolds v. Sims, 377 U.S. 533, 590-91 (1964). 200Ibid., pp. 624-25. 2 0 1 Ibid., p. 589 83 Had the Court paused to probe more deeply into the matter, it would have found that the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. . . ,202 The Court's elaboration of its new 'constitutional' doctrine indicates how far--and how unwisely--it has strayed from the appropriate bounds of its authority. The consequence of today's decision is that in all but the handful of States which may already satisfy the new requirements, the local District Court or, it may be the state courts, are given blanket authority and the consti­ tutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intol­ erable and inappropriate interference by the judiciary with the independent legislatures of the States. . . .203 Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional'principle,' and that this Court should 'take the lead' in promoting reform when other branches of government fail to act. The Constitu­ tion is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform move­ ments. . . . This Court . . . does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the polit­ ical process. For when, in the name of constitutional interpretation, the Court adds something to the Consti­ tution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.20" [Emphasis in original.]

The simple mathematical rule of Reynolds enabled the Court to clear much of the bramble from the political thicket which the Court had entered in Baker over the remonstrances

202Ibid., pp. 590-91. 203Ibid., p. 615. 20"lbid., pp. 624-25. 84 of Frankfurter and Harlan. The result is an arithmetic majoritarianism which, as Professor Robert G. Dixon, Jr., has developed in his treatise on reapportionment, may defeat real representation of pluralistic interests in some circum­ stances.205 Dixon identifies several "thorns" and unsettled issues remaining after Reynolds in the apportionment thicket, including: (1) permissible deviations from absolute arithme­ tic equality, (2) gerrymandering, (3) determining the appor­ tionment base, (4) denial of representation to minority blocs by multimember districts, (5) local governing bodies, and (6) the Electoral College system of Presidential elections. The Court has made progress on Dixon's first-listed thorn by refusing to permit a de minimis concept to allow any particular range of deviation from the mathematical ideal and requiring the state to defend deviations from population by showing (1) unavoidability of deviations despite a "good faith" attempt or by (2) justifying the non-discriminatory and minor deviations by being able to articulate acceptable "justifiable" reasons for them.206 Justice Harlan's dissent in Swann, joined in by Justice Stewart, argued that the burden of proof should fall on the attacking party and that the

205Robert G. Dixon, Democratic Representation: Reapportionment in Law and Politics (New York: Oxford, 1968), pp. 436-582. 206See, e.g. Swann v. Adams, 385 U.S. 440 (1967); Kirkpatrick v. Preisler, 394 U.S. 526 (1969). 85 attacking party "has not proved his case" by not being able to show an invidious discrimination.207 In Kirkpatrick Harlan dissented, again joined by Stewart, and he chastised the Court's "Draconian judgments"that have turned "a polit­ ical slogan [Reynolds' 'one man, one vote'] into a constitu­ tional absolute." Harlan rejected the idea that "the consti­ tution requires that mathematics be a substitute for common sense in the art of statecraft."208 Determining the appor­ tionment base, i.e., whether numbers, either of persons or registered voters may be used, has not been too troublesome, with Harlan being in concurrence with the majority of the Court.209 The local-government thorn has been cut by the simplistic extension of the "one man, one vote" principle to all popularly elected governmental agencies.210 The most notable case in this category of cases is Avery in which the

207385 U.S. 440, 447-448 (1967). 208394 U.S. 526, 549-52 (1969). Support for Harlan's view is found in Abate v. Mundt, decided during Harlan's last term on the Court and in which it was held that mathe­ matical precision is not required in apportionment plans. 403 U.S. 182 (1971). 209See, Fortson v. Dorsey, 379 U.S. 433 (1965); Burns v. Richardson, 384 U.S. 73 (1966) . 21°See, Sailors v. Board of Education, 387 U.S. 105 (1966); Push v. Davis, 387 U.S. 12 (1966); Avery v. Midland County, 390 U.S. 474 (1967); Hadley v. Junior College Dis- trict, 397 U.S. 50 (1970). ~~— 86 complainants alleged that the gross disparity in population among the four county commissioner districts of the county violated the equal protection clause of the Fourteenth Amend­ ment. One commissioner was elected from each district to the County Commissioners' Court which possessed general govern­ mental powers. The county had a total population of about 70,000--67,906 citizens living in the largest district, while the others had populations of 852, 414 and 828, respectively. The Supreme Court of Texas had held that the work done by the County Commissioners' Court "disproportionately concerns the rural areas" and that such factors as "the number of qualified voters, land areas, geography, miles of county roads, and taxable values" could justify apportioning on bases other than that of "substantially equal population." The U.S. Supreme Court, however, ruled that this mal­ apportionment violated the Fourteenth Amendment. The Court held that the actions of local government are actions of the state and that when a state delegates lawmaking power to local governments and provides for the election of local officials from districts specified by statute, ordinance, or local charter, the state "must insure that those who are qualified to vote have the right to an equally effective voice in the election process."211 The dissenters, Justices

211Avery v. Midland County, 390 U.S. 474, 480 (1967). 87 Harlan, Stewart, and Fortas, disagreed with Justice White's majority opinion on its merits. All argued that it was irresponsible for the Court to extend the "one man, one vote" principle to the realm of local government. Justice Harlan launched his dissent on the merits in Avery with the fol­ lowing attack. . . . I consider this decision, which extends the state apportionment rule of Reynolds v. Sims, to an estimated 80,000 units of local government throughout the land, both unjustifiable and ill-advised. I continue to think that these adventures of the Court in the realm of political science are beyond its constitutional powers, for reasons set forth at length in my dissenting opinions in Reynolds. . . . However, now that the Court has decided otherwise, judicial self- discipline requires me to follow the political dogma now constitutionally embedded in consequence of that deci­ sion. I am not foreclosed, however, from remonstrating against the extension of that decision to new areas of government. At the present juncture I content myself with stating two propositions which, in my view, stand strongly against what is done today. The first is that the 'practical necessities' which have been thought by some to justify the profound break with history that was made in 1962 by this Court's decision in Baker v. Carr are not present here. The second is that notwithstanding Reynolds the 'one man, one vote' ideology does not pro- vide an acceptable formula for structuring local govern­ mental units.212

In a more recent case, the Supreme Court reversed a decision of the Missouri Supreme Court which held that the "one man, one vote" rule was inapplicable to a Missouri statutory apportionment plan under which fifty percent of the trustees of a consolidated junior college district were

212Ibid., pp. 487-88. 88 elected from a subdistrict containing sixty percent of the district's total school-age population.213 The opinion of Justice Black expressed the view of five members of the Court in holding that (1) since the trustees were elected officials who exercised general governmental powers over the entire district, "one man, one vote" rule was applicable, so as to require the state, under the equal protection clause of the Fourteenth Amendment, to apportion the trustees, according to population on an equal basis as far as practicable, and (2) the apportionment scheme involved in the case did not suffic­ iently comply with the "one man, one vote" rule. That the full course of the interpretation of this principle and the scope of its application across the polit­ ical spectrum have yet to be determined is emphatically sug­ gested by the dissent of Justice Harlan, in which Chief Jus­ tice Burger and Justice Stewart joined. They disagreed with (1) the establishment of the "one man, one vote rule," (2) the extension of its application to local government units serving specialized functions, and (3) the Court's conclusion that the apportionment involved in the case did not suf­ ficiently comply with the "one man, one vote rule."21" The Court was also" criticized for failure to give any meaningful

213Hadley v. Junior College District, 397 U.S. 50 (1970). 21"lbid., p. 59. 89 guidelines as to which nonpopulation interests could or could not be legitimately considered by a legislature in devising an apportionment scheme for a local, specialized unit of government. Justice Harlan's dissenting opinion in Hadley, filed in the penultimate year of his tenure as a Supreme Court Justice, is worthy of being briefly quoted for its illustra­ tion of his persistent opposition to the "one man, one vote" principle, yet at the same time, he displays his adherence to being bound by precedents under the doctrine of stare decisis. Today's decision demonstrates, to a degree that no other case has, the pervasiveness of the federal judicial intrusion into state electoral processes that was unleashed by the 'one man, one vote' rule of Reynolds v. Sims. Reynolds established that rule for the apportionment of state legislatures, thereby denying States the right to take into account in the structuring of their legisla­ tures any historical, geographical, economic, or social considerations, or any of the many other practical and subtle factors that have always been recognized as play­ ing a legitimate part in the practice of politics. And today, the Court holds the 'one man, one vote' rule applicable to the various boards of trustees of Missouri's junior college system, and the case forebodes, if indeed it does not decide, that the rule is to be applied to every elective public body, no matter what its nature. While I deem myself bound by Reynolds and Avery --despite my continued disagreement with them as constitu­ tional holdings, I do not think that either of these cases, or any other in this Court, justifies the present i • • 2 1 5 decision.

215Ibid., pp. 59-60, 63, 70. 90 The importance of ensuring flexibility in the organ­ ization of specialized units of government, and the uncertainty whether the rule announced today will further any important countervailing interest, convince me that the Court should not proceed further into the political thicket than it has already gone in Avery. The facts of this case afford a clear indication of the extent to which reasonable state objectives are to be sacrificed on the altar of numerical equality. We are not faced with an apportionment scheme that is a histor­ ical relic, with no present-day justification, or one that reflects the stranglehold of a particular group that, having once attained power, blindly resists a redistribu- t i on.... It seems to me that beneath the surface of the Court's opinion lie unspoken answers to these and other similar questions, questions that I can characterize only as matters of political judgment. The Court's adoption of a rigid, mathematical rule turns out not to have saved it from having to balance and judge political considerations, concluding that one does merit some weight in an appor­ tionment scheme while another does not. The fact that the courts, rather than the legislatures, now are the final arbiters of such matters will continue, I fear, after the present decision to be the inevitable conse­ quence of the shallow approach to the Equal Protection Clause represented by the 'one man, one vote' theory. The Court could at least lessen the disruptive impact of that approach at the local level by approving this rela­ tively minor divergence from strict equality on the ground that the legislature could reasonably have concluded that it was necessary to accomplish legitimate state interests.

I would affirm the judgment of the Supreme Court of Missouri. What our Court has done today seems to me to run far afield of the values embodied in the scheme of government ordained by the Constitution. As to another of the "thorns" identified by Professor Dixon, the Court has refused to use its powers to attempt equalization of votes in the Presidential Electoral College 91 system,216 a national counterpart of the Georgia county-unit system which fell early to "one man, one vote."217 Doubt­ less, implementing voter equality at the Presidential level will require a constitutional amendment calling for direct popular election. Once this is accomplished, the United States Senate will be the only legislative body outside of the fold of "one man, one vote." The constitutional provi­ sion controlling representation in the Senate is expressly made unamendable by the Constitution.218 The gerrymandering of districts and group voters has not yet been erased by the egalitarian sweep of "one man, one vote." Although, as elucidated earlier in this chapter, Gomillion v. Lightfoot219 pointed the way toward alleviating some racial gerrymandering by upsetting a legislative altera­ tion of municipal boundaries which was designed to fence out black voters, a majority of the Supreme Court, Harlan included, refused to act against congressional districting that ghettoized some New York districts into white and

2 x6 Williams v. Virginia State Board of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff'd, 393 U.S. 320 (1969); Delaware v. New York, 385 U.S. 895 (1966). 217Gray v. Sanders, 372 U.S. 368 (1963). 218U.S. Constitution, Article V ". . . no State, with­ out its Consent, shall be deprived of its equal Suffrage in the Senate." 219364 U.S. 339 (1960). 92 nonwhite constituencies.220 In the related problem area of multimember districts, there is an indication of some retreat from the full egalitarianism of Reynolds and a foreshadowing of return to differentiation according to rational factors other than people in the practice, if not the theory, of legislative apportionment.221 This is a development with which Justice Harlan concurs and support is"found for it in Justice Harlan's dissents in the reapportionment cases as shown in this study. Political equality requires as the ideal that every­ one be permitted to vote on an equal basis. Under this con­ cept a state may exclude persons from the franchise only upon a showing of a compelling interest, and even then only when the exclusion is the least restrictive method of achieving the desired purpose. The Warren Court performed this balanc­ ing task in a number of voter qualification cases in which the egalitarianism seen in the reapportionment cases was embraced by a majority of the Court. Thus, the poll tax qualification,222 exclusion of military residents,22.3

220Wright v. Rockefeller, 376 U.S. 52 (1964). 221See, e.g. Fortson v. Dorsey, 379 U.S. 433 (1965); Dusch v. Davis, 387 U.S. 112 (1967); Whitcomb v. Chavis, 403 U.S. 124 (1971). 222Harper v. Virginia State Board of Elections, 383 U.S. 663 (196TT 223Carrington v. Rash, 380 U.S. 89, 97 (1965) (Harlan, J., dissenting). 93 requirements that voters in school board elections be parents or property owners,22" and limiting voting on bond issues to property owners225 were all stricken because of the absence of any showing of compelling state interests. Briefly discussed here will be the Supreme Court's decision in the Harper case, with a focus on Justice Harlan's dissenting opinion. In Harper the Court struck down Virginia's poll tax, overruling Breedlove v. Suttles,226 and holding that state poll taxes are unconstitutional under the equal protection clause of the Fourteenth Amendment. The Court split six to three, with Justices Black, Harlan and Stewart dissenting. Petitioners, Virginia residents, claimed indi­ gency and a consequent inability to pay the tax. Hence, they argued, the tax resulted in an invidious discrimination between rich and poor, denying them the equal protection of the laws. In addition, they claimed that the tax was an impermissible burden on their free exercise of the vote, a fundamental right of political expression protected by the

22"Kramer v. Union Free School District, 395 U.S. 621 (1969). Justice Harlan joined with Justice Black in Justice Stewart's dissenting opinion at p. 634. 225Cipriano v. City of Houma, 395 U.S. 701 (1969). Justice Harlan, while adhering to his views expressed in dissent in Reynolds, Harper, and Avery, supra, considered himself bound by the Court's decisions in those cases, and concurred in the result. 226302 U.S. 277 (1937). 94 First Amendment. The federal government, as amicus curiae, made another argument: any tax on the franchise was uncon­ stitutional per se since it burdened a protected right and bore no rational relationship to the alleged benefit of assuring that only civic-minded persons went to the polls. The Court, through Justice Douglas, rested its deci­ sion on the equal protection ground urged by petitioners. The Court stated that, whatever the original understanding of the drafters of the Fourteenth Amendment, today "voter qualifications have no relation to wealth nor to paying or not paying this or any other tax." The First Amendment issue raised by petitioners was not reached by the Court, although Justice Douglas spoke repeatedly of the "fundamental" nature of the right to vote. In dissent, Mr. Justice Black reiterated his view that in recent cases the Court had been using a "natural- law-due-process formula" to strike down legislation that it disapproved, rather than interpreting the Constitution solely in accordance with the original intent of its framers. Justices Harlan and Stewart dissented separately, charging the majority with continuing the "highly subjective" approach of Reynolds v. Sims,227 where the Court had found the rule of "one-man, one vote" in state legislative

227377 U.S. 533 (1964). 95 apportionment similarily compelled by modern equal protec­ tion standards. All three dissenters found a rational basis in legitimate state policy for the requirement that a tax be paid as a prerequisite to voting, despite their professed dislike of such a qualification. Harlan argued that payment of a minimal poll tax might very well be thought to promote citizen responsibility by weeding out those who do not care enough about public affairs to pay a dollar or so a year for the exercise of the franchise. The Court failed to address itself to this aspect of the issue, simply asserting that pay­ ment of a fee as a measure of a voter's qualifications was a capricious or irrelevant factor. An unworthy factor, quite possibly, but as Justice Harlan demonstrated, not necessarily capricious or irrelevant. Harlan, whom Justice Stewart joined in a dissent, eschewed as contrary to federal values the political role being played by the Court. The final demise of state poll taxes, already totally proscribed by the Twenty-Fourth Amendment with respect to federal elections and abolished by the States themselves in all but four States with respect to state elections, is perhaps in itself not of great moment. But the fact that the coup de grace has been administered by this Court instead of being left to the affected States or to the federal political process should be a matter of continuing concern to all interested in maintaining the proper role of this tribunal under our scheme of govern­ ment. . . .228

228Harper v. Virginia State Board of Elections, 383 U.S. 663, 680-81 (1966. 96 Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process. It was not too long ago that Mr. Justice Homes felt impelled to remind the Court that the Due Process Clause of the Fourteenth Amendment does not enact the laissez-faire theory of society, Lochner v. New York. . . . The times have changed, and perhaps it is appropriate to observe that neither does the Equal Protection Clause of that Amendment rigidly impose upon America an ideology of unrestrained egali­ tarianism.22 9

In striking down Virginia's poll tax law the Court applied an egalitarian principle of our society that emerged long after the drafting of the clause under which the law was invalidated. For in 1869, when the Fourteenth Amendment was enacted, property requirements as a condition for voting were widespread. Nevertheless, as Justice Douglas said in Harper, "In determining what lines are unconstitutionally discriminatory we have never been confined to historic notions of equality. . . . Notions of what constitutes equal treat­ ment for purposes of the Equal Protection Clause do change." (Emphasis in original.)230

229Ibid., p. 685. 230Ibid., p. 669. 97 Again those hit hardest by the poll tax laws did not have effective recourse for elimination of the tax through the legislative process in which they could not participate. In Harper, then, as in the reapportionment cases, the majority of the Supreme Court believed that it was up to the undemo­ cratic Court to promote our democratic values, even though in doing so a conflict with the values of federalism would occur. This conflict and the tensions stemming from it will be seen in other constitutional arenas discussed in Chapters II and III.

Returning to Tocqueville, who was quoted at the begin­ ning of this chapter, he points out amid his general praise of American democracy in the 1830s that "it is generally believed in America that the existence and permanence of the republican form of government in the New World depends upon the existence and duration of the federal system."231 About a half century after Tocqueville another astute foreign observer, Lord Bryce, found the constitutional scheme of federalism in America essentially unchanged.232 A few years later, still another titled Englishman found in federalism a

23 Alexis de Tocqueville, Democracy in America, ed. by Phillips Bradley, I (New York: Alfred A. Knopf, 1945), pp. 158-59. 2 "James Bryce, The American Commonwealth, 3rd ed. rev. (New York: Macmillan, 1899), chap's. 27-30. 98 contribution toward freedom of a different kind than that suggested by Tocqueville. Lord Action wrote: Of all checks on democracy, federalism has been the most efficacious and congenial. . . . The Federal system limits and restrains sovereign power by dividing it, and by assigning to Government only certain defined rights. It is the only method of curbing not only the majority but the power of the whole people, and it affords the strongest basis for a second chamber, which has been found essential security for freedom in every genuine democracy.2 3 3 The activistic majority of the Supreme Court in the reapportionment and voting rights cases reviewed in this chapter saw the Court as the prime defender of all democratic processes, principles and institutions, as expressed in the following statement of Professor Eugene V. Rostow: One of the central responsibilities of the judiciary in exercising its constitutional power is to help keep the other arms of government democratic in their proce­ dures. The Constitution should guarantee the democratic legitimacy of political decisions by establishing essential rules for the political process. It provides that each state should have a republican form of govern­ ment. And it gives each citizen the political as well as the personal protection of the Bill of Rights and other fundamental constitutional guarantees. The enforce­ ment of these rights would assure Americans that legis­ lative and executive policy would be formed out of free debate, democratic suffrage, untrammeled political effort, and full inquiry.23"

2 "John Acton, History of Freedom (London: Macmillan, 1907), p. 98. 2 "Eugene V. Rostow, "The Democratic Character of Judicial Review," Harvard Law Review, 66 (December, 1952), 193, 210. 99 Professor H.B. Mayo, in his book on democratic theory, constructed in familiar terms a working definition of a democratic political system. In Mayo's words: . . . a democratic political system is one in which pub­ lic policies are made, on a majority basis, by repre­ sentatives subject to effective popular control at per­ iodic elections which are conducted on the principle of political equality and under conditions of political freedom.2 3 5 From the opinions of the majority of the Warren Court in the reapportionment and voting rights cases there can be found assumptions about democratic theory and a model of democracy as conceived in Mayo's definition. Similarly, Harlan's contrasting views on democracy and a model of some of its essential features emerge from the opinions he wrote in dissenting from the majority of the Court in the cases discussed in this chapter. The apportionment of legislative districts according to the Warren Court majority's criterion of population, rather than that of economic interest or traditional geo­ graphic boundary, represents a movement away from the Madi- sonian, balancing-of-interests model of democracy to one based on more majoritarian premises. In this model the Court does not rule out criteria other than population. For example, in Reynolds v. Sims the Court held that "A State may

235H.B. Mayo, An Introduction to Democratic Theory (New York: Oxford University Press, 1960), p. 70. 100 legitimately desire to maintain the integrity of various political subdivisions, insofar as is possible, and provide for compact districts of contiguous territory in designing a legislative scheme."236 However, the Court does make clear that other criteria are not to override the goal of "equal representation for equal numbers of people."237 The Warren Court's majoritarian model of democracy involves two major components: political equality and majority rule. In such a model political equality means simply that the preference of each person of the community must count equally, i.e. "one man, one vote." Majority rule means that the preference supported by the greater number of persons must be the one that becomes public policy. As Professor Robert A. Dahl has pointed out, the problem of the intensity with which preferences are held, coupled with the difficulty posed by the existence of more than two alterna­ tives from which to select public policy makes majoritarian democracy somewhat more complicated than it might first appear.238 In its majoritarian model the Court asserted its view as to who is being represented in legislative bodies.

236377 U.S. 533, 578 (1964). 2 "Wesberry v. Sanders, 376 U.S. 1, 14 (1964). 2 "Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), pp. 90-123. 101 Again, to quote from Chief Justice Warren's opinion for the majority in Reynolds v. Sims, Warren wrote: Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representa­ tive form of government, and our. legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.23 Thus, the Court's majoritarian model may be summarized by the following propositions: First, "legislators repre­ sent people, not trees or acres," and it is granted that no other conception could satisfy the condition of political equality. Second, "equal representation for equal numbers of people [is] the fundamental goal." And third, legislatures are "directly representative of the people." According to the Supreme Court, the test of whether or not the condition of majority rule is met is to be found in the political struc­ ture. This static view of majority rule can be criticized for its failure to give relatively little information about the dynamics of the political system. The structural test implicit in the Court's model deals only with potentials as to public policy. In other words the majoritarian model of democracy envisaged by the Court may be necessary for major­ ity rule but it is not sufficient. This raises questions

2"377 U.S. 533, 562 (1964). 102 about the political process that are beyond the scope of the issues addressed by the Court in the cases reviewed in this chapter. As we have seen, political equality was viewed by the activistic majority of the Warren Court as the mainspring of representative government and that this meant "one man, one vote." The Court said with regularity since Baker that there must be equal weight and equal representation for equal num­ bers of people in legislative bodies at all levels of govern­ ment. This posture expressed a high degree of commitment by the activists on the Court to the ideal of majoritarianism as a standard for representative government. Justice Harlan's view of past history and of contem­ porary America led him to the belief that political equality had never been implemented; that states had always weighted votes based upon geography and other rational interests, and that if the people wanted to change the system by which leg­ islative seats were apportioned and voter qualifications were determined, they had to work through the political processes in order to bring about the changes demanded. Harlan's normative assertions about the nature of representation eschew the notion that democracy demands numerical equality as a standard of political representation. As we have seen in the examinations of Harlan's opinions, his model of demo­ cracy permits departures from numerical political equality so long as there is a rational, not capricious, policy 103 established by the legislature for doing so. Harlan con­ tended that "Courts cannot decide at what point a valid apportionment plan becomes void--because the factors entering into such a decision are basically matters appropriate only for legislative judgment."2"° State legislatures, he main­ tained, "should determine what constitutes a balance between geographic and demographic models."2"1 Harlan's opinions exhibited a model that could be antimajoritarian if the leg­ islature rationally deemed it to be, and in this, he saw no violation of the equal protection clause of the Fourteenth Amendment. Harlan's opinions reflected his strong belief in the principles of federalism and separation of powers. Diffusion of power in the specific manner provided by the Constitution appeared to him to be the essence of the American system of government. He maintained that Supreme Court involvement in the apportionment controversy "saps the political process" and "encourages popular inertia;" it weakens the "fabric of federalism" and places in jeopardy the effectiveness of the Court. To undertake a role redolent of politics and peculiarly the province of the Congress and the state legis­ latures would be, in Harlan's view, needlessly to embroil

2"°Baker v. Carr, 369 U.S. 186, 337 (1961). 2"xIbid., p. 336. 104 the Court in a conflict with adversaries far more powerful than itself. Harlan's votes and opinions in the reapportion­ ment and franchise cases reviewed in this chapter reflect the high point of his commitment to the concept of judicial restraint as an instrument for the preservation of federalism and the Supreme Court's limited role in the American polity. Chapter II

FEDERALISM AND CRIMINAL PROCEDURE

Early in this century Winston Churchill voiced in the House of Commons of Great Britain a test of civilization that is found among the strands of the American criminal procedure revolution wrought by the Warren Court in the 1960s. Churchill, then Home Secretary, declared in a 1910 speech on prison reform in England: The mood and temper of the public in regard to the treat­ ment of crime and criminals is one of the most unfailing tests of civilization of any country. A calm and dis­ passionate recognition of the rights of the accused against the State, and even of convicted criminals > against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eager­ ness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punish­ ment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man —these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.2"2

More recently and succinctly, but expressing the same societal value judgment, Justice Walter V. Schaefer of the Supreme Court of Illinois declared in a 1956 Harvard Law

2"2Robert Rhodes James, ed., Winston S. Churchill: His Complete Speeches, 1887-1963, II (London: Chelsea House, 1974) , pp. 1589, 1598. 105 106 Review article that "The quality of a nation's civilization can be largely measured by the methods it uses in the enforce­ ment of its criminal law."2"3 Justice Robert Jackson, to whose seat on the Supreme Court Justice John M. Harlan was named at Jackson's death, wrote, "Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice. . . ."2',^ During the early part of Justice Harlan's tenure on the Court he voted with the majority for reversing a convic­ tion in a criminal case, and approved Chief Justice Warren's opinion that described the task of appellate courts in reviewing the trials of those convicted of crimes. Warren wrote: We are forced to resolve a conflict between two funda­ mental interests of society; its interest in prompt and efficient law enforcement, and its interest in prevent­ ing the rights of its individual members from being abridged by unconstitutional methods of law enforce­ ment. "5 The abhorrence of society to the use of involuntary con­ fession does not turn alone on their inherent untrust- worthiness. It also turns on the deep-rooted feeling

2"3Walter V. Schaefer, "Federalism and State Criminal Procedure," Harvard Law Review, 70 (November, 1956), 1-26, 26. 2""Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 224-225 (1953). 2"5Spano v. New York, 360 U.S. 315 (1959). 107 that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.2"6 One of the goals of the framers of the United States Constitution was to establish a government that was strong enough to enforce the law, yet not so strong as to threaten individual liberty. This objective pervades the Constitu­ tion. It is evident in the complicated system of checks and balances, in the division of powers between the national government and the state governments, in the separation of powers among the three branches of the federal government, and in the prohibitions that have been placed expressly upon national and state government actions. Of those amendments to the United States Constitution which comprise the historic Bill of Rights, four directly prohibit or limit the exercise of governmental power in the criminal process. These four—the Fourth, Fifth, Sixth, and Eighth Amendments--are the result of pre-Colonial and Colonial experience with governmental action in matters that involved the apprehension, prosecution and conviction of defendants. Historically, the standards required of federal law- enforcement authorities have been superior to those required of state and local governments. This was true in part

2"6Ibid., pp. 320-21. 108 because the Bill of Rights, with its panoply of specific protections afforded persons accused of crimes, was applied only to the national government for more than the first century of the Republic. A further reason was that the stan­ dards for federal prosecutions were fashioned under the Supreme Court's inherent powers to supervise the administra­ tion of justice in the lower federal courts. One of the great questions in the modern jurispru­ dence of civil rights is the extent to which the states are bound by a federal constitutional standard in their general criminal procedures. High in the lexicon of some of the judges who resisted the encroachment of federal standards in local law enforcement procedures is the value of federalism, the dominant theme of Justice Harlan's judicial universe and this dissertation. Harlan will be seen in this chapter as deeply troubled by the fear that overly strict constitutional supervision of state law enforcement by the Supreme Court would impede the evolution of new and more effective law enforcement methods and would dampen the state's sense of responsibility for policing its own standards. It was not until the 1930s that the Supreme Court, somewhat haltingly, began to accept the idea that some of the specific procedural rights protected against federal action by the Bill of Rights were also protected against state action by the Fourteenth Amendment. The problem then, and 109 to the present day, is to determine what those rights are and how they should be applied to limit the states. In 1937 in the landmark Palko case Justice Cardozo laid it down that the rights protected against state action were those prin­ ciples of justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "found to be implicit in the concept of ordered liberty."2"7 It will be seen in this chapter that Justice Harlan on many occasions rested his thinking in state criminal procedure cases on the principles eluciated by Cardozo in Palko. During the era of the Warren Court, particularly in the 1960s, the most striking and far-reaching development with respect to federalism and criminal procedure was the extent to which the Court used the Fourteenth Amendment to bring into effect against the states virtually all of the rights of accused persons contained in the Bill of Rights, including the gloss which had been put on them in federal criminal cases by the Court's decisions of over 175 years. This opening of the far-reaching umbrella of the Fourteenth Amendment for the protection of defendants being prosecuted in state courts was resisted by Justice Harlan, not because of any objection he had to the results reached in many of the cases, but rather because of his opposition to the erosion of

2"7Palko v. Connecticut, 302 U.S. 319, 325 (1937). 110 the principles of federalism in the process. This concern of Harlan will be made explicit in the portions of his opin­ ions presented in this chapter. Before turning to the period of Harlan's service on the Supreme Court and an explication of the leading criminal procedure cases selected for inclu­ sion in this chapter as bearing on federalism and judicial self-restraint, it will be helpful to take a historical look at the Bill of Rights and its evolving application to the states by the Supreme Court. The purpose of a bill of rights is the limitation of governmental power. It consists, typically, of a catalogue of proscriptions or prohibitions, forbidding certain kinds of governmental actions, as well as declaration of individ­ ual rights or immunities which governments are forbidden to violate. A bill of rights seeks, in short, to deal with the central problem of political science —a definition of the relation between the individual and the state. It aims at fixing rules for the never-ending struggle over where the power of rulers ends and where the freedom of the individual begins. In self-governing societies its function is to per­ mit a government strong enough for the effectuation of common purposes, as formulated by a majority of the people, yet sufficiently circumscribed in its authority to insure maximum diversity and development of individual potentialities. Ill The Bill of Rights of the U.S. Constitution estab­ lishes two different kinds of safeguards against arbitrary or oppressive governmental action. The first type of safe­ guard restricts the range of governmental power. It limits governmental action in certain substantive areas of public interest activity. Thus, the first article of the Bill of Rights —the First Amendment--declares that Congress shall make no law restricting individual freedom of conscience, expression and association.

The second kind of safeguard contained in the Bill of Rights concerns the ways in which the government is to operate in its relations with individuals. A number of articles--Amendments II through VIII--specify procedures which the government must follow in order to keep it from acting arbitrarily or capriciously or unfairly. These procedural provisions of the Bill of Rights are hardly less important than the substantive provisions. Justice Felix Frankfurter, Justice Harlan's contemporary restraintist example on the Supreme Court, once observed, "The history of liberty has largely been the history of observance of procedural safe­ guards."2"8

Justice Harlan's wide-flung strictures against the activism of the Warren Court revived the eighteen-century

McNabb v. United States, 318 U.S. 332, 347 (1943). 112 debate between Federalists and Anti-Federalists as to whether a bill of rights was a necessary supplement to the protec­ tion afforded by the division and limitation of powers under federalism. A few days before the Constitutional Convention adjourned, Mason and Gerry raised the question of adding a bill of rights to the Constitution. Mason argued: "It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours." But a motion to appoint a committee for the purpose of drafting a bill of rights was rejected.2"9 Even so, a number of states were reluctant to ratify the new Constitution without an express limitation on the authority of the national govern­ ment to exercise certain powers. It was not enough for the Constitution to grant the national government only such powers of sovereignty as were necessary to attain ends better secured by a national government than by the states individ­ ually, and to reserve to the states those powers of sover­ eignty affecting only the states and the people. This was the genesis of the Bill of Rights. The opponents of ratification made the absence of a bill of rights a major argument and some friends of the pro­ posed Constitution, such as Jefferson, strongly urged

2"9Max Farrand, ed., The Records of the Federal Con­ vention of 1787, rev. ed., 2 (New Haven: Yale University Press, 1937), pp. 5 87-88.. 113 amendment to include a declaration of rights.250 Several state conventions ratified the Constitution while urging on the Congress to be convened the proposing of such amendment, 124 amendments in all being put forward by these states.251 After a series of proposals submitted by Madison, the House of Representatives adopted seventeen proposals and, of these, the Senate rejected two and reduced the remainder to twelve.252 These were then accepted by the House and sent on to the states where ten were ratified and the other two never received approval by the requisite number of states. There was support for the inclusion in the Constitu­ tion of restraints against encroachments by state governments upon rights of the peoples of the several states. Indeed, the Framers did include some restraints of this nature in the body of the Constitution itself. The prohibitions in Article I, Section 10, which forbid every state to pass any bill of attainder or ex post facto law or law impairing the obligation of contracts, are examples. Madison wanted more

250 In a letter to Madison, Jefferson asserted that . . . "a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on infer­ ence." Julian P. Boyd, ed., The Papers of Thomas Jefferson, 12 (Princeton: Princeton University Press), p. 440. 25 Bernard Schwartz, ed., The Bill of Rights: A Documentary History, 2 (New York: Chelsia House, 1971), pp. 627-980. 252Ibid., pp. 983-1167. 114 such restraints in the Constitution, as evidenced by his observation that ". . . some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper instead of securing some in the full extent to which republican principles would require, they limit them too much to agree with the common ideas of liberty."253 Among the proposed amendments rejected by the Senate was No. XIV, prophetic of the Fourteenth Amendment adopted after the Civil War, and pertinent to the debate as to the applicability of the Bill of Rights to the states. The rejected No. XIV read: "No State shall infringe the right of trial by Jury in criminal cases, nor the rights of con­ science, nor the freedom of speech, or of the press." Madi­ son thought that these restrictions on state power were "of equal, if not greater importance than those already made in Article I, Section 10."25" Indeed, he "conceived this to be the most valuable amendment in the whole list. If there was any reason to restrain the Government of the United States

2 "Annals of Congress, I (Washington, D.C: Gales § Seaton ed., 1834), p. 439. 25"lbid., p. 440. ' 115 from infringing upon those essential rights, it was equally necessary that they should be secured against the State Governments.2 55 In spite of the rejection of the amendment which would have curbed the power of the states, the contention that the Bill of Rights--or at least the first eight — was applicable to the states was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning in 1833 with the opinion of Chie'f Justice John Marshall in Barron v. Baltimore256 the argument was consistently rejected. In the Barron case the City of Baltimore made street improvements which destroyed the commercial use of a wharf. The owner of the wharf sought damages from the City. The Maryland Court of Appeals held that he was not entitled to any. The wharf owner contended in the United States Supreme Court that the Maryland judgment violated the provi­ sion of the Fifth Amendment, "nor shall private property be taken for public use, without just compensation." That

255Ibid., p. 775. 2567 Pet. (32 U.S.) 243 (1833). See also, Living- ton's Lessee v. Moore, 7 Pet. (32 U.S.) 469 (1833); Permoli v. First Municipality, 3 How. (44 U.S.) 589, 609 (1845) ; F~ox v. Ohio, 5 How. (46 U.S.) 410 (1847); Smith v. Maryland, 18 How. (59 U.S.) 71 (1855); Withers v. Buckley, 20 How. (61 U.S.) 84 (1858); Pervear v. Massachusetts, 5 Wall. (72 U.S.) 475 (1867); Twitchell v. Commonwealth, ~7~Wall. (74 U.S.) 321 (1969). 116 provision, the owner argued, "being in favour of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States." Marshall thought the argument was "not of much diffi­ culty." The Bill of Rights, he said, did not operate against state, but only federal, power. The federal Consti­ tution, Marshall went on, . . . was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restric­ tions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best cal­ culated to promote their interests. The powers they con­ ferred on this government were to be exercised by itself; and the limitations on powers, if expressed in general terms, are naturally and, we think, necessarily applic­ able to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

Despite the Supreme Court's unanimous holding in Barron, and its progeny, the enduring vitality of natural law concepts encouraged renewed appeals for judicial protec­ tion through application of the Bill of Rights.258

2 "Barron v. Baltimore, 7 Pet. (32 U.S.) 243, 247 (1833). 2 "Thus, Justice Miller for the Court in Loan Associ­ ation v. Topeka, 20 Wall. (87 U.S.) 655, 662-63 (1875): "It must be conceded that there are . . . rights in every free 117 After the Civil War, potentially significant limita­ tions on state power over the individual were added to the federal Constitution. The postbellum amendments contained important guarantees of individual rights, particularly in the Fourteenth Amendment's due process and equal protection clauses.259 However, following the ratification of the Four­ teenth Amendment, persons disadvantaged by state laws and policies resorted to the amendment for judicial protection, but to no avail. A sharply divided Supreme Court, refusing "to fetter and degrade the state governments," declined to become, under the Fourteenth Amendment's sweeping provisions, "a perpetual censor" of state activities." To do so, a five to four majority argued, would radically change "the whole theory of the relations of the State and Federal Govern­ ments."260 In a vehement dissent, Justice Field declared that the effect was to make the Fourteenth Amendment "a vain and idle enactment." State grants of "exclusive privileges" government beyond the control of the State. . . . There are limitations on [government] power which grow out' of the essential nature of all free governments. Implied reserva­ tions of individual rights, without which the social compact oould not exist, and which are respected by all governments entitled to the name." 259U.S. Constitution, Amendment XIV. ". . . nor shall any State deprive any person of life, liberty, or pro­ perty without due process of law; nor deny to any person with­ in its jurisdiction the equal protection of the laws." 260Justice Miller in Slaughter House Cases, 16 Wall. (83 U.S.) 36, 78 (1873). 118 to entrepreneurs, as in the Slaughter-House Cases, he argued, "are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal and impartial laws."261 In case after case, beginning in 1875 — each case pre­ senting the question as to a different criminal procedure guarantee262--the Supreme Court held that the guarantees in the federal Bill of Rights were not among "the privileges or immunities of citizens of the United States." The process was completed in a series of cases decided from 1887 to 1908 in which the Court time after time rejected efforts to per­ suade it that the federal list of rights in its entirety came within the privileges or immunities of the United States and were now protected against state abridgement by the Four­ teenth Amendment.263

261Ibid. , p. 111. 262See Walker v. Sauvinet, 92 U.S. 90 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S. 252 (1886) . 263See Spies v. Illinois, 123 U.S. 131 (1887). In re Kemmler, 136 U.S. 436 (1890) ; McElvaine v. Brush, 142 U.S. 15 5 (1891) ; O'Neil v. Vermont, 144 U.S. 323 (1892); Maxwell v. Dow, 176 U.S. 581 (1900); Twining v. New Jersey, 211 U.S. 78 (1908). 119 The first Justice John Marshall Harlan, grandfather of the subject of this study, took a position which will be seen in this chapter as diametrically opposed to that of his grandson some seventy years later. The grandfather, dissent­ ing in an 1892 case, O'Neil v. Vermont, argued "that since the adoption of the Fourteenth Amendment, no one of the funda­ mental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution."26" Earlier, in his dissenting opinion in Hurtado v. California,265 Jus­ tice Harlan expressed the view that all the fundamental rights secured by the Bill of Rights against infringement by the federal government are applicable to the states through the due process clause of the Fourteenth Amendment. Justice Harlan reasserted this view in his dissenting opinions in Maxwell v. Dow and Twining v. New Jersey, but it was not to make much headway until 1947 in Adamson v. California266 when a minority of four justices were marshalled behind Justice Black to support what can be called the total incorporation

26"0'Neil v. Vermont, 144 U.S. 323, 370 (1892). 265110 U.S. 516, 538 (1884) . 266332 U.S. 46 (1947) . 120 theory of the applicability of the Bill of Rights to the states. Although this theory has never commanded a majority of the Supreme Court it has been the subject of lively debate over the years. Justice Black believed that in the earlier cases the Supreme Court fell into error in failing sufficiently to con­ sult the history of the Fourteenth Amendment. He read this history as demonstrating that those who wrote the amendment intended to enfold the federal Bill of Rights within its commands. "My study of the historical events that culminated in the Fourteenth Amendment," he said, "and the expressions of those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights applic­ able to the States. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the consti­ tutional rule that case had announced."267 Justice Black reasserted his Adamson view in later cases, expressing the hope, never realized, that it would one day obtain a majority, e.g. see his concurring opinion in Gideon v. Wainwright.268

267Ibid., pp. 71-72. 268372 U.S. 335, 345 (1963). 121 Scholarly research stimulated by Justice Black's thesis challenged the validity of much of the history recited by him, and found in the debates in Congress and in the ratify­ ing conventions no support for his contention.269 Other scholars, going beyond the immediate debates, found in the abolitional constitutional thought of the period an influence that could have been felt by the architects of the Fourteenth Amendment. The research products of these scholars contain observations that all three parts of Section 1 of the Four­ teenth Amendment, privileges and immunities, due process, and equal protection, had long been in use as shorthand descrip­ tions for the principal provisions of the Bill of Rights.270 The controversy between those who urge that due pro­ cess incorporates the entire Bill of Rights and those who take a contrary view has been rendered all but academic. Under the "absorption," "selective incorporation" and "funda­ mental fairness" doctrines, the Supreme Court has held that virtually all of the criminal procedure safeguards of the

2 "Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law Review, 2 (December, 1949), 5-139; Stanley Morrison, "Does the Four- teenth Amendment Include the Bill of Rights?" Ibid., 140-73. 2 "Howard Jay Graham, "The Early Antislavery Back­ grounds of the Fourteenth Amendment," Wisconsin Law Review, (May, July, 1950), 479-507, 610-61; Howard Jay Graham, "Our 'Declaratory' Fourteenth Amendment," Stanford Law Review, 7 (December, 1954), 3-39; Jacobus Ten Broek, Equal Under Law (New York: Collier, 1965). 122 Bill of Rights271 are included within the due process required by the Fourteenth Amendment. This process seems to have had its beginnings in an 1897 case in which the Court, without mentioning the just compensation clause of the Fifth Amendment, held that the Fourteenth Amendment's due process clause forbade the taking of private property without just compensation.272 Then, in Twining v. New Jersey, the Court observed that "it is possible that some of the rights safe­ guarded by the first eight amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. ... If this is so, it is not because those rights are enumerated in the first eight amendments, but because they are of such nature that they are included in the conception of due pro­ cess of law."273 And in Gitlow v. New York, the Court said: "For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress--are among the

27 Criminal procedure provisions of the Bill of Rights that have not been applied to the states are: Fifth Amendment--Grand jury indictment, Hurtado v. California, 110 U.S. 516 (1884); Eighth Amendment--Bail, but see Schilb' v. Kuebel, 404 U.S. 357, 365 (1971); Excessive fines, but see Tate v. Short, 401 U.S. 395 (1971), in which the Court utilized equal protection to prevent automatic jailing of indigents when others can pay a fine and avoid jail.

272Chicago, B. 8, Q. Railroad v. City of Chicago, 166 U.S. 226 (1897). 273211 U.S. 78, 79 (1908) . 123 fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impair­ ment by the States."27" After quoting the language set out above from Twining v. New Jersey, the Supreme Court in 1932 said that "a consi­ deration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental char­ acter."275 The doctrine of this period was best formulated by Justice Cardozo in the Palko case, referred to earlier in this chapter. It will be remembered that Cardozo observed that the due process clause of the Fourteenth Amendment might proscribe a certain state procedure, not because the pro­ scription was spelled out in the Bill of Rights, but because the procedure "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental,"276 because certain proscriptions were "implicit in the concept of ordered liberty."277 The second Justice Harlan was a strong advocate of this approach to the

27"268 U.S. 652, (1925). Justice Harlan's views on the applicability of the First Amendment to the states are examined in Chapter III. 275Powell v. Alabama, 287 U.S. 45, 68 (1932). 276Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). 277Palko v. Connecticut, 302 U.S. 319, 327 (1937). 124 Fourteenth Amendment's due process clause, as will be illustrated by the excerpts from his opinions presented in this chapter. Before turning to Harlan's opinions, it is to be pointed out that the process of "absorption" into due process of "fundamental" rights which happened to be specifically named in the Bill of Rights came to be supplanted by a doc­ trine which for a time coexisted with "absorption," the doc­ trine of "selective incorporation."278 This doctrine holds that the due process clause of the Fourteenth Amendment incorporates the text of certain of the provisions of the Bill of Rights and the interpretations placed upon them by Supreme Court decisions in federal criminal cases, with the result that they are to be enforced against the states accord­ ing to the same standards applied to the federal govern­ ment.279 A hallmark of the Warren Court, on which Justice Harlan served for 14 of his 16 years as a Supreme Court Jus­ tice, was its acceleration of the extension of nearly all

Louis Henkin, "Selective Incorporation in the Fourteenth Amendment," Yale Law Review 73 (November, 1963), 74-88. 279See, e.g. Mapp v. Ohio, 367 U.S. 643 (1961); Mallow v. Hogan, 378 U.S. 1 (1964); Klopfer v. North Carolina, 386 U.S. 213 (1967) ; Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 (1970). 125 the Bill of Rights criminal procedure guarantees to the states and the broadening of the substantive content of the guarantees themselves. The passion and persistence of Harlan's opposition to this nationalization of criminal pro­ cedure and, in particular, the process by which it was achieved by the Warren Court is expressed by him in the cases discussed in the remainder of this chapter. An overview of his position is found in Williams v. Florida,280 a 1970 case decided near the end of Harlan's Supreme Court career in which he concurred in the result but took issue with the reasoning of the majority in affirming the conviction of a Florida bank robber. Harlan asserted, The recent history of constitutional adjudiction in state criminal cases is the ascendancy of the doctrine of ad hoc ('selective') incorporation, an approach that absorbs one-by-one individual guarantees of the federal Bill of Rights into the Due Process Clause of the Four­ teenth Amendment, and holds them applicable to the States with all the subtleties and refinements born of history and embodied in case experience developed in the context of federal adjudication. Thus, with few exceptions the Court has 'incorporated,' each time over my protest, almost all the criminal protections found within the first eight Amendments to the Constitution, and made them 'jot-for-jot and case-for-case' applicable to the States.

... it is my firm conviction that 'incorporation' distorts the 'essentially federal nature of our national government,' . . . one of whose basic virtues is to leave ample room for governmental and social experimentation in a society as diverse as ours, and which also reflects the view of the Framers that 'the security of liberty in America rested primarily upon the dispersion of

°399 U.S. 78 (1970) . 126 governmental power across a federal system."... The Fourteenth Amendment tempered this basic philosophy but did not unstitch the basic federalist pattern woven into our constitutional fabric. The structure of our Govern­ ment still embodies a philosophy that presupposes the diversity that engendered the federalist system. . . . flexibility for experimentation in the admin­ istration of justice should be returned to the States here and in other areas that now have been swept into the rigid mold of 'incorporation.' . . . It is time, I submit, for this Court to face up to the reality implicit in today's holdings and recon­ sider the 'incorporation' doctrine before its leveling tendencies further retard development in the field of criminal procedure by stifling flexibility in the States and by discarding the possibility of federal leadership by example.28 1 Justice Harlan argued for the application of a dual standard test of due process in federal and state criminal cases.282 In this way he not only sought to preserve the values of federalism but, at the same time, to avoid watered- down federal standards that might result in order to give the states more leeway in the operation of their criminal justice systems.283 Harlan's concern about a developing dilution of federal standards became a reality after his service on the

281Ibid., pp. 130-31, 138. 2 "Justice Harlan first took this dual standard posi­ tion in Roth v. United States, 374 U.S. 476, 496 (1957), where, concurring in part and dissenting in part, he argued that the First Amendment imposed stricter limitations upon federal regulation of obscenity than the due process clause imposed on the states. This position is explored at length in Chapter III. 3Williams v. Florida, 399 U.S. 78, 129-30 (1970). 127 Court ended, at least in regard to issues surrounding the interpretation of the jury trial guarantee of the Sixth Amendment.2 8" Justice Harlan's objections to the incorporation, selective or total, of the criminal procedural safeguards of the Bill of Rights by the due process clause of the Four­ teenth Amendment will now be explored in some depth. The approach will be that of presenting selected leading cases in which the Supreme Court was faced with the task of deter­ mining the applicability to the states of various provisions of the Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution. The. Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War­ rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The constitutional guaranty against unreasonable searches and seizures marks the right of privacy as one of the unique values of our civilization. The security of one's privacy against arbitrary intrusion by the police is at the core of the Fourth Amendment and basic to a free society. The rights of privacy and personal security protected by the

"See e.g. Apodaca v. Oregon, 406 U.S. 404 (1972). 128 Fourth Amendment are of the essence of constitutional liberty, and the guaranty of them is as important and as imperative as are the guarantees of other fundamental rights of the individual citizen. The security of persons and pro­ perty under the Fourth Amendment remains a fundamental value which law enforcement officers must respect. The Fourth Amendment forbids every search that is unreasonable, and pro­ tects those suspected or known to be offenders as well as the innocent. A motivating factor behind the Declaration of Inde­ pendence was the use of "general warrants," under which cus­ toms officials were given blanket authority to conduct general searches for goods imported into the Colonies in violation of the tax laws of the Crown. The Fourth Amendment's require­ ment that a warrant particularly describe the place to be searched, and the persons or things to be seized, repudiated these general warrants and made general searches impossible. It has been said that one of the early causes of the American Revolution was the objection of Americans, particularly in Massachusetts, to the generality of the writs of assistance, the opposition to which was led by John Adams and James Otis in the eighteenth century. Adams, in opposition to the writs of assistance, drafted the Fourteenth Article of the Declar- ation of Rights in the Constitution of Massachusetts of 1780, which is similar to the Fourth Amendment to the Constitution 129 of the United States. Consequently, the Fourth Amendment was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of the sanctity of a man's home and the privacies of life, from searches under indiscriminate, general authority.

The Bill of Rights of the U.S. Constitution was fashioned against the background of knowledge that unrestricted power of search and seizure can be an instrument for stifling liberty of expression. Thus, the requirement for a search warrant is not a mere formality but is a great constitutional principle which has its roots deep in English and colonial history. Although there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of its abstract prohibition against "unreasonable searches and seizures" into workable guidelines for the decision of parti­ cular cases is a difficult task which has for many years divided the Supreme Court of the United States. Several possible methods of enforcement of this right have been sug­ gested over time, once it has been decided that a particular search and seizure was unconstitutional. However, the Supreme Court has settled, not without dissent, on only one method, the exclusionary rule, as an effective means to make real the right guaranteed by the amendment. 130 Theoretically, there are several alternatives to the exclusionary rule. Officers who carry out an illegal search and seizure are subject to criminal prosecution, internal departmental discipline, a tort action for damages under state statutory or common law for false arrest and invasion of privacy and, more recently, a statutory civil rights suit in federal court for damages and other remedies. The results of these recourses have been so lacking in effective relief and deterrence of police officers from violating the amendment that the Supreme Court has emphasized exclusion in criminal trials of illegally seized evidence as the only effective enforcement method.285 The series of cases resulting in the Supreme Court's adopting the exclusionary rule reached a climax in 1961, in Mapp v. Ohio,286 when, over the vigorous dissent of Justice Harlan, a majority of the Court extended the exclusionary rule to state criminal cases. A brief look back at the historical antecedents of Mapp will be helpful to its under­ standing.

2 "Richard A. Edwards, "Criminal Liability for Unreasonable Searches and Seizures," Virginia Law Review, 41 (June, 1955), 621-32; Herman Goldstein, "Police Policy Form­ ulation: A Proposal for Improving Police Performance," Michigan Law Review, 65 (April, 1967), 1123-46; Caleb Foote, "Tort Remedies for Police Violations of Individual Rights," Minnesota Law Review, 39 (April, 1955), 493-516. 6367 U.S. 643 (1961). 131 Constitutional exclusion of evidence had its begin­ ning in Boyd v. United States,287 which involved not a search and seizure but a compulsory production of business papers which the Supreme Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment's self- incrimination provision to the Fourth Amendment's protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incrim­ inate himself by producing it. The Boyd case was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common-law rule that evidence was admissible however acquired.288 The consequence was that for a time the command of the Fourth Amendment served principally as an appeal to the conscience of the pol­ ice officer who might be tempted to search or seize without warrant or beyond the reasonable limits of a warrant. Evi­ dence that was the product of an excess of zeal289 or even

287116 U.S. 616 (1886). 2 "Adams v. New York, 192 U.S. 585 (1904). Since the case was appealed from a state court and concerned a search by state officers, it could have been decided simply by hold­ ing that the Fourth Amendment was inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). 2 "The most celebrated state court decision in oppo­ sition to the exclusionary rule is People v. Defore, 242 N.Y. 13 (1926) , in which then Judge Cardozo made his oft-quoted observation that a guilty defendant should not be released "because the constable has blundered." Ibid., p. 21. 132 outrageous police misconduct290 was admissible in federal courts until 1914, 28 years after Boyd, and in many state courts until Mapp was decided in 1961. In 1914, in Weeks v. United States,291 the common- law view was rejected and an exclusionary rule propounded, Weeks was convicted of the use of the mails to transport lottery coupons. State police officers had searched his home without a warrant while Weeks was at work, giving the evidence seized to a federal marshal. Aroused by what he saw, the federal marshal returned and carried out his own search, again without a warrant. Before trial, Weeks filed a peti­ tion to have his effects returned. The petition was denied. In holding the evidence inadmissible, the Supreme Court, speaking through Justice Day, noted that a court had the power to inquire into the source of any evidence it may receive as a prerequisite to its power to exclude evidence. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible'with its guarantees. "The ten­ dency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and

29"Irvine v. California, 347 U.S. 128 (1954), involved a brazen perversion of law by police officers who made a key to the home under surveillance and entered the house on several occasions to install microphones in a bed­ room and closet. 291232 U.S. 383 (1914). 133 enforced confessions . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights."292 Since Weeks, the Supreme Court uniformly has held that evidence seized by federal officers--and since 1960 by state officers—in violation of the Fourth Amendment prohibition against unreasonable search and seizure is inadmissible m federal court. Whether this was constitutionally required — and by which provision or provisions--has never been entirely clear. It has been referred to in the cases both as a "constitutional right" and a rule of evidence deriving from the "supervisory powers" of the Court over the federal judi­ ciary system. At any rate, it has been called most often the federal exclusionary rule, or the Weeks rule. In 1949, in Wolf v. Colorado,29 3 the Supreme Court held that the Fourteenth Amendment did not require the state courts to adopt the exclusionary rule. The majority declared for the first time that the "security of one's privacy against arbitrary intrusion by police--which is at the core of the Fourth Amendment" was "implicit in the concept of

292Ibid., p. 392. 293338 U.S. 25 (1949). 134 ordered liberty,"29" the test of a substantive right pro­ tected by Fourteenth Amendment due process; and were a state "affirmatively to sanction it" (such as in a statute author­ izing a blanket search warrant), it would be a violation of due process. In an opinion by Justice Frankfurter, however, the Court held in Wolf that the exclusionary rule was not enforceable against the states--that the exclusionary rule was not "implicit in the concept of ordered liberty."295 Looking to whether the practice of excluding illegally obtained evidence was "enshrined in the history ... of English-speaking people,"296 Justice Frankfurter cited num­ erous authorities, including the practices of the United Kingdom and the various states themselves, for the proposi­ tion that the exclusion of evidence, albeit illegally obtained, was not generally practiced except in the federal system.297 Accordingly, it was not required by due process. Once again the Supreme Court rejected the argument that the Fourteenth Amendment was "shorthand" for the Bill of Rights and repeated the doctrine of the Palko case, Frankfurter saying: "Due process of law thus conveys neither formal nor

29"lbid., p. 27. 295Ibid., p. 28. 296Ibid., p. 29. 297Ibid., pp. 29-30. 135 fixed narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society."298 It was in Mapp v. Ohio,2" in 1961, that the Supreme Court overruled the doctrine of Wolf which permitted evi­ dence obtained by an unreasonable search and seizure by local police officers to be introduced in a state court prosecution for a state crime. The facts which gave rise to the Mapp case are notable. Parsed down they were as follows: Three of the local police in Cleveland, Ohio, arrived at Mrs. Mapp's door and told her they had "confidential" information that a person suspected of a recent bombing was hiding in her home. Mapp, taken aback, asked further about their inquiry, but was only told they wanted to question her. She called her attorney and he told her to let the officers in only if they had a valid search warrant. The reinforced police officers then surrounded the house and prevented her attorney, who had arrived at the scene, from getting through to talk to her. One of the police officers told the attorney that he had a search warrant, but refused to reveal it. The officers then

298Ibid., p. 27. 299367 U.S. 643 (1961). Earlier, in Rochin v. Calif­ ornia, 342 U.S. 165 (1952), the Supreme Court had modified the Wolf rule by holding that if the search involved "conduct that shocks the conscience," the evidence was inadmissible. In Rochin the evidence was obtained by pumping the accused's stomach. 136 broke into the house, waving a piece of paper, purportedly a search warrant, which Mapp grabbed and thrust in the bosom of her dress. The officer who originally held the "warrant" retrieved it and had her handcuffed to a bed. No warrant was ever produced in court. The officers thoroughly searched Mapp's entire home, ransacking through every room and piece of furniture. All that they found in their search was some obscene material in a trunk in the basement. Mapp was convicted in the Common Pleas Court for possession of the obscene material.300 She appealed to the Supreme Court of Ohio, principally on the grounds that the obscenity statute and the search of her home violated her constitutional rights as protected by the First, Fourth and Fourteenth Amendments. That court affirmed her conviction301 but was reversed by the United States Supreme Court.302 On the writ of certiorari to the Supreme Court, the main question presented by the appellant was not whether Wolf should be overruled,303 but whether the Ohio statute under which Mapp

300Mapp was convicted under Ohio Rev. Code Sec. 2905.34 which provided in part that "No person shall know- ingly . . . have in his possession or under his control an obscene, lewd, or lascivious book [or] . . . picture. . . ." This statute has since been revised to eliminate mere know­ ing possession or control of such material from Ohio's defin­ itions of crimes. 301170 Ohio St. 427, 166 N.E. 2d 387 (1960). 3"Mapp v. Ohio, 367 U.S. 643 (1961). 303Ibid., pp. 672-73, n. 4 (Harlan, J., dissenting). 137 was convicted violated the First Amendment. Indeed, as Jus­ tice Harlan noted in his dissent, the issue of the continued vitality of Wolf was barely even raised, briefed or argued by the appellant. Nevertheless, the exclusionary rule was extended to the states and Wolf was thereby put to rest, even if not given a decent burial. In support of its decision, the Court, in a majority opinion by Justice Clark,30" stated: Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise . . . the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evi­ dence as not to merit this Court's high regard as a free­ dom 'implicit in the concept of ordered liberty.' . . .305

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States ... we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Con­ stitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled,

3""Justice Clark's position was forcast by him in 1954, when in his concurring opinion in Irvine y. California, 347 U.S. 128, 138 (1954), he stated that if he had been on the Court when Wolf was decided he would have "applied the doctrine of Weeks v. United States ... to the states." 3 0 5 Mapp v. Ohio, 367 U.S. 643 (1961) 138 and, to the courts, that judicial integrity so necessary in the true administration of justice. °6 The asymmetry Wolf introduced into American criminal law was replaced by a single standard. The double "plimsoll" line of due process for illegally obtained physical evidence was replaced by a single line. The first line established was the means used to obtain the evidence with a distinction made between state and federal officers. Acts of federal officers violative of the Fourth Amendment v/ould prevent the introduction of the evidence. These same acts necessarily violate the Fourteenth Amendment if committed by state officers. However, the court did not hold to this line. The second line regarding the use of evidence was established. Heretofore, the use had not been considered in violation of the Fourteenth Amendment, that is, falling below the second plimsoll line, unless the methods of obtaining the evidence were of a special kind or amounted to a gross violation of individual rights. Now only one line remains below which "due process" must fall before there has been a violation of constitutionally protected rights.

Mapp raised the old issue of whether the exclusion­ ary rule is only a rule of evidence promulgated under the Court's supervisory power over administration of criminal procedures in the lower federal courts or whether the rule

"6Ibid., p. 660. 139 has acquired constitutional stature in the context of the Fourth Amendment and can be applied to state proceedings through the due process clause of the Fourteenth Amendment. In the instant case the Court takes the position that the Fourth Amendment's guaranty against unreasonable search and seizure is enforceable against the states through the Four­ teenth Amendment. It follows from the decision in Mapp that an individual has the right not to be convicted in any court, federal or state, on the basis of evidence which has been obtained in violation of Fourth Amendment guarantees. Justice Harlan's dissenting opinion, with the support of Justices Frankfurter and Whittaker, asserts the two major themes of this study, federalism and judicial self-restraint. He also articulates several of the minor themes of his judi­ cial philosophy, including stare decisis and principled con­ stitutional adjudication. This is illustrated in the follow­ ing excerpts from Harlan's dissenting opinion in Mapp, one of his major efforts in the criminal procedure field. In overruling the Wolf Case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it. From the Court's statement of the case one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would of course face us with the need for re-examining Wolf. However, such is not the situation. 140 For, although that question was indeed raised here and below among appellant's subordinate points, the new and pivotal issue brought to the Court by this appeal is whether Section 2905.34 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material, and under which appellant has been convicted, is consistent with the rights of free thought and expres­ sion assured against state action by the Fourteenth Amendment. [Emphasis in original.] That was the princi­ pal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's jurisdictional State­ ment, and which was briefed and argued in this Court. In this posture of things, I think it fair to say that five members of this Court have simply ' reache.d out' to overrule Wo1f. With all respect for the views of the majority, and recognizing that stare decisis carries dif­ ferent weight in Constitutional adjudication than it does in non-constitutional decision, I can perceive no justi­ fication for regarding this case as an appropriate occasion for re-examining Wolf. . . . The occasion which the Court has taken here is in the context of a case where the question was briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf without full-dress argument is aggra­ vated by the circumstance that that decision is a compar­ atively recent one (1949). ... I would think that our obligation to the States, on whom we impose this new rule, as well as the obligation of orderly adherence to our own processes would demand that we seek that aid which ade­ quate briefing and argument lends to the determination of an important issue. At the heart of the majority's opinion in this case is the following syllogism: (1) the rule excluding in federal criminal trials evidence which is the product of an illegal search and seizure is 'part and parcel' of the Fourth Amendment; (2) Wolf held that the 'privacy' assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amend­ ment; and (3) it is therefore "logically and constitution­ ally necessary" that the Weeks exclusionary rule should also be enforced against the States. This reasoning ultimately rests on the unsound pre­ mise that because Wolf carried into the States, as part of 'the concept of ordered.liberty' embodied in the Four­ teenth Amendment, the p.rinciple of 'privacy' underlying the Fourth Amendment, ... it must follow that whatever 141 configurations of the Fourth Amendment have been devel­ oped in the particularizing federal precedents are like­ wise to be deemed a part of 'ordered liberty,' and as such are enforceable against the States. For me, this does not follow at all. It cannot be too much emphasized that what was recog­ nized in Wolf was not that the Fourth Amendment as such is enforceable against the States as a facet of due pro­ cess, . . . but the principle of privacy 'which is at the core of the Fourth Amendment.' [Emphasis in orig­ inal. ] What the Court is now doing is to impose upon the States not only federal substantive standards of 'search and seizure' but also the basic federal remedy for viola­ tion of those standards. For I think it entirely clear that the Weeks exclusionary rule is but a remedy which, by penalizing past official misconduct, is aimed at deterring such conduct in the future. The preservation of a proper balance between state and federal" responsibility in the administration of crim­ inal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary widely from State to State. . . . For us the ques­ tion remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or another. In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own pecu­ liar problems in criminal law enforcement.307 . . . in requiring exclusion of an involuntary state­ ment of an accused, we are concerned not with an appro­ priate remedy for what the police have done, but with something which is regarded as going to the heart of our concepts of fairness in judicial procedure. I think the coerced confession analogy works strongly against what the Court does today. I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects

307Ibid., pp. 672-81. 142 the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.308 Justice Harlan espoused a sound principle of adjudi­ cation when he asserted that an important change in consti­ tutional doctrine should be preceded by full-dress argument, insuring the most sober kind of judicial determination, especially when the prevailing rule has been laid down com­ paratively recently and the issue is one of some intricacy. Even more, as Harlan points out, it seems unfortunate to decide a constitutional question of such moment when the case might have been disposed of by reference to another clearer question that had been fully briefed, namely, the First Amend­ ment question. Cases involving illegally obtained evidence are common enough, and if the Court was resolved to over­ throw Wolf it would not have had to wait long for a more felicitous opportunity.

Harlan's criticism of Justice Clark's opinion for five members of the Court in Mapp does not stop with the pro­ cedural. The Court's basic point was that Wolf recognized that the Fourth Amendment's right of privacy applied to the states and that it is -therefore anomalous not to apply the constitutionally derived Weeks rule, which excludes illegally

Ibid., pp. 684-86. 143 obtained evidence from federal trials, to the states as well. However, Harlan saw a need, not met in Justice Clark's opin­ ion, to answer at least three important questions: is the Weeks rule of constitutional origin or, rather, a rule of evidence imposed by the Supreme Court in pursuance of its power to supervise the federal judicial system? Was it the Fourth Amendment that was applied to the states in Wo1f, or the "principle of privacy," which might have a different mean­ ing in the Fourteenth than it has in the Fourth? Is it always anomalous that state courts are allowed more room for variation in their systems of justice than federal courts, or does the concept of federalism warrant just such leeway? Harlan makes it clear in Mapp and other cases reviewed in this chapter that, in his view, constitutionally ordained federalism permits diversity. At least, Harlan believed, each of the questions he raised deserved careful considera­ tion even if they were all to be answered as the Court answered them. Perhaps even if the questions were fully answered to Harlan's satisfaction the conclusion might still be that only the exclusionary rule can make the right to privacy real.

Another of Justice Clark's points was that we exclude involuntary confessions in state courts, and the exclusion of illegally seized evidence is analagous. But Justice Harlan attacked this argument by pointing to a crucial dif­ ference. Forced confessions are excluded because they may 144 infect the fairness of the trial itself, not because of something the police did before the trial. To admit such evidence would make the trial a farce; the strongest evi­ dence of innocence might be overborne by a confession that was coerced and thus quite possibly false. On the other hand, illegally obtained physical evidence is excluded, where it is, not because the trial has been rendered unfair, but to deter police from unconstitutional conduct. Harlan would argue that the Supreme Court has the authority thus to super­ vise the conduct of federal police, but under the federal system it has no such power to discipline the police of the "states.

To a large extent, Mapp v. Ohio marks the beginning of the Warren Court's accelerated federalization of state criminal procedure through the process of selective incorpor­ ation of the Bill of Rights into the Fourteenth Amendment. Although most observers would agree that the Wolf rule was a dismal failure, there is much to be regretted in the method and occasion the Supreme Court chose to announce its decision to overrule Wolf. All constitutional questions should be thoroughly argued and considered. This is particularly true, as Justice Harlan pointed out, when the continued validity of an accepted constitutional doctrine that involves delicate problems of federalism is being decided. The conclusion is unavoidable that in Mapp the Court acted, not like nine, but like five-wise men. 145 In 1963, in Ker v. California,309 the Supreme Court took the next step after Mapp, holding that the question of reasonableness of a state search and seizure is governed by federal constitutional standards, as expressed in the Fourth Amendment and the decisions of the Supreme Court applying, that amendment. On the other hand, Justice Harlan, although concurring in the result, continued to express the view that state searches and seizures should be judged by the more flexible concept of "fundamental" fairness, or rights "basic to a free society," embraced in the due process clause of the Fourteenth Amendment. Excerpts from Harlan's concurring opin­ ion elaborate his reasoning, a ratio decidendi none of the other eight justices agreed with.

Heretofore there has been a well-established line of demarcation between the constitutional principles govern­ ing the standards for state searches and seizures and those controlling federal activity of this kind. Federal searches and seizures have been subject to the require­ ment of 'reasonableness' contained in the Fourth Amend­ ment, as that requirement has been elaborated over the years in federal litigation. State searches and seizures, on the other hand, have been judged, and in my view properly so, by the more flexible concept of 'fundamental' fairness, or rights 'basic to a free society,' embraced in the Due Process Clause of the Fourteenth Amendment. Today this distinction in constitutional principle is abandoned. Henceforth state searches and seizures are to be judged by the same constitutional standards as apply in the federal system. In my opinion this further extension of federal power over state criminal cases, ... is quite uncalled for

309374 U.S. 23 (1963). 146 and unwise. It is uncalled for because the States are increasingly evidencing concern about improving their own criminal procedures, as this Court itself has recently observed on more than one occasion, and because the Fourteenth Amendment's requirements of fundamental fairness stand as a bulwark against serious local short­ comings in this field. The rule is unwise because the States, with their differing law enforcement problems, should not be put in a constitutional straitjacket and also because the States, more likely than not, will be placed in an atmosphere of uncertainty since this Court's decisions in the realm of search and seizure are hardly notable for their predictability. . . . And if the Court is prepared to relax Fourth Amendment standards in order to avoid unduly fettering the States, this would be in derogation of law enforcement standards in the federal system--unless the Fourth Amendment is to mean one thing for the States and something else for the Federal Govern­ ment.

I can see no good coming from this constitutional adventure. In judging state searches and seizures I would continue to adhere to established Fourteenth Amendment concepts of fundamental fairness. So judging this case, I concur in the result.310 Harlan's deep-felt opposition to the incorporation of the Fourth Amendment, with all its federal decisional "bag­ gage," into the Fourteenth Amendment was expressed to the very end of his Supreme Court service. In June, 1971, in Coolidge v. New Hampshire311 just three months before his retirement because of illness, he reiterated his concern for the values of federalism. Again, concurring in the result in this state case, but objecting to the rationale of the majority, Harlan said

310Ibid., pp. 44-46. 311403 U.S. 443 (1971). 147 From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncer­ tainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime. I would begin this process of reevaluation by over­ ruling Mapp v. Ohio . . . and Ker v. California. . . . The former of these cases made the federal 'exclusion- ary rule' applicable to the States. The latter forced the States to follow all the ins and outs of this Court's Fourth Amendment decisions, handed down in federal cases. In combination Mapp and Ker have been primarily responsible for bringing about serious distortions and incongruities in this field of constitutional law. Basically these have had two aspects, as I believe an examination of our more recent opinions and certiorari docket will show. First, the States have been put in a federal mold with respect to this aspect of criminal law enforcement, thus depriving the country of the opportunity to observe the effects of different procedures in sim­ ilar settings. Second, in order to leave some room for the States to cope with their own diverse problems, there has been generated a tendency to relax federal require­ ments under the Fourth Amendment, which now govern state procedures as well. . . . Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid pro­ gress in setting things straight in search and seizure law will, in my opinion, occur.

But for Mapp and Ker, I would have little difficulty in voting to sustain this conviction, for I do not think that anything the State did in this case could be said to offend those values which are 'at the core of the Fourth Amendment.' Because of Mapp and Ker, however, this case must be judged in terms of federal standards, and on that basis I concur, although not without difficulty, in the judg­ ment of the court. . . .312

312Ibid., pp. 491-92. 148 Justice Harlan, in his Mapp dissent, reminded the majority that the Court had "only very recently again reiterated the long-established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not applicable to the States."313 Not only was the Court later to repudiate this doctrine, over Harlan's dissent, in Malloy v. Hogan,31" the Court was also to override, in Benton v. Maryland,315 its long-standing rule that the Fifth Amendment double jeopardy provision does not apply to the states, with Harlan again in dissent. The Fifth Amendment of the U.S. Constitution, in its pertinent parts, provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . .; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal' case to be a witness against himself, nor be deprived of life, liberty, or property, without due pro­ cess of law. The leading case supporting the proposition that ;an indictment or presentment by a grand jury, as required by the Fifth Amendment in federal prosecution, is not applicable to the states through the due process clause of the

313Mapp v. Ohio, 367 U.S. 643, 685-86 (1961); quot­ ing from Cohen v. Hurley, 366 U.S. 117 (1961). 31"378 U.S. 1 (1964). 315395 U.S. 784 (1969). 149 Fourteenth Amendment, is Hurtado v. California.316 In Hurtado, Justice Harlan's grandfather, the first Justice John M. Harlan, dissented, expressing the view that all pro­ visions of the Bill of Rights securing to the citizen liberty and justice were included in the due process clause of the Fourteenth Amendment. This total incorporation view, later vigorously voiced by Justice Black, has never been adopted by a majority of the Supreme Court, as pointed out in this chap­ ter.

The Supreme Court has consistently held since Hurtado down through the Warren era that there is no federal consti­ tutional impediment to dispensing entirely with a grand jury in state prosecutions, provided the state provides some other means of insuring justice and fair play.317 In most states the prosecuting attorney has the option to proceed by grand jury indictment or by filing a bill of information direct with the court. An information is a well-accepted procedure for indicating that there is sufficient evidence to justify trying a particular person for a particular offense. One of the concepts that was deeply rooted in our system of law from earliest times is the idea that the govern­ ment should not be able to harass and prosecute a man, trying him repeatedly for the same offense until it could obtain a

316110 U.S. 516 (1884). 317Beck v. Washington, 369 U.S. 541 (1962). 150 conviction. The Supreme Court has described in the follow­ ing terms the purpose and nature of the protection against double jeopardy. The constitutional prohibition against 'double jeop­ ardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The under­ lying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an indivi­ dual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.318

Writing about the Warren Court's decisions in the area of state criminal procedure, Professor Harold J. Spaeth, in 1966, referred to the transfusion of the federal guar­ antees into state criminal procedure. "All of the important provisions of the Bill of Rights have been made applicable to the states except the double-jeopardy provision of the Fifth Amendment. And it is likely that when a suitable case reaches the [Supreme] Court, the previous precedents will be overruled and the double-jeopardy provision also made binding upon the states."319 The suitable case reached the Supreme

31BGreen v. United States, 355 U.S. 184, 187-88 (1957). 3 "Harold J. Spaeth, The Warren Court, (San Francisco: Chandler, 1966), p. 290. 151 Court in 1969 when, in Benton v. Maryland,320 the Court held, overruling Palko v. Connecticut,321 that the double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. The Court went on to hold, in Justice Marshall's opinion for six of the justices, that once it is decided that a particular Bill of Rights guaranty is fundamental to the American scheme of justice, the same constitutional standards apply against both the state and federal governments. Justice Harlan, joined by Justice Stewart, in a dis­ sent reminiscent of Harlan's dissenting opinion in Mapp, asserted that the double jeopardy issue should not have been reached, and that the Court's "selective incorporation" doc­ trine was unsupported either in history or in reason and was subtly, yet profoundly, eroding many of the basics of our federal system. These ideas are found in the following excerpts from Harlan's dissenting opinion. One of the bedrock rules that has governed, and should continue to govern, the adjudicative processes of this Court is that the decision of constitutional questions in the disposition of cases should be avoided whenever fairly possible. Today the Court turns its back on that sound principle by refusing, for the flimsiest of reasons, to apply the 'concurrent sentence doctrine;' so as not to be required to decide the far-reaching question whether the Double Jeopardy Clause of the Fifth Amendment is 'incorporated' into the Due Process Clause of the

32"395 U.S. 784 (1969). 321302 U.S. 319 (1937). 152 Fourteenth, thereby making the former applicable lock, stock, and barrel to the States. Indeed, it is quite manifest that the Court has actually been at pains to 'reach out' to decide that very important constitutional issue. I would hold, in accordance with Palko v. Connecticut, . . . that the Due Process Clause of the Fourteenth Amend- ment does not take over the Double Jeopardy Clause of the Fifth, as such. Today Palko becomes another casualty in the so far unchecked march toward 'incorporat­ ing' much, if not all, of the Federal Bill of Rights into the Due Process Clause. ... I ... . raise my voice again in protest against a doctrine which so subtly, yet profoundly, is eroding many of the basics of our federal system.

More broadly, that this Court should have apparently become so impervious to the pervasive wisdom of the con­ stitutional philosophy embodied in Palko, and that it should have felt itself able to attribute to the percep­ tive and timeless words of Mr. Justice Cardozo nothing more than a 'watering down' of constitutional rights, are indeed revealing symbols of the extent to which we are weighing anchors from the fundamentals of our constitu­ tional system.322 The Fifth Amendment guarantee against self-incrimina­ tion, in the language of the Supreme Court, "was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed."323 Closely related to search and seizure is the matter of coerced confession. The latter pertains to self- incrimination, and even though it was not until the 1964

322Benton v. Maryland, 395 U.S. 784, 801, 808-09 (1969). 323Feldman v. United States, 322 U.S. 487, 489 (1944). 153 decision in Malloy v. Hogan32" that the Court held the Fifth Amendment self-incrimination clause applicable to the states, the Court had nonetheless held coerced confessions unconstitutional in state cases since 1936. 325 Malloy, a witness in a state inquiry into gambling and other crimes, had invoked his privilege against self-incrim­ ination and had been convicted of contempt. He sought a writ of habeas corpus and when it was denied appealed to the Supreme Court. There, in an opinion by Justice Brennan for five members of the Court, it was held that the Fourteenth Amendment makes the Fifth Amendment privilege against self- incrimination applicable to the states and the application of the privilege is governed by federal standards. Justice Harlan, dissenting, said: Believing that the reasoning behind the Court's decision carries extremely mischievous, if not dangerous, consequences for our federal system in the realm of crim­ inal law enforcement, I must dissent. ... I can only read the Court's opinion as accepting in fact what it rejects in theory: the application to the States, via the Fourteenth Amendment, of the forms of federal crim­ inal procedure embodied within the first eight Amend­ ments to the Constitution. . . . The ultimate result is compelled uniformity, which is inconsistent with the purpose of our federal system and which is achieved either by encroachment on the States' sovereign powers or by dilution in federal law

32"378 U.S. 1 (1964). 325Brown v. Mississippi, 297 U.S. 278 (1936). 154 enforcement of the specific protections found in the Bill of Rights. . . .326 The Court's approach in the present case is in fact nothing more or less than 'incorporation' in snatches. If, however, the Due Process Clause is something more than a reference to the Bill of Rights and protects only those rights which derive from fundamental principles, as the majority purports to believe, it is just as con­ trary to precedent and just as illogical to incorporate the provisions of the Bill of Rights one at a time as it is to incorporate them all at once.

The Court's undiscriminating approach to the Due Process Clause carries serious implications for the sound working of our federal system in the field of criminal law. About all that the Court offers is the observation that it would be 'incongruous' if different standards governed the assertion of a privilege to remain silent in state and federal tribunals. Such 'incongruity,' how­ ever, is at the heart of our federal system. The powers and responsibilities of the state and federal governments are not congruent; under our Constitution, they are not intended to be. . . . As the Court pointed out in Abbate v. United States, . . . 'the States under our federal system have the prin- cipal responsibility for defining and prosecuting crimes.' The Court endangers this allocation of responsibility for the prevention of crime when it applies to the States doctrines developed in the context of fed­ eral law enforcement, without any attention to the special problems which the States as a group or particular States may face. If the power of the States to deal with local crime is unduly restricted, the likely consequence is a shift of responsibility in this area to the Federal Government, with its vastly greater resources. Such a shift, if it occurs, may in the end serve to weaken the very liberties which the Fourteenth Amendment safeguards by bringing us closer to the monolithic society which our federalism rejects. . . . Rather than insisting, almost by rote, that the Connecticut court, in considering the petitioner's claim

3 "Malloy v. Hogan, 378 U.S. 1, 14-17 (1964). 155 of privilege, was required to apply the 'federal stan­ dard,' the Court should have fulfilled its responsibility under the Due Process Clause by inquiring whether the proceedings below met the demands of fundamental fairness which due process embodies. Such an approach may not satisfy those who see in the Fourteenth Amendment a set of easily applied 'absolutes' which can afford a haven from unsettling doubt. It is, however, truer to the spirit which requires this Court constantly to re-examine fundamental principles and at the same time enjoins it from reading its own preferences into the Constitu­ tion. 327

After three decades of debate over constitutional standards governing the use of confessions in criminal cases, the Supreme Court in the controversial 1966 case of Miranda v. Arizona328 endeavored to promulgate definitive rules that would resolve some of the uncertainty created by its decision in Escobedo v. Illinois.329 In Escobedo, over Justice Harlan's dissent, the Court held that a confession obtained from a suspect by police questioning after arrest but before arraignment or indictment, and after the suspect had requested but refused opportunity to consult an attorney was inadmissible as it violated the suspect's right to counsel preserved by the Sixth and Fourteenth Amendments. Chief Justice Warren, writing the majority opinion in Miranda, asserted that a man's rights not to talk and to

327Ibid., pp. 27-29. 328384 U.S. 436 (1966). 329375 U.S. 478 (1964). 156 have a lawyer ought to begin where his prosecution begins — not in the courtroom but in the station house. Miranda had been arrested at his home and taken to the police station under suspicion of kidnapping and rape. He was questioned by two police officers. He was not told that he was entitled to have an attorney present, but at some point he apparently was informed that he need not make a statement and that anything he said might be used against him. After two hours of questioning, without threats or coercion, he signed a written statement confessing his guilt. The con­ fession was admitted as evidence at the trial, and Miranda was convicted. The Court reversed upon the ground that the questioning and subsequent use of the confession as evidence violated the Fifth Amendment privilege against self- incrimination. Laying down broad rules for the guidance of the police and lower courts, the Court said that the prosecu­ tion may not use as evidence in a criminal case a statement resulting from police interrogation of a person in custody unless he has been warned of his right to remain silent, of the danger that any statement may be used against him, that he has a right to have present an attorney during the ques- tioning, and that if indigent he has a right to an attorney without charge.

Justice Harlan, in his dissenting opinion in Miranda, stated, in part: 157 I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. . . . I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circum­ stances . . . . 3 3 °

What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. There can be little doubt that the Court's new code would markedly decrease the number of confes­ sions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. . . .

How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete. ... We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules any­ thing but a hazardous experimentation.331 Although never expressly relied on by the Court for its decision in Miranda, the assistance of counsel guarantee

330Ibid., pp. 504-05. 331Ibid., pp. 516-17. 158 of the Sixth Amendment is relevant to the Court's counsel provisions of the warnings that it declared must be given to suspects. The Sixth Amendment to the U.S. Constitution, in its pertinent parts, provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature, and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assis­ tance of Counsel for his defense. The Supreme Court has observed: The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.' It embodies a realistic recognition of the obvious truth that the aver­ age defendant does not have the professional skill to pro­ tect himself when brought before a tribunal with power to take life or liberty, wherein the prosecution is presented by experienced and learned Counsel. That which is simple, orderly and necessary to the lawyer—to the untrained layman may appear intricate, complex and mysterious.3 32 The Supreme Court has long held that the states, under the Fourteenth Amendment, must give every criminal defendant a reasonable opportunity to employ counsel. The right to counsel, for those with funds to employ counsel and indigents alike, did not become firmly established until the landmark case of Gideon v. Wainwright in 1963. "3

332Johnson v. Zerbst, 304 U.S. 458 (1938). 333372 U.S. 335 (1963). 159 Gideon was originally spawned in Powell v. Alabama33" in which the accused all indigent Blacks, (referred to as the Scottsboro Boys) were tried in three groups, and all three trials were completed in one day. Each defendant was found guilty of raping two white girls and sentenced to death. They were represented on arraignment by all of the members of the local bar on appointment by the Court, but history records that their representation left something to be desired. The Supreme Court set aside the convictions because there had not been an adequate appointment of counsel to represent them in a hastily carried-out trial. Due process, Justice Sutherland said for the Court, referring to the due process clause in the Fourteenth Amendment, always requires the observance of certain fundamental personal rights associated with a hearing and "the right to the aid of counsel is of this fundamental character." This observation was made with regard to the right to retain counsel of one's choice and at one's expense and included an eloquent state­ ment of the necessity of counsel.

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated lay­ man has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

""287 U.S. 45 (1932). 160 Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or other­ wise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of convic­ tion because he does not know how to establish his innocence.3 3 5 The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel and said therefore that in the circum­ stances—"the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them nec­ essarily difficult, and above all that they stood in deadly peril of their lives"--"the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment." The holding was specifically narrow. "In a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is

335Ibid., pp. 68-9. 161 the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law. . . .""6 Next step in the expansion of the right to counsel came in Johnson v. Zerbst"7 in which the Court announced an absolute rule requiring appointment of counsel for defendants who could not afford to retain a lawyer on trial in federal courts. The right .to assistance of counsel, Justice Black wrote for the Court, "is necessary to insure fundamental human rights of life and liberty."338 An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady.3" Justice Roberts for the Court observed that the Sixth Amend­ ment would compel the result only in federal courts but that in state courts the due process clause of the Fourteenth Amendment "formulates a concept less rigid and more fluid" than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might "in certain circumstances" be a violation of due process. The question was rather "whether the constraint laid by the Amendment upon the national courts

336Ibid., p. 71. 337304 U.S. 458 (1938). "8Ibid., p. 462. 3"316 U.S. 455 (1942). 162 expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obliga­ tory upon the States by the Fourteenth Amendment."3"" Exam­ ining the common-law rules, the English practice, and the state constitutions, laws, and practices, the Court concluded that it was the "considered judgment of the;people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial." Want of counsel in a particular case might result in a con­ viction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice but this was not the general rule.3"1 Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the States and required the appointment of counsel but that even on the Court's terms counsel was a fundamental right and appointment was required by due pro­ cess. 3"2 Over time the Court abandoned the "special circum­ stances" language of Powell when capital cases were involved and finally in Hamilton v. Alabama3"3 it held that in a

3"°Ibid., pp. 461-62, 465. 3"1Ibid., pp. 471, 473. 3"2Ibid., p. 474 (joined by Justices Douglas and Murphy). 3"3368 U.S. 52 (1961). 163 capital case a defendant need make no showing of particu­ larized need nor of prejudice resulting from absence of counsel; henceforth, assistance of counsel was a constitu­ tional requisite in capital cases. In noncapital cases, the progress of the cases was such that Justice Harlan could assert in his concurring opinion in Gideon that "the 'special circumstances' rule has continued to exist in form while its substance has been substantially and steadily eroded."3"" Against this background, a unanimous Supreme Court in Gideon v. Wainwright3"5 overruled Betts v. Brady and held "that in our adversary system of criminal justice, any per­ son haled into court, who is too poor to hire a lawyer, can­ not be assured a fair trial unless counsel is provided for him. . . . The right to one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."3"6 Although concurring with the result in Gideon, Harlan objected to the Court's manner of overruling Betts v. Brady and to the incorporation implications of the opinion. I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial. . . .

3""Gideon v. Wainwright, 372 U.S. 335, 350 (1963). 3"5Ibid., pj. 349. 3"6Ibid., p. 344. 164 In agreeing with the Court that the right to counsel in a case such as this should now be expressly recog­ nized as a fundamental right embraced in the Fourteenth Amendment, I wish to make a further observation. When we hold a right or immunity, valid against the Federal Government, to be 'implicit in the concept of ordered liberty' and thus valid against the States, I do not read our past decisions to suggest that by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States. Any such con­ cept would disregard the frequently wide disparity between the legitimate interests of the States and of the Federal Government, the divergent problems that they face, and the significantly different consequences of their actions. In what is done today I do not understand the Court to depart from the principles laid down in Palko v. Connecticut . . . , or to embrace the concept that the Fourteenth Amendment 'incorporates' the Sixth Amend­ ment as such.3"7

Despite Justice Harlan's incessant protests against the majority's ratio decedendi, the Warren Court continued in the 1960s the process of "selective incorporation" by which virtually all of the provisions of the Bill of Rights were made applicable to the states. In Pointer v. Texas3"8 the confrontation clause of the Sixth Amendment was held to be applicable in state pro­ ceedings and protects the defendant's right to cross-examine a prosecution witness during a preliminary hearing. Harlan concurred in the result, but he again objected to the reason­ ing in Justice Black's opinion expressing the incorporation views of seven members of the Court. Harlan opined that the right of confrontation is implicit in the concept of ordered

3"7Ibid., pp. 349-52. 3"8380 U.S. 400 (1965). 165 liberty reflected in the due process clause of the Four­ teenth Amendment independently of the Sixth. Justice Goldberg, in a separate concurring opinion, joined in the Court's opinion, specifically stating that he adhered to and supported the process of absorption by means of which the Court held that certain fundamental guarantees of the Bill of Rights are made obligatory on the states through the Fourteenth Amendment. Criticizing the erosion of the "constitutionally ordained" federal polity he saw resulting from the Court's use of the incorportion doctrines, total or selective, Jus­ tice Harlan stated: It is too often forgotten in these times that the American federal system is itself constitutionally ordained, that it embodies values profoundly making for lasting liberties in this country, and that its legit­ imate requirements demand continuing solid recognition in all phases of the work of this Court. The 'incorpor­ ation' doctrines, whether full blown or selective, are both historically and constitutionally unsound and incom­ patible with the maintenance of our federal system on even course.3"9

Upon deciding in 1967, in Washington v. Texas,350 that the compulsory process provision of the Sixth Amendment was incorporated in the due process clause of the Fourteenth Amendment, Chief Justice Warren, in an opinion expressing the views of eight members of the Court, took the occasion

3"9Ibid., p. 409. ""388 U.S. 14 (1967). 166 to summarize the application, to that time, of Sixth Amend­ ment rights to state criminal trials. Warren stated: At one time it was thought that the Sixth Amendment had no application to state criminal trials. That view no longer prevails, and in recent years we have increas­ ingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial. " !

Justice Harlan concurred in the results in all the cases cited by Warren, except for the public trial case decided several years before Harlan was on the Court. How­ ever, Harlan accompanied his concurrence in each instance with a vigorous remonstrance against the Court's use of the incorporation doctrine as the basis for its holding, insist­ ing that each case must be decided on the ground of funda­ mental fairness. Harlan's opinions in Gideon and Pointer, discussed above, are representative of the views he expressed in each of the cited cases. The Sixth Amendment guaranty of jury trial was held applicable to state criminal cases in Duncan v. Louisiana,352 in 1968. Justice White, expressing the views of seven

351Ibid., p. 18. Chief Justice Warren cited Gideon v. Wainwright, 372 U.S. 335 (1963), assistance of counsel; Pointer v. Texas, 380 U.S. 400 (1965), confrontation of accusing witnesses; Klopfer v. North Carolina, 386 U.S. 213 (1967), speedy trial; and In re Oliver, 333 "U.S. 257 (1948), public trial. 352391 U.S. 145 (1968). 167 members of the Court, said that trial by jury in criminal cases being fundamental to the American scheme of justice, the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guaranty of a jury trial. Justices Black and Douglas agreed with the hold­ ing of the Court for the reasons given by it, but also main­ tained their long-standing view that the Fourteenth Amendment makes the Bill of Rights, as a whole, applicable to the states. Justice Fortas joined the judgment and opinion of the Court, expressing, however, the view that not all federal requirements such as unanimous jury verdict or a jury of 12 should be imposed upon the states.353

Justice Harlan, joined by Justice Stewart, dissented in Duncan, expressing the view that a trial by jury in a criminal case is not a requisite of fundamental fairness. Again, Justice Harlan outlined his familiar due process argu­ ments, applying them now to the trial by jury question. Every American jurisdiction provides for trial by jury in criminal cases. The' question before us is not whether jury trial is an ancient institution, which it is; nor whether it plays a significant role in the

3 "Justice Fortas' view that federal jury size and unanimity of verdict requirements need not apply to state trials was later adopted by the Supreme Court in Williams v. Florida, 399 U.S. 78 (1970), as to jury size; and in Apodaco v. Oregon, 406 U.S. 404 (1972), as to unanimous jury verdict. Justice Harlan concurred in Williams and was no longer on the Court when Apodaco was decided. 168 administration of criminal justice, which it does; nor whether it will endure, which it shall. The question in this case is whether the State of Louisiana, which pro­ vides trial by jury for all felonies, is prohibited by the Constitution from trying charges of simple battery to the court alone. In my view, the answer to that ques­ tion, mandated alike by our constitutional history and by the longer history of trial by jury, is clearly 'no.' The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular cir­ cumstances. In exercising this responsibility, each State is compelled to conform its procedures to the requirements of the Federal Constitution. The Due Pro­ cess Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects. It does not, in my view, impose or encourage nationwide uniformity for its own sake; it does not command adher­ ence to forms that happen to be old; and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness.

The Court's approach to this case is an uneasy and illogical compromise among the views of various Justices on how the Due Process Clause should be interpreted. The Court does not say that those who framed the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States. And the Court concedes that it finds nothing unfair about the procedure by which the present appellant was tried. Nevertheless, the Court reverses his conviction: it holds, for some reason not apparent to me, that the Due Process Clause incorporates the parti­ cular clause of the Sixth Amendment that requires trial by jury in federal criminal cases--including, as I read its opinion, the sometimes trivial accompanying baggage of judicial interpretation in federal contexts. I have raised my voice many times before against the Court's continuing undiscriminating insistence upon fastening on the States federal notions of criminal justice, and I must do so again in this instance. With all respect, the Court's approach and its reading of history are alto­ gether topsy-turvy. . . ."4

""Duncan v. Louisiana, 391 U.S. 145, 171-73 (1968). 169 In sum, there is a wide range of views on the desirability of trial by jury and on the ways to make it most effective when it is used; there is also consider­ able variation from State to State in local conditions such as the size of the criminal caseload, the ease or difficulty of summoning jurors, and other trial condi­ tions bearing on fairness. We have before us, therefore, an almost perfect example of a situation in which the celebrated dictum of Mr. Justice Brandeis should be invoked. It is, he said, 'one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory. . . .' New State Ice Co. v. Liebmann. . . . This Court, other courts, and the political process are available to correct any experiments in criminal procedure that prove fundamentally unfair to defendants. That is not what is being done today: instead, and quite without reason, the Court has chosen to impose upon every State one means of trying criminal cases; it is a good means, but it is not the only fair means, and it is not demonstrably better than the alternatives States might devise.355

At the time the U.S. Constitution and the Bill of Rights were written, the concept of reasonable bail and the right to be free from "cruel and unusual punishment" were already rooted in our law. Thus, it was not unexpected that the Bill of Rights should meet these threats to human liberty and dignity. The Eighth Amendment provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. This amendment has received limited attention from the courts. Earlier cases had held that the excessive bail provision was not applicable to the states, but in 1963 a U.S. Court of Appeals commented: "We take it for granted that, contrary to earlier cases . . . the prohibition in the

355Ibid., p. 193. 170 Eighth Amendment against requiring excessive bail must now be regarded as applying to the States, under the Fourteenth Amendment."356 The Supreme Court has not indicated with certainty whether this is, indeed, a correct interpretation. Similarly, earlier cases had decided that the cruel and unusual punishment did not apply to the states, but in Robinson v. California,357 the Supreme Court appears to have brought the provision within the umbrella of the Fourteenth Amendment. In Robinson the Court struck do\\m a California statute which made it a misdemeanor for a person to be addicted to the use of narcotics and which imposed a jail term of not less than 90 days. Justice Stewart in his opin­ ion for the Court declared that the state law inflicts a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Justice Harlan, concurring in the reversal of Robinson's conviction, avoided the Eighth Amend­ ment issue by stating that he was not prepared to hold "on the present state of medical knowledge [that] it is completely irrational and hence unconstitutional for a State to conclude that narcotics addiction is something other than an illness, nor that it amounts to cruel and unusual punishment for the

35sPilkinton v. Circuit Court of Howell County, Mis­ souri, 324 F. 2d 45, 46 (CA. 8, 1963). 357370 U.S. 660 (1962). 171 State to subject narcotics addicts to its criminal law."358 However, he held that without proof of use within the State, the defendant was being convicted for having "a bare desire to commit a criminal act."359 Later, in Powell v. Texas,360 a 1968 case, five members of the Supreme Court, including Justice Harlan, refused to find that a conviction for public drunkenness was a cruel and unusual punishment. However, all members of the Court, apparently agreed upon the proposition that at this juncture the cruel and unusual punishment clause of the Eighth Amendment is applicable to the states. The Warren Court's nationalization of the Bill of Rights reached the juvenile courts of the states in 1967 when In re Gault361 established that rights to counsel, to notice, to confrontation and cross-examination, and the priv­ ilege against self-incrimination belong to children being prosecuted. Historically, juveniles were denied basic Bill of Rights guarantees on the premise that juvenile courts should operate in the place of the parent. It is arguable that under this premise the child receives the worst of both worlds;

358Ibid., p. 678. 359Ibid., p. 679. "°392 U.S. 514 (1968). 361387 U.S. 1 (1967). 172 that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children. Justice Harlan, concurring in part and dissenting in part, in Gault, "2 emphasized the unique aspects of juvenile proceedings and the need for restraint in the early stages of the Court's consideration of the juvenile process. His posi­ tion was that the Court had gone too far. Only three proce­ dural requirements should be required of juvenile courts at this time, be declared: notice should be provided to par­ ents and children of the nature and terms of any juvenile court proceeding; unequivocal and timely notice should be given so that counsel might appear; and the court should main­ tain a written record adequate to permit effective review on appeal. Harlan agreed that the Arizona procedure had not met these requirements. The Supreme Court appears to have heeded in subsequent cases Justice Harlan's call for caution in staking out constitutional rights in the juvenile justice area.363 The process of the Warren Court's nationalization of criminal justice included not only the use of the instrument

"2Ibid., p. 65. 363In re Winship, 397 U.S. 358 (1970); McKeiver v. Pennsylvania, 403 U.S. 528 (1971). See Justice Harlan's concurring opinions at p. 368 in Winship and at p. 557 in McKeiver. 173 of incorporation of the Bill of Rights into the due process clause of the Fourteenth Amendment as explicated in this chapter, but also the application of the equal protection of the laws clause of the Fourteenth Amendment to state crim­ inal-cases. Selected leading cases illustrating this inter­ section of due process and equal protection will be presented, and Justice Harlan's abhorrence of the Warren Court's egali­ tarianism as expressed in the cases will be highlighted. The cases begin with Griffin v. Illinois,36" a five to four decision, surely one of the most seminal cases in modern constitutional law. In Griffin a failure of Illinois to furnish indigent convicted criminals with transcripts of the record was held to violate the due process and equal 'pro­ tection clauses of the Fourteenth Amendment. Justice Black wrote in the plurality opinion for the Court: Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal.

. . . due process and equal protection both call for procedures in criminal trials which allow no invidious discrimination between persons and different groups of persons. . . . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Desti­ tute defendants must be afforded as adequate appellate review as defendants who have money enough to buy tran-; scripts. "5

36"351 U.S. 12 (1956). 365Ibid., pp. 16-17, 19. 174 Justice Harlan's dissenting opinion illustrates the appeal the Griffin decision has to his instinctive feel for justice, but at the same time his inability to ignore what he believes a reasoned constitutional result requires. Much as I would prefer to see free transcripts fur­ nished to indigent defendants in all felony cases, I find myself unable to join in the Court's holding that the Fourteenth Amendment requires a State to do so or to furnish indigents with equivalent means of exercising a right to appeal. . . . 36* Justice Harlan opposed reliance on the equal protec­ tion clause at all, arguing that a due process analysis was the proper criterion to follow. It is said that a State cannot discriminate between the 'rich' and the 'poor' in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the prob­ lem confronting us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action. The Court thus holds that, at least in this area of criminal appeals, the Equal Protection Clause imposes on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitu­ tional admonition to the States to treat all persons equally means in this instance that Illinois must give to some what it requires others to pay for. Granting that such a classification would be reasonable, it does not follow that a State's failure to make it can be regarded as discrimination. . . .

With due regard for the constitutional limitations upon the power of this Court to intervene in State matters, I am unable to bring myself to say that Illinois' failure to furnish free transcripts to indigents in all

366Ibid., p. 29. 175 criminal cases is 'shocking to the universal sense of justice.' As I view this case, it contains none of the elements hitherto regarded as essential to justify action by this Court under the Fourteenth Amendment. In truth what we have here is but the failure of Illinois to adopt as promptly as other States a desirable reform in its crim­ inal procedure. Whatever might be said were this a ques­ tion of procedure in the federal courts, regard for our system of federalism requires that matters such as this be left to the States. However strong may be one's inclination to hasten the day when in forma pauperis criminal procedures will be universal among the States, I think it is beyond the province of this Court to tell Illinois that it must provide such procedures.367

The principle of Griffin was extended in Douglas v. California36 8 in which the Court held to be a denial of due process and equal protection a system whereby in the first appeal as of right from a conviction counsel was appointed only if the appellate court first examined the record and determined counsel would be of advantage to the appellant. Justice Douglas, speaking for the Court, said: . . . There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.3

367Ibid., pp. 34, 39. 368372 U.S. 353 (1963). "9Ibid. , pp. 357-58. 176 Justice Harlan carried over his protest in Griffin to the facts in Douglas. The States, of course, are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor' as such in the formulation and application of their laws. [Emphasis in original.] But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.3 70

Due process furnished the standard, he felt, for determining whether fundamental fairness had been denied. Where an appeal was barred altogether by the imposition of a fee, the line might have been crossed and unfairness resulted, but on the whole he did not see that a system which merely recognized differences between and among economic classes, which as in Douglas made an effort to ameliorate the fact of the differ­ ences by providing appellate scrutiny of cases as of right, was a system which denied due process. During the next to last year of Justice Harlan's Supreme Court service the Court relied on the equal protec­ tion clause of the Fourteenth Amendment in holding in Williams v. Illinois371 that a convicted defendant may not be imprisoned solely because of his indigency. Williams was convicted of petty theft and received the maximum sentence

370Ibid., p. 361. 371399 U.S. 235 (1970). 177 of one year's imprisonment and a $500 fine plus $5 in court costs. The sentencing judge ordered that if the defendant was in default of the monetary payment at the expiration of his imprisonment term, he should remain in jail to "work off" the monetary obligations at the statutory rate of $5 per day. The Supreme Court of Illinois affirmed the sentencing, hold­ ing that there was no denial of equal protection of the law by continuation of imprisonment upon the indigent's inability to pay the fine and costs. On appeal, the Supreme Court vacated the judgment and remanded the case. In an opinion by Chief Justice Burger, expressing the view of seven members of the Court, it was held that there was an impermissible dis­ crimination, violative of the equal protection clause of the fourteenth Amendment, when the aggregate imprisonment of an indigent state prisoner exceeded the maximum period fixed by the statute governing the offense involved, and resulted directly from an involuntary nonpayment of a fine or court costs. Justice Harlan concurred in the result but stated that the matter should be governed by due process standards rather than by equal protection standards. Harlan's opinion also deals with the broader question of the proper role of the Supreme Court in the American polity. I concur in today's judgment, but in doing so wish to disassociate myself from the 'equal protection' rationale employed by the Court to justify its conclusions. 178 The 'equal protection' analysis of the Court is, I submit, a 'wolf in sheep's clothing,' for that rationale is no more than a masquerade of a supposedly objective standard for subjective judicial judgment as to what state legislation offends notions of 'fundamental fair­ ness.' [Emphasis in original.] Under the rubric of 'equal protection' this Court has in recent times effec­ tively substituted its own 'enlightened' social philos­ ophy for that of the legislature no less than did in the older days the judicial adherents of the now discredited doctrine of 'substantive' due process. I, for one, would prefer to judge the legislation before us in this case in terms of due process, that is to determine whether it arbitrarily infringes a constitutionally protected inter­ est of this appellant. . . .

An analysis under due process standards, correctly understood, is, in my view, more conducive to judicial restraint than an approach couched in slogans and ringing phrases, such as 'suspect' classification or 'invidious' distinctions, or 'compelling' state interest, that blur analysis by shifting the focus away from the nature of the individual interest affected, the extent to \vhich it is affected, the rationality of the connection between legislative means and purpose, the existence of alterna­ tive means for effectuating the purpose, and the degree of confidence we may have that the statute reflects the legislative concern for the purpose that would legit­ imately support the means chosen.372

Harlan concluded that when a state declared its penal interest could be satisfied by a fine or a forfeiture in combination with a jail term, the administrative inconven­ ience in a judgment collection procedure providing for install­ ment payments did not, as a matter of due process, justify sending to jail or extending the jail term of individuals who possessed no accumulated assets.

372Ibid., pp. 259-60. 179 The next year following its decision in Williams, and during Harlan's last year as a Supreme Court Justice, the Court held that in situations in which no term of confine­ ment is prescribed for an offense but only a fine, the court may not send persons who cannot pay the fine to jail, unless it is impossible to develop an alternative, such as install­ ment payments or fines scaled to ability to pay.373 Harlan' again concurred in the court's judgment, but on the basis of due process rather than equal protection. Throughout the march of the Warren Court toward nationalization of criminal justice in America, Justice Harlan sought to preserve the vitality of the federal system which he saw constitutionally ordained and necessary to safeguard the individual from the dangers of monolithic rule. Often alone in dissent, Harlan resisted with principled argument the notion that the due process clause of the Fourteenth Amendment "incorporates" in whole or in part the provisions of the Bill of Rights. Similarly, he was unable to accept the equal protection clause of the Fourteenth Amendment as the fount of the Supreme Court's power to compel the states to meet the majority's notions of social justice and polit­ ical equality.

373Tate v. Short, 401 U.S. 395 (1971). 180 The state criminal cases reviewed in this chapter reveal that Harlan sometimes agreed with the results and sometimes he disagreed, but in virtually all of the cases he opposed the majority's theoretical approach. Expanding on the views of Justices Cardozo and Frankfurter, he argued in favor of a due process approach that considers each particular case in the light of fundamental fairness and ordered liberty. He saw in this approach a constitutional dynamism, in con­ trast to the stultifying nature of the incorporation theory. His critics saw Harlan's approach as unduly amorphous and subjective because of the uncertainty surrounding the mean­ ing of such touchstones for decision as "fundamental fair­ ness" and "ordered liberty." Harlan's answer was that the more flexible standard is to be preferred because, as he often declared, the constitutional plan tolerates, indeed encourages, differences between the methods used to effectuate legitimate federal and state concerns. Harlan's call for greater judicial accommodation of this constitutionally recognized diversity will be examined in a First Amendment context in the next chapter. Chapter III

FEDERALISM AND FREEDOM OF EXPRESSION:- THE OBSCENITY CASES

Congress shall make no law . . . abridging the free­ dom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.37 No State shall . . . deprive any person of life, liberty or property, without due process of law; 3 7 5

Justice Harlan's arguments for federalism as he saw it in the constitutional structure of the American polity, and for judicial self-restraint by the Supreme Court as an instrument for its preservation will be examined in this chapter principally in the context of the Warren Court's obscenity decisions. The obscenity cases raised once again the issue of the incorporation of the Bill of Rights into the Fourteenth Amendment and, in particular, the coalescence of the First Amendment's freedom of expression guarantees with the due process clause of the Fourteenth Amendment. The examination in this chapter of Harlan's opinions in a series

37"U.S. Const., Amend. I. 375U.S. Const., Amend. XIV, Sec. 1. 181 182 of cases will reveal his insistence upon differentiation between federal and state power because, in his view, the nation's commitment to federalism precludes the judiciary from requiring that the states conform to the mandates intended originally to be directed at the federal author­ ities . Glancing back at the history of the application of the Bill of Rights to the states, it is seen that as recently as 1922 the Supreme Court had expressed the view that the Fourteenth Amendment did not make the protections of the First Amendment binding on the states.376 Since 1925, how­ ever, beginning with Gitlow v. New York of that year, Supreme Court decisions have extended against state power the full gamut of the First Amendment's protections for religion, speech, press, assembly and petition.377 When in these cases the Court began to concern itself with state abridgement of First Amendment freedoms, it used the words "life" and "liberty" in the due process clause of the Fourteenth Amend­ ment in the same manner as it had earlier used the word

376Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922). 377See Gitlow v. New York, 268 U.S. 652, 666 (1925); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); West Virginia State Board of Education v. Barnett, 319 U.S. 624, 633 (1943); Near v. Minnesota, 283 U.S. 697, 707 (1931); Dejonge v. Oregon, 299 U.S. 353, 364 (1937); Bridges v. California, 314 U.S. 252, 277 (1941). 183 "property" in a substantive due process context to strike down state regulation of property and business activities. Justice Sanford's opinion in Gitlow v. New York con­ tained a dictum that was later to become prevailing Supreme Court doctrine, incorporating in a series of cases all the provisions of the First Amendment into the due process clause of the Fourteenth Amendment. Sanford asserted: For present purposes we may and do assume that free­ dom of speech and of the press--which are protected by the 1st Amendment from abridgement by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the states.378 By the time Palko v. Connecticut379 was decided, in 1937, all the freedom of expression and corollary provisions of the First Amendment had been firmly incorporated into the Fourteenth Amendment. It can be said that, in effect, the Supreme Court had amended the Constitution by interpreting it as though the First Amendment read: "neither Congress nor any state shall make any law" abridging the freedoms guaranteed by the First Amendment. It remained, however, for Justice Benjamin Cardozo, in Palko, to provide a thorough discussion that would deal with the theoretical as well as the practical issues involved in nationalizing the Bill of Rights. Cardozo's analytical framework provided a base from which Justice' Harlan formulated much of his constitutional philosophy with respect

378268 U.S. 652, 666 (1925) . 379302 U.S. 319 (1937) . 184 to the question of the application of the Bill of Rights guarantees to the states and to the role of the judiciary in the American constitutional scheme of things. This was pointed out in Chapter II in the context of criminal proce­ dure, and the Cardozo influence on Harlan will become evident in this chapter where selected freedom of expression opinions by Harlan in the obscenity field are presented. Although Justice Cardozo refused to regard the due process of law clause of the Fourteenth Amendment as "short­ hand" for the Bill of Rights, he nonetheless set himself the task of distinguishing those basic rights that he and his supporters viewed as "of the essence of a scheme of ordered liberty" from those without which "justice would not perish" and which were not therefore "implicit in the concept of ordered liberty." Explaining his rationale further, he wrote movingly of "those fundamental principles of liberty and jus­ tice which lie at the base of all our civil and political institutions," and of principles, "so rooted in the tradi­ tions and conscience of our people as to be ranked as funda­ mental." Cardozo referred to "freedom of thought and speech" as his cardinal illustration of what he meant by "funda­ mental" when he stated: "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a 185 pervasive recognition of that truth can be traced in our history, political and legal. . . .""° Justice Harlan noted the Supreme Court's acceptance of First Amendment incorporation into the due process clause when, in a 1958 opinion for a unanimous Court, he wrote that Alabama's requiring the NAACP to make public its membership lists fell afoul of the Fourteenth Amendment. Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedom of speech and assembly. ... It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment.381 The constitutional guarantees of freedom of expression were intended generally to put an end to restraints and limitations which at one time in English history had been imposed on the right of public speaking and writing. The safeguarding of freedom of expression is a national constitu­ tional policy in America, and this freedom is not confined to any field of human interest. The First Amendment does not speak equivocally and, if it is to be taken literally, pro­ hibits any law abridging the freedom of speech or of the

38"lbid., p. 327. 381NAACP v. Alabama, 357 U.S. 449, 460 (1958). Jus­ tice Harlan's opinion for the Court made it explicit for the first time that freedom of association was protected by the Constitution. 186 press, and is to be taken as a command of the broadest scope that explicit language, read in the context of a liberty- loving society, will allow. For certain judges the Bill of Rights, especially the freedoms enumerated in the First Amendment, constitute the basis of all our civil and political institutions and, as such, they are entitled to a preferred position in the heir- archy of constitutional protection. This position was first articulated by a Supreme Court Justice in the celebrated "footnote 4" of United States v. Carolene Products Co.,382 where Justice Stone suggested--in highly tentative language-- that the Court might properly employ more stringent tests when reviewing legislation or official action that affected speci­ fic First Amendment rights, restricted normal political pro­ cesses, or focused upon "discrete or insular" minorities. Then in Murdock v. Pennsylvania,3 83 in striking down a license tax on religious colporteurs, the Court remarked that "freedom of press, freedom of speech, freedom of religion are

382304 U.S. 144, 152 (1938). Justice Stone began his footnote by asserting that "There may be narrower scope for operation of the presumption of constitutionality when leg­ islation appears on its face to be within a specific prohi­ bition of the Constitution, such as those of the first ten amendments, which are seemed equally specific when held to be embraced within the Fourteenth."

"3319 U.S. 105, 115 (1943). See also West Virginia State Board of Education v. Barnette, 319 U.S. 624, 636 (1945). 187 in a preferred position." Two years later the Court indi­ cated that its decision with regard to the constitutionality of legislation regulating individuals is "delicate . . . [especially] where the usual presumption supporting legisla­ tion is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions."38" This conception of a preferred position for certain freedoms was firmly adopted by some of the Justices, notably Black and Douglas among Harlan's brethern on the Supreme Court.385 For others the idea was embraced only on occasion and, in recent years, the Court has not used the "preferred position" expression, but the philosophy lingers. In opposition to the concept, Justice Frankfurter, adhering to the teachings of his Harvard Law School mentor, Professor James Bradley Thayer, saw no reason to concede a preference

3 8 kThoma s v. Collins, 323 U.S. 516, 529-530 (1945) 3 "During the last year of his service on the Supreme Court, in 1971, Justice Black reiterated, in an obscenity case, the preferred freedom position he had taken twenty years earlier in Dennis v. United States, 341 U.S. 494, 581 (1951). "In any society there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, that in calmer times, when pre­ sent pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society." United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 387 (1971). 188 to the Bill of Rights.386 Justice Harlan, often identified in this study with the Thayer'tradition of judicial self- restraint, was allied with Frankfurter's position which com­ ported with their frequently expressed view that the Supreme Court is an essentially undemocratic institution, one that should defer to the decisions of the elective branches on virtually all occasions. They argued that the independence of the judiciary is threatened when courts become embroiled in the passions of the day and assume primary responsibility in choosing from competing political, economic and social pressures. Justice Harlan was among a minority of Supreme Court Justices who consistently rejected the rationale that incor­ poration of the Bill of Rights into the Fourteenth Amendment means that such rights operate with equal force and impose the same standards upon the states as upon the feceral govern- * ment. Although, as pointed out in Chapter II, the "total incorporation" theory has never gained majority support on the Supreme Court, its proponents have virtually accomplished their goal. By the time Justice Harlan's tenure on the Court ended in 1971, only a few provisions of the Bill of Rights of

386Speaking of the preferred position concept, Frank­ furter argued that it was "a michievous phrase, if it carries the thought, which it may subtly imply, that any law touch­ ing communication is infected i^ith presumptive invalidity." Kovacs v. Cooper, 336 U.S. 77, 90 (1949) (collecting cases with critical analysis). 189 minor importance to the states, had not been incorporated into the Fourteenth Amendment. Thus the controversy between those who urge that due process incorporates the entire Bill of Rights and those who take a contrary view is rendered all but academic. But the Warren Court did more than hold the important rights of the Bill of Rights binding on the states. It also broadened the substantive content of the Rights, giving virtually all personal rights a wider meaning than they theretofore had in American law. This was particularly true in two crucial areas: criminal justice and freedom of expression, subjects elucidated, respectively, in Chapter II and this chapter. Justice Harlan, an opponent of all forms of incorpor­ ation, railed against the gradual process of incorporation when in Malloy v. Hogan,387 in 1964, he contended that this approach "is in fact nothing more or less than 'incorpora­ tion' in snatches." Explaining, it was his contention in Malloy that "If, however, the Due Process Clause [of the Fourteeenth Amendment] is^ something more than a reference to the Bill of Rights and protects only those rights which derive from fundamental principles . . . , it is just as contrary to precedent and just as illogical to incorporate [them] one at a time as it is to incorporate them all at once."388

"7378 U.S. 1 (1964) . "8Ibid., p. 27. 190 (Emphasis in original.) Harlan reiterated this same theme in Pointer v. Texas,389 one year later, while concurring in the Court's decision guaranteeing the right of confrontation in state cases, but objecting to the constitutional reasoning of the Court. To him the confrontation guarantee was "implicit in the concept of ordered liberty," using Cardozo's approach and phrase in the Palko case. Harlan argued that the majority opinion incorporating the guarantee into the Fourteenth Amendment was simply "another step in the onward march of the long-since discredited 'incorporation' doc­ trine. . . .""" In 1968, in Duncan v. Louisiana,391 Justice Harlan launched another full-scale onslaught on the "total incor­ poration" doctrine. Attacking the Court's incorporation of the Sixth Amendment guarantee of jury trial, Harlan claimed that "the Court's approach [to the case] and its reading of history are altogether topsy-turvy."392 Hence, as described in Chapter II of this study, he rejected the view that it was the intention of those who drafted the Fourteenth Amendment to incorporate the first eight amendments. To him Justice Black's interpretation of the legislative history of the

"9390 U.S. 400 (1965). ""Ibid., p. 408. 391391 U.S. 145 (1968). 392Ibid., p. 173. 191 Fourteenth Amendment, as set forth in his Adamson dissent in support of "total incorporation," had been thoroughly dis­ credited by Professor Fairman.393 "In short," Harlan con­ cluded, "neither history, nor sense, supports using the Fourteenth Amendment to put the states in a constitutional straight-jacket with respect to their own development in the administration of criminal or civil law."39" For Harlan, the "only one method of analysis that has any internal logic is to start with the words 'liberty' and •due process' and attempt to define them in a way that accords with American traditions and our system of government."395 The system of government Harlan referred to is the federal system with its dispersion of power among the various levels of government.

393Adamson v. California, 332 U.S. 46, 68, 90 (1947). Black sought to prove that the Bill of Rights was incorporated in the Fourteenth Amendment by showing that such an incorpor­ ation was intended by•the framers of the amendment. After an extensive analysis of the history of the passage of the amend­ ment, Fairman concludes: "In his [Black's] contention that Section I was intended and understood to impose Amendments I to VIII upon the states, the record of history is overwhelm­ ingly against him." Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Under­ standing," Stanford Law ;Review, 2 (December, 1949), 5, 139. ""Duncan v. Louisiana, 391 U.S. 145, 175-76 (1968). Justice Harlan earlier, in an obscenity case, used the expression, "straight jacket," to describe the Supreme Court majority's setting aside of a state's seizure of books. See, infra, n. 431. 395I.bid., p. 176. 192 The casual reader of Justice Harlan's attacks on the application of the Bill of Rights to the states under the incorporation doctrine is prone to think of him as taking a restrictive view of civil liberties when they collide with the authority of the states. To the contrary, as perhaps best exemplified in his opinions in Poe v. Ullman396 and Griswold v. Connecticut,397 Harlan saw the incorporation doc­ trine as a threat to the enlargement of freedom. Arguing for a substantive, general interpretation of due process, Harlan asserted in Poe: . . . it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, . . . those concepts which are considered to embrace those rights 'which are . . . fundamental;' which belong ... to the citizens of all free governments. . . . Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. Indeed the fact that an identical provision limiting fed­ eral action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an inde­ pendent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibi-

In Griswold, Harlan concurred with the Court's judg­ ment striking down Connecticut's ban on contraceptives, but he took issue with the reasoning of the Court when he said

396367 U.S. 497, 522 (1961) . 397381 U.S. 479, 499 (1965). 398Poe v. Ullman, 367 U.S. 497, 541-42 (1961). 193 that he could not accept the view that in order for a state statute to fall before the due process clause of the Four­ teenth Amendment it must be found "to violate some right assured by the letter or penumbra of the Bill of Rights." Expanding upon his argument for a general, substantive due process approach to determining rights protected by the con­ stitution against state abridgement, Harlan said: . . . what I find implicit in the Court's opinion is that the 'incorporation' doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the 'incorporation' approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. (Emphasis in original.) In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the con­ cept of ordered liberty,' .... While the relevant inquiry may be aided by resort to one or more of the pro­ visions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

A further observation seems in order respecting the justification of my Brothers Black and Stewart for their 'incorporation' approach to this case. Their approach does not rest on historical reasons, which are of course wholly lacking, . . . but on the thesis that by limiting the content of the Due Process Clause of the Fourteenth Amendment to the protection of rights which can be found elsewhere in the Constitution, in this instance in the Bill of Rights, judges will thus be confined to 'inter­ pretation' of specific constitutional provisions, and will thereby be restrained from introducing their own notions of constitutional right and wrong into the 'vague con­ tours of the Due Process Clause.' . . . 194 While I could not more heartily agree that judicial 'self restraint' is an indispensable ingredient of sound constitutional adjudication, I do submit that the formula suggested for achieving it is more hollow than real. 'Specific' provisions of the Constitution, no less than 'due process,' lend themselves as readily to 'personal' interpretations by judges whose constitutional out-look is simply to keep the Constitution in supposed 'tune with the times.' . . .

Judicial self-restraint will not, I suggest, be brought about in the 'due process' area by the histor­ ically unfounded incorporation formula long advanced by my Brother Black, and now in part espoused by my Brother Stewart. It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and x^ise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. . . . Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause.399

The incorporation controversy, discussed here and in Chapter II, is germain to the principal subject of this chap­ ter, that is, the application of the First Amendment to the states in the area of freedom of expression. The central question raised by the considerations of federalism developed here is whether the liberty which the Fourteenth Amendment

399Griswold v. Connecticut, 381 U.S. 499-501 (1965). The Harlan notion about general due process became Supreme Court doctrine in a 1971 case when the Court held, with Harlan writing an opinion for six members of the Court, that a state denies due process of law to indigent persons by refusing to permit them to bring divorce actions except on payment of Court fees and service-of-process costs which they are unable to pay. Boddie v. Connecticut, 401 U.S. 371, 372 (1971). 195 protects against state impairment is the literal and ident­ ical freedom of speech, or of the press, which the First Amendment protects against federal abridgement. Justice Harlan offered vigorous opposition to the equivalence position because, to him, such a construction would do violence to the principle of federalism, a corner­ stone upon which he believed the Republic was founded. Har­ lan saw federalism as a constitutionally mandated ve.rtical and horizontal distribution of powers in the American polity by virtue of the structure of government provided for in the Constitution and reinforced by the Tenth Amendment. Justice Harlan put the Bill of Rights in the perspec­ tive of his strong attachment to federalism as a protector of liberty, per se, in an article published, in 1964, in the American Bar Association Journal. After reviewing the language of each of the ten amendments, Justice Harlan con­ tinued: While these amendments symbolize the respect for the individual that is the cornerstone of American political concepts, it would be a grave mistake to regard them as the full measure of the bulwarks of our free society. Except for the first three amendments, they are largely procedural protections against particular kinds of arbitrary governmental action and touch the activities of relatively few people; standing alone they do not account for the broad spectrum of freedoms which the people of this country enjoy. They were indeed not a part of the original handiwork of the framers of the Constitution. The men who wrote the Constitution recognized, with unmatched political wisdom, that true liberty can rise no higher or be made more secure than the spirit of a people to achieve and maintain it. Their prime concern was to devise a form of government for the new nation 196 under which such a spirit might thrive and find the fullest opportunity for expression. The amendments com­ prising the Bill of Rights followed only after the structure of government had been established by the Constitution proper. . . . In short, as the debates at the Constitutional Con­ vention and the terms of the Constitution itself both reveal, the framers proceeded on a premise which many years later Judge Learned Hand was to state in the fol­ lowing words: 'Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court even can do much to help it.' They staked their faith that liberty would prosper in the new nation not primarily upon declarations of individual rights but upon the kind of government the Union was to have. And they determined that in a government of divided powers lay the best promise for realizing the free society it was their object to achieve.

The matter had a double aspect: first, the division of governmental authority between the states and the central government; second, the distribution of power within the federal establishment itself. (Emphasis in original.) The former, doubtless born not so much of political principle as of the necessity for achieving a more perfect union than had proved possible under the Articles of Confederation, was solved by making the authority of the Federal Government supreme within the sphere of powers expressly or impliedly delegated to it and reserving to the states all other powers--a reserva­ tion which subsequently found express protection in the Bill of Rights through the provisions of the Tenth Amend­ ment. The second aspect of the governmental structure was solved, purely as a matter of political theory, by distributing the totality of federal power among the legislative, executive and judicial branches of the govern­ ment, each having defined functions. Thus eventuated the two great constitutional doctrines of federalism--often inaccurately referred to as the doctrine of states' rights —and separation of powers.

These doctrines lie at the root of our constitutional system. It is manifest that no view of the Bill of Rights or interpretation of any of its provisions which fails to 197 take due account of them can be considered consti­ tutionally sound."00 The obscenity cases discussion that follows discloses the tension generated in the American polity when the Supreme Court is called upon to balance and accommodate the demands of freedom of expression and federalism. Beyond the scope of this study are many of the freedom of expression cases in which Justice Harlan wrote notable opinions, often defending civil rights, but in which no consideration of federalism was involved, or if present, was not articulated."01 Selected for presentation here are those freedom of expression cases in which the central focus is on the rela­ tionship between the national government on the one hand and the state and local governments on the other, with the inter­ play of the First and Fourteentli Amendments being in the fore­ front of the litigation. This facet of the nationalization of the Bill of Rights by the Warren Court during Justice

""John M. Harlan, "The Bill of Rights and the Con­ stitution," American Bar Association Journal, 50 (June, 1964), 918-20. "01See, e.g. Yates v. United States, 354 U.S. 298, 300 (1957); Lerner v. Casey, 357 U.S. 468, 470 (1958); Baren- blatt v. United States, 360 U.S. 109, 111 (1959); Talley v. California, 362 U.S. 60, 66 (1960); Shelton v. Tucker, 364 U. S. 479, 496 (1960); Konigsberg v. California, 366 U.S. 36, 37 (1961); In re Anastaplo, 366 U.S. 82, 83 (1961); Cohen v. Hurley, 366 U.S. 117, 118 (1961); Scales v. United States, 367 U.S. 203, 205 (1961); Garner v. Louisiana, 368 U.S. 157, 185 (1961); Spevack v. Klein, 385 U.S. 511, 520 (1967); Cohen v. California, 403 U.S. 15 (1971); New York Times Co. v. United States, 403 U.S. 713, 752 (1971). 198 Harlan's tenure will be examined in the context of the obscenity cases. Chief Justice Warren regarded the obscenity question, in retrospect, as the Court's "most difficult" area of adjudication, and Professor C. Peter Magrath called the Court's struggle with the obscenity issue a "constitutional disaster area.""02 The problem concerning the relationship of laws and morals is hardly a new one. From the inception of the "state," such a relationship had been recognized as intrinsic to the organization and development of society. As Justice Harlan pointed out in Poe v. Ullman: . . . the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well."03 What remains unique about the subject and perhaps . what affords it the strength to withstand the endless onslaught of probing by philosophers and legal minds, is the fact that each time the subject is raised, it encompasses an everchanging range of meanings. In an age of overwhelming diversification, when it has become increasingly difficult to pinpoint the "average man," or the "common morality," we

""The New York Times, June 27, 1969, p. 11; C. Peter Magrath, "The Obscenity Cases: Grapes of Roth," in The Supreme Court Review, ed. by Philip B. Kurland, (Chicago: University of Chicago Press, 1966), p. 7. "03367 U.S. 497, 545 (1961) . 199 call upon the state for a more believable and justifiable set of credentials before being convinced of its authority to infringe upon those areas of our lives where law and morality seem to interface. Experience demonstrates that while morality cannot be legislated, moral behavior can be regulated. The legal regulation of moral behavior is one of the least satisfactory aspects of political life. Law and morals are two separate categories, and the function of each is generally distinct from the other. Simply put, law deals with the "is" while morality is concerned with the "ought." Law attempts to con­ trol the formal public behavior of members of society, while morality usually concerns the' private standards of conduct by which men determine their duties toward each other and toward themselves. Law is public, universal in application, and supported by the apparatus of government, while morality is private, individual in application, and supported by the informal sanctions of social groups. However, when law is assigned the task of enforcing moral conduct the distinc­ tions between law and morality become blurred.

There is no way to completely eliminate the moral element from the law. All laws express a preferred kind of public policy and, to that extent, define behavior as either "right" or "wrong." As the late Professor Edmond Cahn said, "there are moral values in the law and there are moral values outside the law; the only practical difference between them 200 is in the respective methods by which they are enforced.""0" In the legal systems of the Western World only certain aspects of morality have been selected for judicial enforce­ ment. Judges are not appointed as general censors of mor­ ality. It may be that a judge will extend his private sense of morality to the case before him, but he cannot transform a private wrong into a public one unless some statute or common-law rule permits it. Of course, the judge must apply his moral values when he evaluates the "moral character" and credibility of a witness testifying before him."05 But a judge is not a moral legislator. As Cardozo noted in a classic statement in 1921: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.""06

Obscenity law provides a good illustration of leg­ islatures and courts struggling with conflicting moral values. The changes in attitudes about sex which took place in American society during the 1950s down to the present time were greeted with horror by those who retained traditional

"""Edmond Cahn, The Moral Decision (Bloomington: Indiana University Press"] 1956), p. 47^ "05Ibid., p. 310. ""Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) , p. 141. 201 concepts of sexual morality. Topics such as pornography, adultery, fornication, homosexuality, illegitimacy and abortion became subjects of open discussion during this era. Traditional concepts of the "lewd" and "lascivious" were challenged by persons in the arts, as well as conventional smut peddlers. During this period magazines have established large circulations by exploiting naked male and female photo­ graphs, while sexual parts are prominently displayed on art gallery walls. The so-called "X-rated" movies, some artistic and others patently pandering to the prurient sexual interests of viewers, enjoyed considerable box-office success. Our laws dealing with obscenity may be traced to 1857 when under an English statute known as "Lord Campbell's Act" the publication of obscene matter was made a crime. This act gave magistrates the power to order the destruction of books and prints if, in their opinion, publication of them would amount to a misdemeanor. In 1868, the Lord Chief Jus­ tice Cockburn in the case of Regina v. Hicklin"07 enunciated the first obscenity standard when he stated: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.""08 In Hicklin,

"07L.R. 3 W.B. 360 (1868). "08Ibid., p. 371. 202 the court held that a work would be obscene if in the opin­ ion of the least sophisticated elements of the community any isolated part of the work appeared as such. It is noteworthy that this rule did not examine the whole manuscript and used the persons who were susceptible to influence as the cri­ terion. This rigid test was long utilized in most American jurisdictions,"" and was not seriously challenged until 1913 in United States v. Kinnerley,"1 ° where Judge Learned Hand said: "To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necess­ ities of the lowest and least capable seems a fatal policy.""11 The Hicklin standard was rejected outright twenty-one years after Kinnerley when James Joyce's most celebrated novel, Ulysses, was ruled not to be obscene, and the court indicated that the issue of obscenity in literary works depended upon the relevancy of sexual descriptions to the theme of the book, rather than its possible effect upon the reader."12

""See generally William B. Lockhart and Robert C. McClure, Censorship of Obscenity: the Developing Constitu­ tional Standards, Minnesota Law Review. 45 (November, 1960), 5-121. "10209 Fed. 119 (S.D.N.Y. 1913). I,xllbid. , p. 121. "12United States v. One Book Entitled Ulysses, 5 F. Supp. 182 (S.D.N.Y. 1933), aff'd, 72 F.2d 705 (2d Cir. 1934). The decision may be conveniently consulted in the Modern Library Edition of James Joyce, Ulysses (1942), where it is printed in full with an introduction by Morris L. Ernst. 203 Furthermore, the court asserted that it was necessary to examine a work in its entirety and the purpose of its con­ tents . There is no clear agreement as to what social inter­ ests are sought to be protected by the laws restricting expression on grounds of obscenity. The main justifications for such legislation, however, would seem to fall into the following categories: (1) that the expression has an adverse moral impact, apart from any effect upon overt behavior; (2) that the expression may stimulate or induce subsequent con­ duct in violation of law; (3) that the expression may produce adverse effects on personality and attitudes which in the long run lead to illegal behavior; (4) that the expression has a shock effect, of an emotionally disturbing nature; and (5) that the expression has espcially adverse effects, of the sort described in the previous categories, upon children, who are intellectually and emotionally immature. Most of the factual assumptions underlying these justification are unsupported by empirical evidence."13 The ultimate resolution

"13See Report of The President's Commission on Obscenity and Pornography (Washington, D.C: Government Printing Office, 1970), pp. 25-7; Robert B. Cairns, James C.N. Paul and Julius Wishner, "Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence," Minnesota Law Review, 46 (May, 1962), 1009-41; James C.N. Paul and Murray L. Schwartz, Federal Censorship: Obscenity in the Mail (New York: Free Press, 1961); Harry Kalven, Jr., "The Metaphysics of the Law of Obscenity," in The Supreme Court Review, ed. by Philip B. Kurland (Chicago! University of Chicago Press, 1960), p. 1; Lockhart F, McClure, op.cit., n. 409. 204 of the obscenity issue will undoubtedly be influenced by the development of a body of scientific knowledge pertaining to these matters. One of the unanticipated consequences of the sexual revolution of our times has been to make the Supreme Court our national authority on obscenity and, in the words of Justice Black, a "Super Censor." Until 1957, the subject of obscenity had received relatively little attention from the Court. However, in that year, the Court decided the foun­ tainhead cases of Roth v. United States and Alberts v. Cal­ ifornia, "1" and thereby commenced what has proved to be one of the most perplexing and politically sensitive tasks the Court has undertaken--determining the constitutional limita­ tions on the power of federal, state and local governments to regulate obscenity. After more than a decade of obscenity

"L"354 U.S. 476 (1957). A few weeks before the Roth and Alberts decisions, the Supreme Court ruled unanimously that a state could not punish a person who made available to the adult population literature that would "manifestly tend to the corruption of the morals of youth." The Court said: "The incidence of this enactment is to reduce the adult pop­ ulation of Michigan to reading only what is fit for children." This, added the Court, "is to burn the house to roast the pig." Butler v. Michigan, 352 U.S. 380 (1957). In 1948, the Court signalled that it would consider First Amendment consti­ tutional issues in its decision in Doubleday S Co. v. New York, 335 U.S. 848 (1948). The obscenity cases which the Court decided prior to 1948 were all decided upon the procedural aspects of due process and all concerned postal regulations, starting with an 1865 federal statute prohibiting the mailing of pornographic publications to men in the army. In 1873 this legislation was widened to include pictorial matter and infor­ mation about abortifacients and contraceptives. These stat­ utes were upheld in Ex Parte Jackson, 96 U.S. 727 (1877). See U.S.v. Reidel, 402 U.S. 351 (1971). 205 decisions by the Supreme Court, Justice Harlan was prompted to observe in one of his opinions that "no stable approach to the obscenity problem has yet been devised by this Court.""15 The acuity of this observation will become appar­ ent in the case law explication that follows. The Supreme Court's joinder of Roth, a federal case, and Alberts, a state case, for common decision and the same disposition is further evidence of the extent to which the First Amendment has become nationalized and incorporated as a part of the Fourteenth. . The combining of these cases for joint decision suggests that the Court considered to be iden­ tical the relevant policy norms associated, respectively, with the First and Fourteenth Amendments. As will be revealed in the following discussion, Justice Harlan argued vigor­ ously that because of the dictates of federalism a federal case and a state case ought to be judged by different stan­ dards and, in the instant cases, decided oppositely.

The Roth and Alberts cases dealt with the always- difficult problem of balancing obscenity laws against the requirements of the First and Fourteenth Amendments. The Roth case involved a federal statute making criminal the transmission of obscene matter through the mail. The man who lent his name to this litigation was an experienced

"l5A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts^ 383 U. S 413, 455 (1966). 206 dealer in erotica in New York City. Roth was convicted of sending books called Good Times, A Review of the World of Pleasure and a quarterly called American Aphrodite, through the mails. In the Alberts case, a conviction was based on a California statute which made the distribution of obscene materials a crime. The Supreme Court, agreeing that this was the first time the constitutional issue had been "squarely presented" to it under either the First or the Fourteenth Amendment, sustained the validity of both the federal and the state regulation and the convictions. The opinion of the majority of five was by Justice Brennan, and Chief Justice Warren filed a separate concurring opinion in which he expressed doubts as to the wisdom of the broad language used in the majority opinion. Justices Black and Douglas, both absolutists about the First Amendment, dissented, and Justice Harlan, while admitting a dislike for obscenity, dissented in Roth, but stood with the majority in Alberts.

In his opinion for the Court, Justice Brennan emphasized that ideas with the "slightest redeeming social importance must be accorded the full protection of the First Amendment." But since obscene material is "utterly without redeeming social importance," it is not protected expression. The test, said Brennan, is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient inter­ ests." While this test was considered an improvement over 207 the Hicklin test that allowed material to be judged by the impact of isolated passages upon particularly susceptible persons, in practice it opened up a Pandora's box of ques­ tions for law enforcement officials and the lower courts. What does the term "prurient interest',' mean? Who is the "average person"? What is "redeeming social importance"? Who determines "contemporary community standards" and what is the "relevant community"? Overlaying all of these ques­ tions was Justice Harlan's often-asserted position that fed­ eralism made it possible for federal and state authorities to provide answers that need not coincide. As seen in the obscenity opinions selected for presentation in this chapter, no consistent consensus of the Justices of the Supreme Court has emerged with respect to these issues. Justice Harlan wrote an opinion concurring in the result in the Alberts case, but dissenting in the Roth case. Before addressing himself to each of the cases separately, Harlan described the role of the Supreme Court in obscenity cases generally and, in particular, the need to recognize the claims of federalism. My basic difficulties with the Court's opinion are three fold. First, the opinion paints with such a broad brush that I fear it may result in a loosening of the tight reins which state and federal courts should hold upon the enforcement of obscenity statutes. Second, the Court fails to discriminate between the different factors which, in my opinion, are involved in the constitutional adjudication of state and federal obscenity cases. (Emphasis added.) Third, relevant distinctions between 208 the two obscenity statutes here involved, and the Court's own definition of 'obscenity,' are ignored."16 Elaborating upon the second difficulty Harlan per­ ceived in the Court's opinion, he deplored the failure of the Court to recognize constitutional differences between state and federal regulation of obscenity. My second reason for dissatisfaction with the Court's opinion is that the broad strides with which the Court has proceeded has led it to brush aside with perfunctory ease the vital constitutional considerations which, in my opinion, differentiate these two cases. It does not seem to matter to the Court that in one case we balance the power of a State in this field against the restric­ tions of the Fourteeenth Amendment, and in the other the power of the Federal Government against the limitations of the First Amendment."17

In his dissent from the Court's opinion in Roth, Harlan continued to expound about the need to differentiate federal and state legislation in the obscenity field. Harlan explained that the exercise of federal power in the obscenity field is incidental to the national government's express powers such as postal and commerce, while the states act under their broad police power to promote the health, safety, morals and welfare of the public, the powers of government inherent in every sovereignty. We are faced here with the question whether the fed­ eral obscenity statute, as construed and applied in this case, violates the First Amendment to the Constitution. To me, this question is of quite a different order than

"16354 U.S. 476, 496 (1957) . "17Ibid., p. 498. 209 one where we are dealing with state legislation under the Fourteenth Amendment. I do not think it follows that state and federal powers in this area are the same, and that just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same. I agree with Mr. Justice Jackson that the historical evidence does not bear out the claim that the Fourteenth Amend­ ment 'incorporates' the First in any literal sense.

The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Govern­ ment. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the ques­ tion of whether those other interests are state or federal. Since under our constitutional scheme the two are not necessarily equivalent, the balancing process must needs often produce different results. Whether a particular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has, under the Constitution, a direct substan­ tive interest, that is, the power to act, in the particular area involved.

The Federal Government has, for example, power to restrict seditious speech directed against it, because that Government certainly has the substantive authority to protect itself against revolution. . . . But in deal­ ing with obscenity we are faced with the converse situ­ ation, for the interests which obscenity statutes pur­ portedly protect are primarily entrusted to the care, not of the Federal Government, but of the States. Con­ gress has no substantive power over sexual morality. Such powers as the Federal Government has in this field are but incidental to its other powers, here the postal power, and are not of the same nature as those possessed by the States, which bear direct responsibility for the protection of the local moral fabric. . . .

Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our federal system is that 210 we have, in the forty-eight States, forty-eight exper­ imental social laboratories. State statutory law reflects predominantly this capacity of a legislature to introduce novel techniques of social control. The fed­ eral system has the immense advantage of providing forty-eight separate centers for such experimentation. Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be classed as obscene in another. And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books .

Quite a different situation is presented, however, where the Federal Government imposes the ban. The danger is perhaps not great if the people of one State, through their legislature, decide that 'Lady Chatterley's Lover' goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. The prerogative of the States to differ on their ideas of morality will be destroyed, the ability of States to experiment will be stunted. The fact that the people of one State cannot read some of the works of D.H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment.

I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nation-wide federal censorship, and in view of the fact that the constitutionality of this con­ viction must be weighed against the First and not the Fourteenth Amendment. So viewed, I do not think that this conviction can be upheld."18

Ibid., pp. 503-07. 211 In Justice Harlan's concurrence with the Supreme Court judgment affirming the state conviction in Alberts, he first explains the self-restraint the Court must exercise in reviewing a conviction under state law, and then he describes what he believes to be the Court's responsibility in exam­ ining an obscenity determination made by the state author­ ities . The question in this case is whether the defendant was deprived of liberty without due process of law when he was convicted for selling certain materials found by the judge to be obscene because they would have a 'ten­ dency to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire.' In judging the constitutionality of this conviction, we should remember that our function in reviewing state judgments under the Fourteenth Amendment is a narrow one. We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. The States' power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of 'ordered liberty.'

What, then, is the purpose of this California sta­ tute? Clearly the state legislature has made the judg­ ment that printed words can 'deprave or corrupt' the reader — that words can incite to antisocial or immoral action. The assumption seems to be that the distribution of certain types of literature will induce criminal or immoral sexual conduct. It is well known, of course, that the validity of this assumption is a matter of dis­ pute among critics, sociologists, psychiatrists, and penologists. There is a large school of thought parti­ cularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California to accept as truth the most advanced and sophisticated psychiatric 212 opinion. It seems to me clear that it is not irra­ tional, in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the moral fabric of society. In fact the very division of opinion on the subject counsels us to respect the choice made by the State. Furthermore, even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cogni­ zance of the States may be protected by the prohibition placed on such materials. The State can reasonably draw the inference that over a long period of time the indis­ criminate dissemination of materials the essential char­ acter of which is to degrade sex, will have an eroding effect on moral standards. And the State has a legiti­ mate interest in protecting the privacy of the home against invasion of unsolicited obscenity.

Above all stands the realization that we deal here with an area where knowledge is small, data are insuf­ ficient, and experts are divided. Since the domain of sexual morality is pre-eminently a matter of state con­ cern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible com­ mand of the Due Process Clause forbids California to prosecute one who sells books whose dominant tendency might be to 'deprave or corrupt' a reader. I agree with the Court, of course, that the books must be judged as a whole and in relation to the normal adult reader.

What has been said, however, does not dispose of the case. It still remains for us to decide whether the state court's determination that this material should be suppressed is consistent with the Fourteenth Amendment; and that, of course, presents a federal question as to which we, and not the state court, have the ultimate responsibility. And so, in the light of the considera­ tions discussed above, I cannot say that its suppression would so interfere with the communication of 'ideas' in any proper sense of that term that it would offend the Due Process Clause. I therefore agree with the Court that appellant's conviction must be affirmed."19

"19Ibid., pp. 500-03. 213 Justice Harlan propounded a position in Roth and Alberts that he consistently adhered to in his later obscenity opinions. In the first place, Harlan rejected, as he did in the criminal procedure cases discussed in Chapter II, the doctrine that the Fourteenth Amendment incorporates, in any literal sense, the provisions of the Bill of Rights. Rather, he insisted that the restraints imposed on the fed­ eral government by the First Amendment may differ substan­ tially from those imposed on the states by the Fourteenth Amendment. In Harlan's view, "federal suppression of allegedly obscene matter should ... be constitutionally limited to that often described as 'hard-core pornography.'" He did not attempt to justify even this degree of federal censorship in terms of standards which are applicable to other categories of speech; he merely notes offhandedly that "the Federal Government may be conceded a limited interest in excluding from the mails such gross pornography, almost universally condemned in this country." But while tolerating federal censorship only of "hard­ core pornography," Harlan would apply a different standard to the states under the Fourteenth Amendment. As we will see, he described that standard in varying terms in his dif­ ferent opinions. In his concurring opinion in Alberts, Harlan saw the Supreme Court's inquiry as involving a balancing of the state's power to make printed words criminal over against the fundamental freedom and ordered liberty 214 protected by the Fourteenth Amendment. Having found that the California legislature had judged, notwithstanding the conflict of scientific evidence, that printed words can deprave or corrupt one who reads them, Harlan stated "that it is not irrational, in our present state of knowledge, to con­ sider that pornography can induce a type of sexual conduct which a state may deem obnoxious to the moral fabric of society." Moreover, Harlan found that, besides the preven­ tion of illegal behavior, there were other interests which might be protected by a state prohibition of obscene mater­ ials, and that those interests were within the cognizance of state regulation. One danger stemming from Justice Harlan's position is that if the states determine what is obscene, publishers will have to litigate in every state in defense of their books. Grove Press faced this problem in regard to Henry Miller's Tropic of Cancer, which was subjected to legal action in numerous states and localities."20 Multiplicity of legal actions is to be expected in a federal system and adherents to Harlan's philosophy would say that this is a small price to pay for the preservation of the values of federalism.

"20See E.R. Hutchison, Tropic of Cancer on Trial: A Case History of Censorship (New York: Grove Press, 196 8) ; Charles Rembar, The End of Obscenity (New York: Random House, 1968), pp. 168-215. 215 Justice Harlan's differentiation between federal and state authority in obscenity matters brings to mind Justice Holmes' dissent in Gitlow v. New York, in which he noted the possibility that the First Amendment might apply less stringently to the states than to the federal government."21 Holmes, however, was content merely to note the possibility. The point remained unnoticed until Justice Jackson argued vigorously for applying differential constitutional standards in freedom of expression cases involving libel in federal and state cases,"22 and Justice Harlan, Jackson's formal and philosophical successor on the Court, carried the position forward in the obscenity cases. However, a majority of the Supreme Court Justices were not persuaded to embrace this doctrine during Harlan's tenure on the Court.

Over the years since its intrusion into the moral thicket represented by the obscenity field, the Supreme Court attempted to provide some answers to knotty questions raised in the Roth and Alberts cases and Justice Harlan was in the forefront of the discourse. In Manual Enterprises v.

"21The Holmes caveat was as follows: "The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." Gitlow v. New York, 268 U.S. 652, 672 (1925). "22Beauharnais v. Illinois, 343 U.S. 250, 288-95 (1952). 216 Day,"2 3 the Court narrowed the sweep of its "prurient inter­ est" test by holding that to be adjudged obscene, material must not only have "prurient interest" appeal but its "patent offensiveness" must be demonstrated. At issue in Manual Enterprises was whether the Postmaster General could sub­ stitute administrative procedure for legal process, and a majority of the Court said not, but could not agree on an opinion. Justice Harlan announced the judgment of the Court and delivered an opinion joined by Justice Stewart, in which it was stated that the two elements, "prurient interest" and "patent offensiveness," must conjoin to support a finding of obscenity. Applying this test, Harlan contended that the magazines in question, containing photographs of nude males, while "dismally unpleasant, uncouth and tawdry," were not "under any permissible constitutional standard . . . beyond the pale of contemporary notions of rudimentary decency.""2"

The next year Justice Harlan was the lone dissenter when the Supreme Court struck down, as an abridgement of First Amendment liberties protected by the Fourteenth Amend­ ment, the orders of the Rhode Island Commission to Encourage Morality in Youth classifying certain books and magazines as objectionable for sale, distribution, or display to youth

"23370 U.S. 478 (1962). "2"lbid., pp. 489-90. 217 under 18 years of age."25 The Commission followed a prac­ tice of surveying booksellers' shops, noting the titles they sold, and then sending them notices asking them to remove offending books so that the Commission would not be troubled with seeking prosecution under the state's obscenity laws. In an opinion by Justice Brennan, expressing the views of six members of the Court, it was said of the Commission's proce­ dure: The Commission's practice provides no safeguards whatever against the suppression of the nonobscene and constitu­ tionally protected matter; and it is a form of regula­ tion . . . which may be applied only after a determination of obscenity has been made in criminal trial. . . . 426 Justice Harlan, in a dissenting opinion, developed his federalism and judicial self-restraint themes in the fol­ lowing terms. The Court's opinion fails to give due consideration to what I regard as the central issue in this case--the accommodation that must be made between Rhode Island's concern with the problem of juvenile delinquency and the right of freedom of expression assured by the Fourteenth Amendment. The Rhode Island Commission was formed for the laud­ able purpose of combatting juvenile delinquency. While there is as yet no consensus of scientific opinion on the causal relationship between youthful reading or viewing of 'the obscene' and delinquent behavior, Rhode Island's approach to the problem is not without respectable support, . . . The States should have a wide range of choice in dealing with such problems, . . . and this Court should not interfere with state legislative judgments on them

"25Bantam Books v. Sullivan, 372 U.S. 58, 76 (1963). "26Ibid., p. 59. 218 except upon the clearest showing of unconstitution­ ality."2^ Seven years after Roth, the Supreme Court forged another link in the confused chain of obscenity law when, in Jacobellis v. Ohio,428 it reversed the conviction of an Ohio motion picture theater manager for possessing and exhibiting an obscene film. Jacobellis was convicted of exhibiting a French film called Les Amants, the story of a woman who abandons her husband and family when she falls in love with a young archeologist. The last reel of the film contained an "explicit love scene" on which the state based most of its case. The film was favorably reviewed in a number of national publications and was shown in a hundred of the larger cities in the country. The conviction was upheld by the Ohio courts.

Justice Brennan announced the judgment for a badly divided Supreme Court and delivered an opinion, concurred in by Justice Goldberg, in which he expanded upon the "redeem­ ing social importance" concept. Brennan stressed that obscene material is that which is "utterly without redeeming social importance." Conversely, he argued, if material "has literary

"27Ibid., pp. 76-7. Harlan's position here is remi­ niscent of his observation, in a case decided two years after Roth, that "The striking down of local legislation (an obscenity ordinance) is always serious business for this Court." Smith v. California, 361 U.S. 147, 169 (1959). 378 U.S. 184 (1964). 219 or scientific or any other form of social importance (it) may not be branded as obscenity. . . ." Brennan also focused attention on the "contemporary community standards" concept. The "relevant community," he held, must be con­ strued in the broad sense of "society at large." Chief Jus­ tice Warren, joined by Justice Clark, dissented, taking issue with the view that it is a national standard by which obscenity must be measured. Justice Black, joined by Douglas, concurred in the reversal of Jacobellis' conviction on the broad ground that a conviction for exhibiting a motion picture abridges freedom of the press as safeguarded by the First Amendment, which is made obligatory on the states by the Fourteenth Amendment. Justice Stewart concurred on the ground that under the First and Fourteenth Amendments, criminal obi.cer.ity laws are con­ stitutionally limited to "hard-core pornography." While not attempting to define such material in any abstract way, Stewart was content to say "I know it (hard-core pornography) when I see it, and the motion picture involved in this case is not that."

Justice Harlan dissented in Jacobellis on the ground that the Constitution does not prohibit the states from banning any material which, taken as a whole, has been rea­ sonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material. Harlan's 220 opinion contains an overview of his repeated insistence on accommodating the state and local interests he sought to pro­ tect in the obscenity and other arenas of American life, despite the Court majority's refusal in most cases to allign itself with his position. While agreeing with my Brother Brennan's opinion that the responsibilities of the Court in this area are no dif ferent from those which attend the adjudication of kindre constitutional questions, I have heretofore expressed the view that the States are constitutionally permitted greater latitude in determining what is bannable on the score of obscenity than is so with the Federal Govern­ ment. While, as correctly said in Mr. Justice Brennan's opinion, the Court has not accepted that view, I nonethe­ less feel free to adhere to it in this still developing aspect of constitutional law. The more I see of these obscenity cases the more con­ vinced I become that in permitting the States wide, but not federally unrestricted, scope in this field, while holding the Federal Government with a tight rein, lies the best promise for achieving a sensible accommodation between the public interest sought to be served by obscenity laws and protection of genuine rights of free expression. I experience no greater ease than do other members of the Court in attempting to verbalize generally the respective constitutional tests, for in truth the matter in the last analysis depends on how particular challenged material happens to strike the minds of jurors or judges and ultimately those of a majority of the members of this Court. The application of any general constitu­ tional tests must thus necessarily be pricked out on a case-by-case basis, but as a point of departure I would apply to the Federal Government the Roth standards as amplified in my opinion in Manual Enterprises. ... As to the States, I would make the federal test one of rationality. I would not prohibit them from banning any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material. 221 On this basis, having viewed the motion picture in question, I think the State acted within permissible limits in condemning the film and would affirm the judg­ ment of the Ohio Supreme Court."29 Although six different opinions were written in the Jacobellis case, reflecting the confusion and lack of agree­ ment among the members of the Supreme Court, it appeared that certain criteria had been established in the Court's position on obscenity in 1964. These criteria were: (1) The Court will give de novo review to questions of constitutional fact; (2) No material may be examined in isolated parts; (3) A national standard is to be applied in evaluating obscenity; (4) Material with any .amount of social value must be pro­ tected under the First and Fourteenth Amendments; and (5) Obscenity is a variable concept, allowing protection of minors from access to material which may be proper for adults. After the Jacobellis decision, it appeared that a finding of obscenity itself required proof of three distinct elements:

(1) that the material as a whole appeal to prurient interest; (2) that this aspect of appeal dominate other appeal or value of the material; and (3) that the material be "patently offensive." Justice Harlan applied his Jacobellis position to a Kansas case decided the same day in which the majority of the Supreme Court reversed as constitutionally deficient a

"29Ibid., pp. 203-04. 222 state seizure of obscene novels without first allowing an adversary hearing."30 Asserting that Kansas could find the books obscene and that the Constitution does not require an adversary hearing on obscenity before seizure of allegedly obscene matter, Harlan, in a dissent joined by Justice Clark, said: The opinion of Mr. Justice Brennan, in my view, straitjackets the legitimate attempt of Kansas to protect what it considers an important societal interest. It does so in contradiction of a sensible reading of the precedents and without contributing in any genuine way to the furtherance of freedom of expression that our Constitution protects."31 In 1966, the Supreme Court decided three cases which provided, in fourteen opinions, additional guidance on when distributors of literature deemed dangerous to the public morality can be punished. The Court overturned a state rulin that the book popularly known as Fanny Hill, written by John Cleland in 1750, was obscene,"32 and in two other cases the Court upheld criminal convictions of violations of federal and state statutes."33

""A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964). "31Ibid., p. 225. " "A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 387 U.S. 413 (1966) (hereinafter referred to in the text as Fanny Hill). With this decision the American law of obscenity had come full circle. The first reported decision determining that a book was obscene also involved Fanny Hill. Commonwealth v. Holmes, 17 Mass. 336 (1821). " ""Ginzburg v. United States, 383 U.S. 463 (1966); Mishkin v. New York, 383 U.S. 502 (1966). 223 Lower courts in New York and New Jersey ruled Fanny Hill obscene in the early 1960s. Then in 1965 the highest New York court held, four to three, that it was not obscene. The Massachusetts Supreme Court said, four to three, in the same year, that it was obscene, and that case went up on appeal. The Supreme Court cleared Fanny Hill, six to three, but no opinion commanded a majority of the Court. In an opinion joined by Chief Justice Warren and Justice Fortas, Justice Brennan stated three criteria of obscenity and indi­ cated for the first time that each must be satisfied inde­ pendently, that is, "coalesce," before the material can be condemned as obscene. The Brennan opinion stated that "it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.""3"

Justice Brennan emphasized that, although a book may have "prurient interest" appeal and is "patently offensive" it may not be held obscene unless it is "utterly without redeeming social value." Hence, because the trial court found that Fanny Hill contained at least "a modicum of social

"3"A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 587 U.S. 413, 418 (1966). 224 value" its obscenity finding was reversed as being founded on erroneous interpretation of a federal constitutional stan­ dard. Several eminent English professors had testified that Fanny Hill was a work of literary merit, and Justice Douglas cited a minister's sermon to the effect that the book had more power to help married couples than Norman Vincent Peale's Sin, Sex and Self-Control."35 The only prosecution witness was a high school principal who had read the book for the first time the night before he testified. Justice Black concurred in the reversal on the ground that in his view the Court was without constitutional power to censor speech or press regardless of the particular sub­ ject discussed, and Justice Douglas concurred similarly on the basis that the Constitution leaves no power in government over expression of ideas. Justice Stewart, in a concurring opinion, again asserted that, the book not being "hard-core pornography," it could not be classified as obscene. Justice Clark dissented on the ground that in his view the book was obscene, having no conceivable social impor­ tance, and Justice White dissented on the ground that if a state insists on treating Fanny Hill as obscene and for­ bidding its sale, the First Amendment does not prevent it from doing so.

""Ibid., p. 433. 225 In his Fanny Hill dissent, Justice Harlan again argued for the view that differentiation between federal and state power in the obscenity field is permitted by the Con­ stitution. According to Harlan, federal suppression of obscenity should be limited to "hard-core pornography," but the states should be allowed a more flexible approach under their plenary police power. At the same time, Harlan took the occasion of his Fanny Hill dissent to describe the development of obscenity law in the Supreme Court since Roth and to restate his rationale for different federal and state approaches . The central development that emerges from the after­ math of Roth is that no stable approach to the obscenity problem has yet been devised by this Court. Two Justices [Black and Douglas] believe that the First and Fourteenth Amendments absolutely protect obscene and nonobscene material alike. Another Justice [Stewart] believes that neither the States nor the Federal Government may suppress any material save for "hard-core pornography." Roth in 1957 stressed prurience and utter lack of redeeming social importance; as Roth has been expounded in this case, in Ginzburg v. United States, . . . and in Mishkin v. New York, it has undergone significant transformation. The concept of 'pandering,' emphasized by the separate opinion of the Chief Justice in Roth, now emerges as an uncertain gloss or interpretive aid, and the further requisite of 'patent offensiveness' has been made expli­ cit as a result of intervening decisions. Given this tangled state of affairs, I feel free to adhere to the principles first set forth in my separate opinion in Roth, . . . which I continue to believe represent the soundest constitutional solution to this intractable problem.

My premise is that in the area of obscenity the Con­ stitution does not bind the States and the Federal Government in precisely the same fashion. This approach is plainly consistent with the language of the First and Fourteenth Amendments and, in my opinion, more responsive to the proper functioning of a federal system 226 of government in this area. ... I believe it is also consistent with past decisions of this Court. Although some 40 years have passed since the' Court first indi­ cated that the Fourteenth Amendment protects 'free speech,' . . . the decisions have never declared that every utterance the Federal Government may not reach or every regulatory scheme it may not enact is also beyond the power of the State. The very criteria used in opin­ ions to delimit the protection of free speech —the gravity of the evil being regulated . . . how 'clear and present' is the danger; . . . the magnitude of 'such invasion of free speech as is necessary to avoid the danger,' . . . may and do depend on the particular con­ text in which power is exercised.

Federal suppression of allegedly obscene matter should, in my view, be constitutionally limited to that often described as 'hard-core pornography.' To be sure, that rubric is not a self-executing standard, but it does describe something that most judges and others will 'know . . . when they see it' [Justice Stewart's phrase] . . . and that leaves the smallest room for disagreement between those of varying tastes. To me it is plain, for instance, that Fanny Hill does not fall within this class and could not be barred from the federal mails. If further articulation is meaningful, I would character­ ize as 'hard-core' that prurient material that is patently offensive or whose indecency is self-demonstrat­ ing and I would describe it substantially as does Mr. Justice Stewart's opinion in Ginzburg. . . . The Federal Government may be conceded a limited interest in exclud­ ing from the mails such gross pornography, almost uni­ versally condemned in this country. But I believe the dangers of national censorship and the existence of primary responsibility at the state level amply justify drawing the line at this point.

State obscenity laws present problems of quite a dif­ ferent order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and the traditions of local self-government in matters of public welfare all favor a far more flex­ ible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards."36

"36Ibid., pp. 455-58. 227 Apparently, frowning on the "sordid business" of commercializing sex engaged in by some publishers under the guisle of freedom of expression, the Supreme Court, in Ginz- berg v. United States,"37 affirmed, by a vote of five to four, a federal obscenity conviction on the basis of the publisher's motives as revealed by his advertising and promotion methods. Justices Black, Douglas, Harlan and Stewart dissented. The Court found that even if the material involved was not obscene in the abstract, the trial judge's conclusion that the mailing of the publications offended the statute was supported by evidence showing that defendants engaged in the sordid business of pandering, that is, the business of pur­ veying textual or graphic matter openly advertised to appeal to the erotic interest of defendant's customers."38 Justice Harlan had a great deal of difficulty with the "pandering" dimension the Court added to obscenity law. Harlan, in dissent, described this dilemma in the context of the federal and state distinction familiar to the reader of his obscenity opinions. The First Amendment, in the obscenity area, no longer fully protects material on its face nonobscene, for such

"37383 U.S. 463 (1966). ""Ginzburg first tried to mail his publishing firm's advertisements for erotic materials from Blue Ball and Inter­ course, Pennsylvania, but was turned down because of the quantity involved. Later he obtained a bulk mailing permit at Middlesex, New Jersey. 228 material must now also be examined in the light of the defendant's conduct, attitude, motives. This seems to me a mere euphemism for allowing punishment of a person who mails otherwise constitutionally protected material just because a jury or a judge may not find him or his business agreeable. Were a State to enact a 'panderer' statute under its police power, I have little doubt that --subject to clear drafting to avoid attacks on vague­ ness and equal protection grounds —such a statute would be constitutional. Possibly the same might be true of the Federal Government acting under its postal or com­ merce powers. What I fear the Court has done today is in effect to write a new statute, but without the sharply focused definitions and standards necessary in such a sensitive area. Casting such a dubious gloss over a straightforward 101-year-old statute is for me an aston­ ishing piece of judicial improvisation."39

The Mishkin decision,""0 handed down the same day as Fanny Hill and Ginzburg, upheld a conviction of Mishkin for hiring others to prepare obscene books, for publishing obscene books and for possessing obscene books with intent to sell them in violation of a New York penal law. Some fifty books were involved which portrayed sex­ uality in many guises, ranging from normal heterosexual rela­ tions to various deviations such as sado-masochism, fetishism and homosexuality. The books were cheaply printed pulps that were sold for several thousand percent above costs.. Testi­ mony at the trial established that Mishkin gave explicit instructions to the authors that the books be "full of sex scenes and lesbian scenes. . . . The sex had to be very

""Ginzburg v. United States, 383 U.S. 463, 494-95 (1966). """Mishkin v. New York, 383 U.S. 502 (1966). 229 strong, it had to be rough, it had to be clearly spelled out." Mishkin was given a three-year prison sentence and fined $12,000. Justice Brennan, expressing the views of five members of the Supreme Court, stated that the statute was not invalid either upon its face on the ground of vagueness, nor as applied, since the standard of obscenity laid down by the New York state courts, that of "hard-core pornography," was stricter than required by the federal constitutional stan­ dard. Justice Harlan concurred in the Mishkin judgment on the issue of obscenity, reiterating his view that the Four­ teenth Amendment requires of a state only that it apply criteria rationally related to the accepted notion of obscenity. Justices Black and Douglas, in separate dissents, repeated their absolutist view of the First Amendment that allowed all ideas to be expressed, even those which are "offbeat" or repulsive. Justice Stewart dissented on the ground that the books in question were not "hard-core porno­ graphy. "

Hidden in the logjam of obscenity cases docketed in the Supreme Court in 1967 was a little-known case entitled Redrup v. New York,""1 in which the Court reversed, in a per

"^386 U.S. 767 (1967). 230 curiam opinion, New York's determination that two innocuous paperback books entitled Lust Pool and Shame Agent were obscene. Again, as in Ginzburg, the Court examined the way in which the material was used or distributed and established three criteria by which decisions should be made: (1) whether there is evidence of "pandering" of the material; (2) whether the material in question violates a person's right not to view such material if he does not wish to do so; and (3) whether a statute is in existence which reflects the state's interest in the protection of children. The next year, in a trilogy of obscenity cases,""2 Justice Harlan took the opportunity to again repeat his stand that the Supreme Court should differentiate between federal and state obscenity cases. In Harlan's words: I believe that no improvement in this chaotic state of affairs is likely to come until it is recognized that this whole problem is primarily one of state concern, and that the Constitution tolerates much wider authority and discretion in the States to control the dissemination of obscene materials than it does in the Federal Government. Reiterating the viewpoint that I have expressed in earl­ ier opinions, I would limit federal control of obscene materials to those which all would recognize as what has been called 'hard-core pornography,' and would withhold the federal judicial hand from interfering with state determinations except in instances where the state action clearly appears to be but the product of prudish over- zealousness. . . . And in the juvenile field I think that the Constitution is still more tolerant of state policy

""2Ginsberg v. New York, 390 U.S. 629 (1968); Inter­ state Circuit, Inc. v. Dallas and United Artists Corporation v. Dallas, 390 U.S. 676 (1968). 231 and its applications. If current doctrinaire views as to the reach of the First Amendment into state affairs are thought to stand in the way of such a functional approach, I would revert to basic constitutional concepts that until recent times have been recognized and respected as the fundamental genius of our federal system, namely the acceptance of wide state autonomy in local affairs.""3 Justice Harlan's plea for greater state autonomy in obscenity matters did not mean that he favored abdication of the Supreme Court's role in protecting the privacy of one's own home from the reach of a state obscenity statute. Accord­ ingly, in the Warren Court's valedictory decision in the obscenity field, Stanley v. Georgia,""" Harlan joined the opinion of Justice Marshall for six members of the Court in holding that a Georgia statute making mere private possession of obscene matter a crime was unconstitutional under the First and Fourteenth Amendments. At this juncture there were those who thought the Supreme Court was finally on the road to renovating and modernizing the law of obscenity by holding that sexually oriented material is protected speech, subject only to the limited control of "pandering" and of safeguarding minors and those unwilling to receive such material. However, the

""3Ibid., pp. 707-08. """394 U.S. 557 (1969). Two years later, Justice Harlan wrote a concurring opinion in support of the Court's decision that the rule of Stanley did not confer on another person the right to sell and deliver such material. United States v. Reidel, 402 U.S. 351, 357 (1971). 232 composition of the Court dramatically changed when Richard Nixon, elected President in 1968, began making appointments to the Court in 1969. Consequently, when the next battery of obscenity cases was considered by the Court, Warren E. Burger had become Chief Justice in place of the retired Earl Warren and Harry E. Blackmun had taken the seat of the resigned Abe Fortas as Associate Justice. In 1972, Lewis F. Powell, Jr. and William H. Rehnquist joined the Court as replacements for Justices Black and Harlan, respectively. The only post-Harlan obscenity decision to be men­ tioned here is the landmark case of Miller v. California""5 in which the Burger Court, by a five to four decision, embraced one of the most salient federalism notions that had been articulated by Justice Harlan in the several opinions examined in this chapter, namely, that obscenity in state cases is to be determined by a local standard. In Miller, with Chief Justice Burger delivering the majority opinion, the Supreme Court reaffirmed the rule of Roth that obscene material is not protected by the First Amendment. The Court held that a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken

""5413 U.S. 15 (1973). 233 as a whole, does not have serious literary, artistic, polit­ ical, or scientific value.""6 The Court also rejected the test of "utterly without redeeming social value" articulated in earlier cases.""7 Then, accepting one of Justice Harlan's most familiar arguments, the Court majority ruled in Miller that a jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails among average adults in the forum community, and need not employ a national standard.""8 Thus, it was less than two years after Justice Har­ lan's death that there occurred in the Miller case, a coales­ cence of a bare majority of the Supreme Court members in support of his double standard for protecting freedom of expression and accommodating the legitimate interests of the state and national governments in regulating obscenity. It has been seen in this chapter that in the long line of obscenity decisions following Roth the Supreme Court has navigated through murky waters in a search which has thrust it only deeper into a controversial swamp. The leading cases demonstrate the futility and the risks involved in the Court's struggle to provide a rational scheme for justifying, interpreting and applying legislation in the area of morals.

""6Ibid., p. 24. ""7Ibid. . """Ibid., pp. 30-4. 234 As long as the Court attempts to accommodate the interest of public morality with freedom of expression, there will con­ tinue to be uncertainties in the constitutional law of obscenity. Chapter IV

CONCLUSION

This study reveals that the central tenets of the second Justice John Marshall Harlan's constitutional and' judicial philosophy were federalism and judicial self- restraint. He stood for precedent in a time when precedents were being abandoned, and he stood for a limited role for the Supreme Court in the American polity. His incessant plaint was for a "harmonious federal system," and many were the claims that he voted to deny, lest, in granting them, the Court should weaken that system. Evidence in support of these conclusions was gathered from selected opinions of Harlan as an Associate Justice of the U.S. Supreme Court and from his infrequent extra-judicial writings.

The Harlan judicial opinions examined and explicated in this dissertation were drawn principally from the consti­ tutional arenas of political representation, criminal proce­ dure and freedom of expression. It was in these decisional areas that the collision was most frequent and sharply focused between the restraintist Harlan and the activist majority of the Warren Court upon which he served for four­ teen of his sixteen years of Supreme Court service dating from 1955 to 1971. Justice Harlan's consistent commitment 235 236 to the values of federalism and to the instrument of judi­ cial self-restraint for their fulfillment is amply demon­ strated by the analysis of his opinions, usually in dissent, in these areas of constitutional law. The United States is characterized as "the first great experiment in federalism," but, ironically, neither the word "federal" nor "federalism" appear anywhere in the U.S. Constitution. Nevertheless, it is clear that the Constitu­ tion embodies the essence of the federal form of government, in that governmental powers are divided between a national government and the constituent units of state and local government, rather than being lodged in a centralized govern­ ment. Primer textbooks point out that the U.S. Constitution delegates express and implied powers to the national govern­ ment: those expressly enumerated and those implied from the "necessary and proper clause" of Article I, section 8. The states are granted no specific powers in the Constitution, rather the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" under the language of the Tenth Amendment.

Justice Harlan identified the basic constitutional principles of federalism and the separation of powers as those which "lie at the root of our constitutional system."""9

""9John M. Harlan, "The Bill of Rights and the 237 "We are accustomed," Harlan observed, "to speak of the Bill of Rights and the Fourteenth Amendment as the principal guarantees of personal liberty. Yet it would surely be shallow not to recognize that the structure of our political system accounts no less for the free society we have. Indeed, it was upon the structure of government that the founders primarily focused in writing the Constitution.""50 Harlan held the view that the Founding Fathers of the Repub­ lic "staked their faith that liberty would prosper in the new nation not primarily upon the declarations of individual rights but upon the kind of government the Union was to have. And they determined that in a government of divided powers lay the best promise for realizing the free society it was their object to achieve.""51

In the year of the mid-point of his Supreme Court tenure, Justice Harlan said in a dedicatory address at the University of Pennsylvania that "the Bill of Rights, even in the guardianship of the Supreme Court, is not the sole bul­ wark against the diminution or loss of things that are

Constitution," American Bar Association Journal, 50 (October, 1964), 918, 920. ""John M. Harlan, "Thoughts at a Dedication: Keep­ ing the Judicial Function in Balance," American Bar Associa­ tion Journal, 49 (October, 1963), 943-44. "51See, op.cit., n. 449, p. 920. 238 associated with what is called the American way of life.""52 He went on to identify what he called other factors of equal importance, including "the peculiar genius of our federal system under which we have achieved national solidarity and unparalled strength and at the same time kept governmental authority workably diffused between the federal establishment and the states. . . .""" Justice Harlan's opinions stressed "the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American free­ doms.""5" The federal system, he emphasized in a state criminal procedure case, "embodies values profoundly making for lasting liberties in this country. . . ,"1*55 in the Reapportionment Cases, Harlan proclaimed: "The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens.""56 Harlan, in another criminal

"52John M. Harlan, "Dedicatory Address," University of Pennsylvania Law Review, 111 (May, 1963), 920, 922. ""Ibid. "5"Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring). ""Pointer v. Texas, 380 U.S. 400, 409 (1965) (Harlan, J., dissenting). ""Reynolds v. Sims, 377 U.S. 533, 625 (1964) (Harlan, J., dissenting). 239 procedure case, referred to federalism as "a priceless aspect of our Constitutionalism.""57 He saw many of the Warren Court's pronouncements in the apportionment, criminal procedure and obscenity fields as destructive of the "har­ monious federalism" he had supposed was ours. Dissenting in a landmark case expanding federal habeas corpus review of criminal convictions in state courts, Justice Harlan argued that the rule of adequate and indepen­ dent state ground of decision should bar such Supreme Court review. He described the rule as "one of constitutional dimensions going to the heart of the division of judicial powers in a federal system. . . . For this Court to go beyond the adequacy of the state ground and to review and determine the correctness of that ground on its merits would . . . be to assume full control over a State's procedures for the admin­ istration of its own criminal justice. This is and must be beyond our power if the federal system is to exist in sub­ stance as well as form.""58 It is seen that Harlan viewed our federal system as hanging on a fragile and sensitive balance between the different levels and branches of govern­ ment.

""Henry v. Mississippi, 379 U.S. 443, 465 (1965) (Harlan, J., dissenting). "58Fay v. Noia, 372 U.S. 391, 464, 466 (1963) (Harlan, J., dissenting). 240 In theory, the distribution of power in American government can be changed only by formally amending the Constitution. In practice, however, it has never been necessary to formally amend in order for the federal govern­ ment to enter the reserved sphere of the states' sovereignty. As one historian put it: Statesmanship prompted the framers to leave many powers to the jealous states. On the other hand, they wrote the document with such generality —no accident, but a significant result of their universal way of thinking — that these powers could be retrieved by the national government when changes in national life made it imper­ ative that they be exercised on a national level."5 The organic nature of the Constitution, its amorphous generality, the imperative demands of contemporary circum­ stances and an activist Supreme Court majority coalesced during the period of Justice Harlan's service on the Court to bring about wide-ranging doctrinal innovations in the polit­ ical representation, criminal procedure and obscenity areas examined in this study. Harlan viewed these incursions by the Warren Court as threats to the values of federalism and the proper balance of the federal system.

Justice Harlan devoted portions of his several dis­ sents in the reapportionment, criminal procedure and obscenity cases reviewed in this study to identify positive values of federalism he believed were being eroded by the Court's

""William Miller, A New History of the United States, (New York: George Barziller, Inc., 1958), p. 124. 241 decisions. Looming large among these values was his belief that federalism with its diffusion of power in the American polity is a safeguard against tyranny. Other major values of federalism perceived by Harlan were the promotion of polit­ ical participation by dispersal of the centers of decision­ making and the encouragement of experimentation by the various states in the solution of social problems. He viewed the Warren Court's edicts as shutting off the opportunity for the citizenry to enjoy the benefits flowing from the operation of the federal system in the way he believed the drafters of the Constitution intended. For example, he said: The effect of Reynolds was to read a long debated polit­ ical theory [one-man, one-vote] . . . into the United States Constitution, thereby foreclosing the States from experimenting with legislatures rationally formed in other ways. "" Near the end of his service on the Supreme Court, Justice Harlan reiterated his opposition to the Court's long line of reapportionment decisions, and he used the occasion to state his understanding of American democracy as he saw it envisaged in the Constitution. The scheme of the Constitution is one not of majoritarian democracy, but of federal republics, with equality of representation as a value subordinate to many others, as both the body of the Constitution and the Fourteenth Amendment itself show on their face."61

"6"Avery v. Midland County, 390 U.S. 474, 490 (1968) (Harlan, J., dissenting). "61Whitcomb v. Chavis, 403 U.S. 124, 167 (1971) (Harlan, J., dissenting). 242 Criticizing the Warren Court's nationalization of criminal procedure, Justice Harlan invoked Justice Brandeis' familiar statement about experimental federalism. . . . one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."6 2 Harlan also cited the experimental value of federalism to justify applying a more tolerant constitutional standard to state than to federal obscenity laws. It has often been said that one of the great strengths of our federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories. 'State statutory law reflects predominantly this capacity of a legislature to introduce novel techniques of social control'. . . .'1>63 Justice Harlan's brethern on the Supreme Court found his zeal for federalism and judicial self-restraint excessive when it blocked the validation of rights found by the major­ ity of the Court to be guaranteed by the Constitution. For example, in the seminal reapportionment case of Baker v. Carr, Justice Clark asserted that such arguments as Harlan's must give way "where the national rights of so many have been so clearly infringed for so long a time.""6" Later, in Reynolds

"62New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932), quoted in Duncan v. Louisiana, 391 U.S. 145, 193 (1968) (Harlan, J., dissenting). "63Alberts v. California, 354 U.S. 476, 496 (1957) (Harlan, J., dissenting). "6"369 U.S. 186, 262 (1962). 243 v. Sims, the Court stated, "No effective political remedy to obtain relief against the alleged malapportionment of the Alabama legislature appears to have been available.""65 Nonetheless, Harlan termed the reapportionment decisions as "an experiment in venturesome constitutionalism.""66 Justice Goldberg, in his response to Justice Harlan's arguments in the criminal procedure case of Pointer v. Texas, said: "While I quite agree with Mr. Justice Brandeis that . 'it is one of the happy incidents of the federal system that a . . . state may . . . serve as a laboratory; and try novel social and economic experiments,' ... I do not believe that this includes the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights.""67 In the area of criminal procedure, as with race relations, supporters of the Warren Court's decisions point out that an appalling gap had existed between our principles and our practices. For while the constitutional provisions safe­ guarding the accused had proved politically viable as slogans in Fourth of July oratory, their effective implementation had not. In this area the Supreme Court acted to compel society to live up to its professed ideals.

"65377 U.S. 533, 553 (1964). "66Ibid., p. 625 (Harlan, J., dissenting). "67380 U.S. 400, 413 (1965). 244 It has been seen in this study that two conflicting theories, representing differing though great traditions of judicial behavior, may be characterized as "activist" and "restraintist," with Justice Harlan classified as a restraintist. Both traditions have had powerful advocates in the Supreme Court, and it is possible that conflict between them may at times place the institution in danger. Professor Wallace Mendelson has written: "Until we have a better under­ standing of the Supreme Court's real function, that institu­ tion will be in trouble. . . . Eventually, perhaps we will have to choose between them (the two traditions).""68 A Supreme Court activist is seen as a Justice who is philosophically or perhaps emotionally concerned with the out­ come or consequences of any decision of the Court. Because of his involvement or commitment the activist feels a genuine sense of personal responsibility for such consequences. Any legal system, and particularly the American, imposes standards, techniques and methods upon the adjudica­ tion process. These are of small concern to the activist, however, who tends to feel that achievement of the goal he evaluates as "right" is of first importance. He does not, therefore, consider himself bound by the standards of the

""Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court (Chicagol University of Chicago Press, 1961), Chapter IX. 245 legal system and he uses the standards only insofar as they aid in goal-achievement. Judicial activists are, at bottom, reformers. They seek to change or deflect the course of politics. Activism was the style of the Warren Court in its protection of personal rights through acceleration of the trend toward integration, the holding of Bill of Rights guarantees binding on the states and the broadening of the substantive content of the rights themselves. The judicial self-restraintist is, as the term implies, nearly the opposite of his activist brethern. The restraintist is not an advocate or crusader and he does not look upon the Court as an instrument of social and political change or, for that matter, a preserver of the status quo. His restraint springs partly from his respect for the stan­ dards of the legal system, including stare decisis, and partly from his beliefs about the structural nature of the polity itself. All of these restraintist underpinnings were exemplified in the Harlan opinions examined in this study. Before the Warren era, the Supreme Court acted "more like a brake than a motor in the social mechanism," and the usual effects of judicial review were to retard the social, economic and political movements taking place in society. The activism of the Warren Court resulted in the Supreme Court becoming the national conscience in such areas as integration, apportionment, criminal procedure and freedom 246 of expression. Thus, for the first time an activist Court was pursuing liberal policy goals. It had become the motor, not the brake, in the American polity. Historically, the Court, in other periods of activism, was primarily negative and delayed the social and economic changes state and fed­ eral legislation sought to achieve. The classic example of this phenomenon is the activist-conservative dominated Supreme Court of the 19 30s which delayed certain social and economic changes sought by the New Deal.

For Justice Harlan, judicial self-restraint was not a negative concept. It reflected his positive belief in the felicitious, if fortuitous, rightness of the basic political compromise that underlies our Constitutional structure—a structure that recognizes and preserves the values of diver­ sity in our national life. For him these were precious values, for he knew that in its diversity our society has found resilience, initiative and strength. Justice Harlan regarded the Supreme Court as a constitutional balancer of conflicting interests, powers and policies at work in a society already made excessively complex by too much advocacy and bureaucracy. He was not unconcerned with policies and goals, but he believed that such are the aims and grist of politics with its give and take. He tended to view the Supreme Court, a non-elected yet powerful judicial body, as incompetent for a political role. 247 He believed that in the Supreme Court, which is the remotest, the most insulated and least responsive of our institutions of government, a rash of decisive action is something of an ominous symptom. Harlan stressed the ille­ gitimacy of the Court's behaving like a legislature, its incapacity to do so effectively and the debilitating effects on the democratic processes when it so acts. According to Harlan, innovation and execution of policy are matters for the elected representatives of the people, the legislative and executive branches of government. The courts, he argued, are to merely oversee this process in cases properly brought before them, to be sure that the democratic majority does not violate consitutional guarantees.

During his final term on the Supreme Court, Justice Harlan wrote opinions in which he repeated several of the themes of his restraintist philosophy. He expressed again his insistence that jurisdictional prerequisites to review in the Supreme Court be satisfied,"69 that the Court not act unnecessarily,"70 or on matters in which it has no real

""United States v. Vutich, 402 U.S. 62, 81 (1971) (Harlan, J., dissenting as to jurisdiction); Organization for a Better Austin v. Keefe, 402 U.S. 415, 420 (1971) (Harlan, J., dissenting). "70Sanks v. Georgia, 401 U.S. 144 (1971). 248 competence,"71 that it not "open a door that will prove difficult to close.""72 Justice Harlan expressed disdain for the use of the words "liberal" and "conservative" in labeling Supreme Court Justices or blocks of Justices."73 Speaking to law students he urged them to eschew the temptation "of worrying about whether the Supreme Court with a change of membership is likely to become 'liberal' or 'conservative.'""7" Appraisers of Harlan's Supreme Court service, however, have generally used the word conservative in describing him. Professor Norman Dorsen, a former law clerk to Harlan, called him "a constitutional conservative," and "a conservative conscience to a highly active Court.""75 Dorsen contrasted Harlan's con­ servatism with that of Justice George Sutherland, a prominent conservative member of the Supreme Court during the 1920s and 1930s. Unlike Sutherland who "did not hesitate to impose his

"710hio v. Wyandotte Chemical Corp., 401 U.S. 403 (1971). "72Time, Inc. v. Pape,' 401 U.S. 279, 294 (1971) (Harlan, J., dissenting). "73John M. Harlan, "A Glimpse of the Supreme Court at Work," Oklahoma Bar Association Journal, 34 (September 28, 1963), T6~49: "7"See, op.cit., n. 452, p. 922. " "Norman Dorsen, "The Second Mr. Justice Harlan: A Constitutional Conservative," New York University Law Review, 44 (April, 1969), 249, 250. 249 economic views on the nation by invalidating federal and state laws," Harlan was "the epitome of the modest judge- respectful of jurisdictional limitations and extremely cautious about employing constitutional edict to overrule federal and state legislators and officials.""76 Harlan reached decisions in cases, not because of any political pro­ gram, not because he desired particular outcomes, but because of the role he thought the Supreme Court should play in the American polity. That role was limited and one with an abiding concern for the values of federalism and judicial self-restraint. Justice Harlan's restraintism and conservatism were linked together with his transcending concern for federalism in opposition to much of the doctrinal innovations of the Warren Court. As shown in this study, he voted against the Court reapportioning state legislatures and the House of Representatives to coincide with "one-man, one-vote"; against the Court invalidating state poll taxes; against the Court requiring the police to give "Miranda warnings" to criminal suspects; and against the Court requiring convicted indigents to have free transcripts and lawyers for their appeals. In the area of obscenity, we have seen that Harlan would give

"76Ibid., p. 270. 250 the states vast leeway and permit the federal government to be judged by a different standard. History is. likely to accord Judge Harlan a place among the great dissenters of the Supreme Court, from a qualitative as well as a numerical standpoint. Certainly, as Appendix C of this study demonstrates, Harlan's dissents were great in number, totaling 296, throughout his service on the Court."77 His disagreement with the majority of the Warren Court is further magnified if his concurring opinions, in which he concurred in result but took issue with the majority's reasoning, are added to his dissenting opinions. Although history may not record that Justice Harlan's dissenting opinions were prophetic in the way his grandfather's statement that "our Constitution is colorblind" marked the path for the Warren Court,"78 the principled reasoning and display of craftsmanship by the second Justice Harlan have made lasting contributions to the literature of the Court. Harlan's opinions helped perpetuate the institution of dissent in the Supreme Court where nodules of constitutional

"77Justice Harlan's grandfather and namesake who served on the Supreme Court, the first Justice John Marshall Harlan, is often referred to as a "great dissenter." How­ ever, his record of 380 dissents over a 34 year period, 1877 to 1911, doesn't match the frequency of his grandson's dis­ sents which numbered 296 over a period of 16 years. ""Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)! 251 wisdom about the tensions in American life can be asserted even though unpopular with the majority in society and at variance with the Court's prevailing opinions at the time. APPENDIX A Cited Opinions of John Marchall Harlan as Associate Justice of the United States Supreme Court, March 28, 1955 to September 23, 1971.

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 455 (1966) (dissenting opinion). A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 215 (1964) (dissenting opinion). Alberts v. California, 354 U.S. 476, 496 (1957) (concurring opinion). Avery v. Midland County, 390 U.S. 474, 486 (1968) (dissenting opinion). Baker v. Carr, 369 U.S. 186, 330 (1962) (dissenting opinion). Bantam Books v. Sullivan, 372 U.S. 58, 76 (1963) (dissenting opinion). Barenblatt v. United States, 360 U.S. 109 (1959). Benton v. Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion). Boddie v. Connecticut, 401 U.S. 371 (1971). Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting opinion). Cipriano v. City of Houma, 395 U.S. 701, 707 (1969) (concurr­ ing opinion). Cohen v. California, 403 U.S. 15 (1971). Cohen v. Hurley, 366 U.S. 117 (1961). Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (con­ curring opinion). 252 253 Douglas v. California, 372 U.S. 353, 360 (1963) (dissent­ ing opinion). Duncan v. Louisiana, 391 U.S. 145, 171 (1968) (dissenting opinion). Escobedo v. Illinois, 378 U.S. 478, 492 (1964) (dissenting opinion). Fay v. Noia, 372 U.S. 391, 448 (1963) (dissenting opinion). Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (concurring opinion). Garner v. Louisiana, 368 U.S. 157, 185 (1961) (concurring opinion). Gideon v. Wainwright, 372 U.S. 335, 349 (1963) (concurring opinion). Ginsberg v. New York, 390 U.S. 629, 704 (1968) (concurring opinion). Ginzburg v. United States, 383 U.S. 463, 493 (1966) (dis­ senting opinion). Gray v. Sanders, 372 U.S. 368, 382 (1963) (dissenting opin­ ion) . Griffin v. Illinois, 351 U.S. 12, 29 (1956) (dissenting opinion). Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (concurring opinion). Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 59 (1970) (dissenting opinion). Harper v. Virginia Board of Elections, 383 U.S. 663, 680 (1960) (dissenting opinion). Henry v. Mississippi, 379 U.S. 443, 457 (1964) (dissenting opinion). Hoag v. New Jersey, 356 U.S. 464 (1958). In re Anastaplo, 366 U.S. 82 (1961). In re Gault, 387 U.S. 1, 65 (1967) (concurring opinion). 254 In re Winship, 397 U.S. 358, 368 (1970) (concurring opin­ ion) . Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (dissenting opinion). Jacobellis v. Ohio, 378 U.S. 184, 203 (1964) (dissenting opinion). Ker v. California, 374 U.S. 23, 44 (1963) (concurring opin­ ion) . Kirkpatrick v. Preisler, 394 U.S. 526, 549 (1969) (dissenting opinion). Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (con­ curring opinion). Konigsberg v. California, 366 U.S. 36 (1961). Lerner v. Casey, 357 U.S. 468 (1958). McKeiver v. Pennsylvania, 403 U.S. 528, 557 (1971) (con­ curring opinion). Malloy v. Hogan, 378 U.S. 1, 14 (1964) (dissenting opinion). Manual Enterprises v. Day, 370 U.S. 478 (1962). Mapp v. Ohio, 367 U.S. 643, 672 (1961) (dissenting opinion). Miranda v. Arizona, 384 U.S. 436, 504 (1966) (dissenting opinion). Mishkin v. New York, 383 U.S. 502, 515 (1966) (concurring opinion). NAACP v. Alabama, 357 U.S. 449 (1958). New York Times Co. v. United States, 403 U.S. 713, 752 (1971) (dissenting opinion). Ohio v. Wyandotte Chemical Corp., 401 U.S. 493 (1971). Organization for a Better Austin v. Keefe, 402 U.S. 415, 420 (1971) (dissenting opinion). Poe v. Ullman, 367 U.S. 497, 522 (1961) (dissenting opinion). Pointer v. Texas, 380 U.S. 400, 408 (1965) (concurring opin­ ion) . 255 Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting opinion). Robinson v. California, 370 U.S. 660, 678 (1962) (concurring opinion). Roth v. United States, 354 U.S. 476, 496 (1957) (dissenting opinion). Sanks v. Georgia, 401 U.S. 144 (1971). Scales v. United States, 367 U.S. 203 (1961). Shelton v. Tucker, 364 U.S. 479, 496 (1960) (dissenting opinion). Spevack v. Klein, 385 U.S. 511, 520 (1967) (dissenting opin­ ion) . Swann v. Adams, 385 U.S. 440, 446 (1967) (dissenting opinion) Talley v. California, 362 U.S. 60, 66 (1960) (concurring opinion). Tate v. Short, 401 U.S. 395, 401 (1971) (concurring opinion). Time, Inc. v. Pape, 401 U.S. 279, 294 (1971) (dissenting opinion). United Artists Corporation v. Dallas, 390 U.S. 676, 704 (1968) (dissenting opinion). United States v. Reidel, 402 U.S. 351, 357 (1971) (concurring opinion). United States v. Vutich, 402 U.S. 62, 81 (1971) (dissenting in part). Wesberry v. Sanders, 376 U.S. 1, 20 (1964) (dissenting opin­ ion) . Whitcomb v. Chavis, 403 U.S. 124, 165 (1971) (dissenting opinion). Williams v. Florida, 399 U.S. 78, 117 (1970) (concurring opinion). Williams v. Illinois, 399 U.S. 235, 259 (1970) (concurring opinion). Yates v. United States, 354 U.S. 298 (1957). APPENDIX B Opinions of John Marshall Harlan as Judge of the United States Court of Appeals for the Second Circuit, March 4, 1954 to March 28, 1955

Air Line Pilots Association v. Civil Aeronautics Board, 215 F.2d 122 (2d Cir. 1954). Austrian v. Williams, 216 F.2d 278 (2d Cir. 1954). Bournias v. Atlantic Maritime Co., 220 F.2d 152 (2d Cir. 1955). Commissioner v. Estate of Watson, 216 F.2d 941 (2d Cir. 1954). Commissioner v. Hirshon Trust, 213 F.2d 523 (2d Cir. 1954). Constance v. Harvey, 215 F.2d 571 (2d Cir. 1954). Cummings-Landau Laundry Machinery Co., Inc. v. Alderman, 212 F.2d 342 (2d Cir. 1954). Dixon v. United States, 219 F.2d 10 (2d Cir. 1955). Estate of Lupia v. Marcelle, 214 F.2d 942 (2d Cir. 1954). Hyam v. American Export Lines, 213 F.2d 221 (2d Cir. 1954). Lewyt Corp. v. Commissioner, 215 F.2d 518 (2d Cir. 1954). Murarka v. Bachrack Bros., Inc., 215 F.2d 547 (2d Cir. 1954). Newton v. Pedrick, 212 F.2d 357 (2d Cir. 1954). Niles-Bement-Pond Co. v. Fitzpatrick, 213 F.2d 305 (2d Cir. 1954). O'Donnell Transportation Co. v. City of New York, 215 F.2d 92 (2d Cir. 1954). 256 257 Panella v. United States, 216 F.2d 622 (2d Cir. 1954). Perkins v. United Transportation Company, 219 F.2d 422, (2d Cir. 1955). Perma--Fit Shoulder Pad Co. v. Best Made Shoulder Pad Corp., 218 F.2d 747 (2d Cir. 1955). Siegelman v. Cunard White Star Limited, 221 F.2d 189 (2d Cir. 1955). United States v. Chiarella, 214 F.2d 838, 842 (2d Cir. 1954) (dissenting opinion). United States v. Flynn, 216 F.2d 354 (2d Cir. 1954). United States v. H. Wool $ Sons, Inc., 215 F.2d 95 (2d Cir. 1954). United States v. Wiesner, 216 F.2d 739 (2d Cir. 1954). United States ex rel. Accardi v. Shaughnessy, 219 F.2d 77, 90 (2d Cir. 1955) (dissenting opinion). United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316 (2d Cir. 1954). APPENDIX C Table 1 OPINIONS OF ASSOCIATE JUSTICE JOHN MARSHALL HARLAN, UNITED STATES SUPREME COURT, MARCH 28, 1955 TO SEPTEMBER 23, 1971

Term of Opinions Concurring Dissenting Total Court of Court Opinions Opinions

1954 2 1 2 5 1955 9 2 8 19 1956 11 4 17 32 1957 15 4 17 36 1958 12 7 9 28 1959 10 3 25 38 1960 11 8 13 32 1961 10 7 15 32 1962 12 8 27 47 1963' 10 4 24 38 1964 10 11 16 37 1965 8 11 23 42 1966 9 .5 24 38 1967 13 20 27 60 1968 10 20 24 54 1969 8 15 7 30 1970 8 19 18 45 Total 168 149 296 613 Source: Harvard Law Review, Volumes 69 to 85, inclusive. 258 BIBLIOGRAPHY

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Public Documents

Report of the President's Commission on Obscenity and Porn- ographyT Washington, D.C. : Government Printing Office, 1970. U.S. Congress. Senate. Committee on the Judiciary. Nomina­ tion of John Marshall Harlan. Hearings before the Com- mittee on the Judiciary, United States Senate, 84th Cong., 1st sess., 1955. Washington, D.C: Government Printing Office, 1955. 277 United States Reports. Vols. 349-403 (1955-1971). Vol. 409, pp. V-XXX (19 74). Washington, D.C: Government Print­ ing Office.

Newspapers

New York Times. Nov. 13, 1954, 33:3. . Nov. 14, 1954, IV, 2:6. . Feb. 3, 1955, 12:5. . Feb. 3, 1955, 14:6. . Editorial, Feb. 3, 1955, 22:2.- . Feb. 3, 1955, 22:6. . March 10, 1955, 1:6. . Editorial, March 10, 1955, 26:2. . Editorial, March 18, 1955, 26:2. . March 29, 1955, 1:2. . March 27, 1962, 1, 18, 19, 20, 21. . June 16, 1964, 38:1,4. . June 27, 1969, 17:6. . June 27, 1969, 1:5, 17:4,5. . Sept. 24, 1971, 1:8. . Editorial, Sept. 24, 1971, 40:1. . Editorial, Sept. 26, 1971, IV, 14:1. . Dec. 30, 1971, 1:2. Washington Post. Dec. 30, 1971, 1, B-6:l. 278 Miscellaneous

Federal Reporter (Second Series). Vols. 215-221 (1954-1955). St. Paul, Minn.: West Publishing Co. Supreme Court. Reporter. Vol. 75-91 (1955-1971). St. Paul, Minn.: West Publishing Co. . Vol. 93, No. 4 (December 15, 1972), pp. XLI-LX. "Supreme Court of the United States, Tribute to Honorable John Marshall Harlan, Associate Justice of the United States, October 24, 1972." St. Paul, Minn.: West Pub­ lishing Co. United States Supreme Court Reports, Lawyers' Edition. Vols. 99-100 (1955-1956) and Lawyers' Edition, Second Series, Vols. 1-29 (1956-1971J! Rochester, N.Y.: The Lawyers Co-operative Publishing Co.