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ROLE OF THE SUPREME COURT: POLICYMAKER OR ADJUDICATOR?

Second in the fourth series of Rational Debate Seminars sponsored by the American Enterprise Institute held at The Madison Hotel Washington, D.C.

ROLE OF THE SUPREME COURT: POLICYMAKER OR ADJUDICATOR?

Sam J. Ervin, Jr. Ramsey Clark

RATIONAL DEBATE SEMINARS

American Enterprise Institute for Public Policy Research Washington, D.C. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801.

© Copyright 1970 by the American Enterprise Institute for Public Policy Research 1200 17th Street, N.W., Washington, D.C. 20036 All rights reserved under International and Pan-American Copyright Conventions

Library of Congress Catalog Card Number 78-144001 FOREWORD

Well over a century ago, Alexis de Tocqueville observed that uScarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." And so it is today. During the Warren era the decisions of the Supreme Court governing race relations, the administration of criminal jus­ tice, and the operation of the political process have had pro­ found social consequences. They have also provoked intense controversy. This volume records the viewpoints of two distinguished and articulate authorities in a debate on the Role of the Supreme Court: Policymaker or Adjudicator? Senator Sam Ervin, the highly-respected uconstitutional lawyer of the Senate," and Ramsey Clark, the youthful former attorney general of the United States, were ideal debaters. They are learned, eloquent, charming-and they disagree on the proper role of the Supreme Court and on almost everyone of the landmark decisions of the Warren era.

The London Economist has observed: At the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy. The blood stirs power- fully in their veins and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start.

The Ervin-Clark debate and the discussion that followed tend to confirm this view.

December 1970 William J. Baroody President American Enterprise Institute for Public Policy Research CONTENTS

I FIRST LECTURE-Sam J. Ervin, Jr. 1

II SECOND LECTURE-Ramsey Clark 19

III REBUTTALS Sam J. Ervin, Jr. 3S Ramsey Clark SS

IV DISCUSSION 6S

FOOTNOTES 8')

FIRST LECTURE

SAM J. ERVIN, JR.

In discussing the question whether the role of the Supreme Court is that of policymaker or that of adjudicator, I will use the term ((Founding Fathers" to designate the men who drafted and ratified the Constitution. The Constitution answers this question with unmistakable clarity. There is not a syllable in it which gives the Supreme Court any discretionary power to fashion policies based on such considerations as expediency or prudence to guide the course of action of the government of our country. On the contrary, the Constitution provides in plain and positive terms that the role of the Supreme Court is that of an adju­ dicator, which determines judicially legal controversies be­ tween adverse litigants. In assigning this role to the Supreme Court, the Found­ ing Fathers were faithful to the dream which inspired them to draft and. ratify the Constitution, and to their action in rejecting in the Constitutional Convention repeated propos­ als that the Supreme Court should act as a council of revi­ sion as well as a court and, in its capacity as a council of revision, possess discretionary power to veto all acts of Congress the justices deemed unwise, no matter how much those acts harmonized with the Constitution.! These things do not gainsay that some Supreme Court 2 ROLE OF SUPREME COURT justices have been unhappy with the role assigned them by the Constitution and have undertaken to usurp and exercise policymaking power. But their usurpations have not altered the rightful role of the Supreme Court. Murder and larceny have been committed in every generation, but that fact has not made murder meritorious or larceny legal.

THE DREAM OF THE FOUNDING FATHERS The Founding Fathers had absorbed the lessons taught by the history of the struggle of the people against arbitrary power for the right to be free from tyranny. Hence they comprehended some eternal truths respecting men and gov­ ernment. They knew that those who are entrusted with powers of government are susceptible to the disease of tyrants, which George Washington rightly diagnosed in his Farewell Ad­ dress as uthe love of power and proneness to abuse it." For this reason, they realized that the powers of public officers should be defined by laws which they as well as the people are obligated to obey. They also knew the truth subsequently embodied by Dan- iel Webster in this aphorism: Whatever government is not a government of laws is a despotism, let it be called what it may. For this reason they realized that liberty cannot exist ex­ cept under a government of laws, i.e., a government in which the conduct of the people is controlled by certain, constant, and uniform laws rather than by the arbitrary, un­ certain, and inconstant wills of the men who occupy public FIRST LECTURE 3 offices, and in which the laws accord to the people as much freedom as the commonweal permits. They likewise knew that Thomas Hobbes had proclaimed an unalterable principle when he said: Freedom is political power divided into small frag­ ments. They knew, moreover, the political truth afterwards phrased by Woodrow Wilson in these words: Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of the limitation of governmental power, not the increase of it. When we resist therefore the concentration of power, we are resisting the proc­ esses of death, because concentration of power is what always precedes the destruction of human liberties. For these reasons, they realized that the powers of gov­ ernment should be diffused among different repositories, that cclocal processes of law are an essential part of any gov­ ernment conducted by the people," and that ccno national government ... can be as closely in touch with those who are governed as can the local authorities in the several states and their subdivisions." 2 The Founding Fathers also understood that a nation which disregards the lessons of history is doomed to repeat the mistakes of the past. They desired to spare the nation they were creating this tragic experience. These things inspired the Founding Fathers to dream earth's most magnificent dream. 4 ROLE OF SUPREME COURT They dreamed they could enshrine a government of laws conforming to the eternal truths taught by history in a writ­ ten constitution, and make that government operate in ac­ cordance with their intent by entrusting the interpretation of that constitution to a supreme court composed of fallible men. To this end, they framed the Constitution, which they in­ tended to last for the ages and to constitute ua law for ru­ lers and people" alike at all times and under all circumstances. 3

THE CONSTITUTION Let me indicate what the Founding Fathers did in the Constitution to give our nation a government of laws and to preserve for themselves and their posterity the blessings of liberty. To make our nation ccan indestructible union composed of

indestructible states," 4 they delegated enumerated govern­ mental powers to the federal government, and reserved all other governmental powers to the states. To further frag­ mentize political power, they allocated federal legislative power to the Congress, federal executive power to the Presi­ dent, and federal judicial power to the Supreme Court and usuch inferior courts as the Congress may from time to time ordain and establish." 5 To further forestall tyranny, they forbade federal and state governments to do specified things inimical to free­ dom, and conferred upon individuals enumerated liberties enforceable against government itself. And, finally, to make FIRST LECTURE 5 government by law secure, they made the Constitution and laws enacted by Congress pursuant to it the supreme law of the land, and imposed upon all public officials, both federal and state, as well as upon the people the duty to obey them. 6 While they intended the Constitution to endure through­ out the ages as the nation's basic instrument of government, the Founding Fathers realized that useful alterations of the Constitution would be suggested by experience. Consequently they made provision for its amendment in one way, and one way only, i.e., by concurrent action of Congress and the states as set forth in Article V. 7 By so doing, they ordained that unothing new can be put into the Constitution except through the amendatory process" and ((nothing old can be taken out without the same process." 8

THE ROLE OF THE SUPREME COURT A policy is a definite or settled course of action adopted and followed by government. The power to make policy is discretionary in nature. It involves the making of choices on the basis of expediency or prudence among alternative ways of acting. The power to make policy in a government of laws re­ sides with those who are authorized to participate in the lawmaking process. The Founding Fathers made policy when they ordained and established the Constitution, which determines the fun­ damental policies of our country. Since Article I of the Constitution grants Congress the 6 ROLE OF SUPREME COURT power to make laws and requires every bill passed by it to be presented to the President for his approval or disapproval before it takes effect, the Congress and the President have policymaking power. Moreover, Article V confers upon the Congress and the states, acting in conjunction, limited policy­ making power, i.e., the power to amend the Constitution. Article III denies the Supreme Court policymaking power in plain and positive terms. It does this by making the Su­ preme Court a court of law and equity and by granting to it ((judicial po\\rer" only. tJnder this Article, the Supreme Court has no power whatever except the po\\rer to hear and determine cases between adverse litigants, \\rhich are within the scope of its original or appellate jurisdiction. Article III denies the Supreme Court policymaking po\\rer in another way. When it is read in conjunction with the su­ premacy clause of Article VI, Article III obligates Supreme Court justices to base their decisions in the cases they hear upon the Constitution, the laws, and the treaties of the United States, and thus forbids them to take their personal notions as to what is desirable into account in making their rulings. For this reason, Supreme Court justices are endowed \vith power to interpret any provision of the Constitution or any law or treaty which is determinative of the issue arising in a case coming before them.

THE POWER TO INTERPRET THE CONSTITUTION The power to interpret the Constitution is an awesome power. This is so because, in truth, constitutional govern- FIRST LECTURE 7 ment cannot exist in our land unless this power is exercised aright. Chief Justice Stone had this thought in mind when he stated this truth concerning Supreme Court justices: While unconstitutional exercise of power by the execu­ tive and legislative branches of the government is sub­ ject to judicial restraint, the only check upon our exer­ cise of power is our own sense of self-restraint.9 The power to interpret the Constitution, which is allotted to the Supreme Court, and the power to amend the Constitution, which is assigned to Congress and the states acting in conjunction, are quite different. The power to in­ terpret the Constitution is the power to ascertain its mean­ ing, and the power to amend the Constitution is the power to change its meaning. Justice Cardozo put the distinction between the two pow­ ers tersely when he said: We are not at liberty to reVise while professing to construe. 10 Justice Sutherland elaborated upon the distinction in this way: The judicial function is that of interpretation: it does not include the power of amendment under the guise of interpretation. To miss the point of difference be­ tween the two is to miss all that the phrase «supreme law of the land" stands for and to convert what was in­ tended as inescapable and enduring mandates into mere moral reflections. 11 8 ROLE OF SUPREME COURT America's greatest jurist of all times, Chief Justice John Marshall, established these landmarks of constitutional in­ terpretation:

1. That the principles of the Constitution (C are designed to be permanent." 12 2. That ~~the enlightened patriots who framed our Consti­ tution, and the people who adopted it, must be understood ... to have intended what they have said." 13 3. That the Constitution constitutes a rule for the govern­ ment of Supreme Court justices in their official action. 14 Since it is a court of law and equity, the Supreme Court acts as the interpreter of the Constitution only in a litigated case whose decision of necessity turns on some provision of that instrument. As a consequence, the function of the Court is simply to ascertain and give effect to the intent of those who framed and ratified the provision in issue. If the provi­ sion is plain, the Court must gather the intent solely from its language, but if the provision is ambiguous, the Court must place itself as nearly as possible in the condition of those who framed and ratified it, and in that way determine the intent the language was used to express. For these rea­ sons, the Supreme Court is duty bound to interpret the Con­ stitution according to its language and history.15 When they dreamed their magnificent dream, the Found­ ing Fathers realized that some dreams come true and others vanish. They knew that whether their dream would share the one fate or the other would depend on whether Supreme Court justices would be able and willing to lay aside their FIRST LECTURE 9 own notions as to what is desirable and interpret the Consti­ tution according to its real intent. They did three things to make their dream come true. They decreed that Supreme Court justices should be care­ fully chosen. To this end, they provided that no man should be elevated to the Supreme Court until his qualifications for the office had been twice scrutinized and approved, once by the President and again by the Senate. They undertook to free Supreme Court justices from the personal, political, and economic ambitions, fears, and pres­ sures which harass the occupants 'of other public offices by stipulating that they should hold office for life and receive for their services a compensation which could not be re­ duced during their continuance in office. They undertook to impose upon each Supreme Court jus­ tice a personal obligation to interpret the Constitution ac­ cording to its real intent by requiring him to take an oath or make an affirmation to support the Constitution. Their overall aim was to make Supreme Court justices independent of everything except the Constitution and re­ quire them to accept that instrument as the sole rule for the government of their official action.

THE WARREN COURT During most of our history, Supreme Court justices were faithful to the dream of the Founding Fathers. They ac­ cepted the Constitution as the rule for their official action, and decided constitutional issues in accordance with its precepts. 10 ROLE OF SUPREME COURT Unfortunately, ho\vever, this has not been true during re­ cent years. Shortly before 1953, Supreme Court justices be­ gan to substitute their personal notions for constitutional provisions under the guise of interpreting them, and pro­ voked one of their colleagues, Justice Robert H. Jackson, into making this righteous outcry: Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of the Justices. Whatever has been intended, this Court also has generated an im­ pression in much of the judiciary that regard for pre­ cedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles. 16 With the advent of the Warren Court, this practice in­ creased in frequency and intensity; and the Supreme Court decisions irreconcilable with the Constitution became in Mil­ ton's colorful phrase as «thick as autumnal leaves that strow the brooks in Vallombrosa." I use the terms ((Warren Court" and ((justices of the Warren Court" to designate Chief Justice Warren and Jus­ tices Douglas, Brennan, Goldberg, Fortas, and Marshall who repeatedly undertook to revise the Constitution while professing to interpret it. Candor compels the confession that despite his eloquent protests against their misuse of the due process clauses of the Fifth and Fourteenth Amend­ ments, Justice Black often aligned himself with the justices FIRST LECTURE 11 of the Warren Court; and that although the other justices who served at various times during the incumbency of Chief Justice Warren, namely, Justices Reed, Frankfurter, Jackson, Burton, Clark, Minton, Harlan, Stewart, and White, were rather steadfast in their adherence to the Constitution, some of them joined the Warren Court on some occasions in handing down revolutionary decisions inconsistent with the words and history of that instrument.17 The tragic truth is that under the guise of interpreting them, the Warren Court repeatedly assigned to constitu­ tional provisions meanings incompatible with their language and history. By so doing, it has impeded the President and his subor­ dinates in the performance of their constitutional duty to execute the laws. At times it has undertaken to abridge the constitutional powers of Congress as the nation's lawmaker, and at other times it has undertaken to stretch the legislative powers of Congress far beyond their constitutional limits. And some~ times it has thwarted the will of Congress by imputing to congressional acts constructions which cannot be harmonized with their words. What the Warren Court has done to the powers allotted or reserved to the states by the Constitution beggars descrip­ tion. It has invoked the due process and equal protection clauses of the Fourteenth Amendment as carte blanche to in­ validate all state action which Supreme Court justices think undesirable. This is tragic, indeed, because nothing is truer than this 12 ROLE OF SUPREME COURT observation attributed to Justice Brandeis by Judge Learned Hand: The States are the only breakwater against the ever pounding surf which threatens to submerge the individ­ ual and destroy the only kind of society in which per­ sonality can survive. Besides, the Warren Court twisted some constitutional provisions awry to deny individuals basic personal and prop­ erty rights. All of the decisions of which I complain have tended to concentrate power in the federal government in general and the Supreme Court in particular. The time presently allotted to me does not permit me to analyze or even enumerate these decisions. These things mean little or nothing to those who would as soon have our country ruled by the arbitrary, uncertain, and inconstant wills of judges as by the certain and constant precepts of the Constitution. But they mean everything to those of us who love the Constitution and believe it evil to twist its precepts out of shape even to accomplish ends which may be desirable. If desirable ends are not attainable under the Constitution as written, they should be attained in a forthright manner by an amendment under Article V, and not by judicial al­ chemy which transmutes words into things they do not say. Otherwise, the Constitution is a meaningless scrap of paper. Nobody questions the good intentions of the justices of the Warren Court. They undoubtedly were motivated by a determination to improve and update the Constitution by FIRST LECTURE 13 substituting their personal notions for its principles. But candor compels the confession that their usurpations call to mind these trenchant observations of Daniel Webster: Good intentions will always be pleaded for every as­ sumption of power. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to gov­ ern. They promise to be good masters, but they mean to be masters. Those who champion or seek to justify the activism of the Warren Court assert with glibness that the Constitution is a living document which the Court must interpret with flexibility. When they say the Constitution is a living document, they really mean that the Constitution is dead, and that activist justices as its executors may dispose of its remains as they please. I submit that if the Constitution is, indeed, a living document, its words are binding on those who pledge them­ selves by oath or affirmation to support it. What of the clich'e that the Supreme Court should inter­ pret the Constitution with flexibility? If those who employ this cliche mean by it that a provision of the Constitution should be interpreted with liberality to accomplish its in­ tended purpose, they would find me in hearty agreement with them. But they do not employ the clich'e to mean this. On the contrary, they use the clich,e to m~an that the Su­ preme Court should bend the words of a constitutional provi­ sion to one side or the other to accomplish an objective the 14 ROLE OF SUPREME COURT prOViSion does not sanction. Hence, they use the cliche to thwart what the Founding Fathers had in mind when they fashioned the Constitution. The genius of the Constitution is this: the grants of power it makes and the limitations it imposes are inflexible, but the powers it grants extend into the future and are exercisa­ ble with liberality on all occasions by the departments in which they are vested.

SAVING THE CONSTITUTION As the result of the assumptions of power of the Warren Court, the people of our nation are now ruled in substantial areas of their lives by the partial wills of Supreme Court justices rather than by the impartial precepts of the Consti­ tution. George Washington, who presided over the Convention which framed the Constitution, harbored the dream of the Founding Fathers in his heart. He was wise enough to know that usurpation is the customary weapon by which free gov­ ernments are destroyed, and for that reason admonished America that the meaning of the Constitution should not be distorted by usurpation. It is obvious to those who love the Constitution and are willing to face naked reality that the Warren Court took giant strides down the road of usurpation, and that if the course set by it is not reversed, the dream of the Found­ ing Fathers will vanish and the most precious liberty of the people-the right to constitutional government-will perish. Despite their perilous state, the dream of the Founding FIRST LECTURE 15 Fathers can be rekindled and the precious right of the peo­ ple to constitutional government can be preserved if those who possess the power will stretch forth saving hands while there is yet time. Who are they that possess this saving power? They are Supreme Court justices, who are able and will­ ing to exercise self-restraint and make the Constitution the rule for the government of their official action; Presidents, who will nominate for membership on the Supreme Court persons who are able and willing to exercise self-restraint and make the Constitution the role for the government of their official action; and senators, who will reject for Su­ preme Court membership nominees who are either unable or unwilling to exercise self-restraint and make the Constitu­ tion the rule for the government of their official action. And, finally, if Supreme Court justices, Presidents, and senators fail them, the people may employ their own saving power. Through Congress and the states, they may adopt a constitutional amendment similar to my proposal which would compel Presidents and senators to make appoint­ ments to the Supreme Court from among persons recom­ mended to them by the chief justices of the states. The people can rely upon the chief justices of the states to re­ strict their recommendations to persons who revere the fed­ eral system ordained by the Constitution and who will not sanction the concentration of power which always precedes the destruction of human liberties. Let me add that lawyers who love the Constitution can 16 ROLE OF SUPREME COURT aid the cause by practicing this preachment of Chief Justice Stone: Where the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpations, is careful scrutiny of their action, and fearless comment upon it. In closing I make a conditional prophesy. If those who possess the· power to rekindle the dream of the Founding Fathers and to preserve the right of the people to constitu­ tional government do not act, Americans will learn with ag­ onizing sorrow the tragic truth taught by Justice Sutherland: The saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time. SECOND LECTURE

RAMSEY CLARK

We demean the Constitution of the United States by this endless metaphysical debate over ((strict construction." There are real constitutional issues to be faced, perhaps even con­ stitutional crises. They will require all the vision and cour­ age we can muster. The false notion that men who wrote those words 183 years ago-distant age-eould foresee the unforeseeable, or that we can look back and in words alone, or from their intent in the context of 1787, divine the au­ thors' precise meaning as applied to current facts is contrary to all human experience. Our problems, actual and immense, cannot be solved by such conjury. We are fortunate that na­ ture spares us from the foresight that would be required to give truth to the doctrine of strict construction, because the only thing worse than such an impossibility would be its possibility. Change is the dominant fact of our times. Population and technology, the major dynamics, create more change in a decade than centuries witnessed heretofore. Life changes, the meanings of words change, the needs of man change. The Constitution, born in a fundamentally different epoch, must have the durability and wisdom to grow, to encompass essentially new situations, to meet new needs. It can. 20 ROLE OF SUPREME COURT

To invoke the Founding Fathers against change is to charge them with seeking to deny subsequent generations that to which they were wholly committed for their own. To vest the Supreme Law of the Land with some religious at­ tachment to the status quo is to deny its very meaning and disable the Ship of State in the turbulent seas of change. The purpose behind the doctrine of strict construction as uti­ lized today is not to find specific guidance where none can exist. It is to resist change: to stay where we are, do as we have done and offer no hope. We can no longer afford this. The results of efforts to invoke the doctrine of strict con­ struction dot our legal history. Their consequences have of­ ten been disastrous. A high water mark came in Scott v. Sandford, the ccDred Scott" decision, in 1857. There, the Supreme Court held that it lacked jurisdiction to determine whether Congress had power to ban slavery in the territories north of Missouri, or whether a slave voluntarily taken into a free state by his master thereby became free, because on a narrow and techni­ cal reading of some of the words of the Constitution, it con­ cluded that no slave could be a ««citizen" for purposes of federal jurisdiction. The language of the Constitution as readily read otherwise. Having disclaimed jurisdiction, the Court then proceeded, because strict constructionists are hu­ man and have their purposes, to answer these nation-shatter­ ing questions in the negative, ruling out not only a judicial, but a legislative solution to the slavery issue and thereby failing to do what it could to prevent the most calamitous SECOND LECTURE 21 war in our history. The majority sought to justify these tragic rulings, by pleading obedience to strict construction, saying: No one, we presume supposes that any change in pub­ lic opinion or feeling, in relation to this unfortunate race ... shall induce the court to give to the words of the Constitution a more liberal construction in their fa­ vor than they were intended to bear when the instru­ ment was framed and adopted. In 1918, a bare majority of the Supreme Court again showed what strict construction can mean. Reading the Commerce Clause alone, it said the federal government is powerless to prevent interstate shipment of the products of child labor. Hammer v. Dagenhart, 247 U.S. 251 (1918). The Constitution by that construction-unsupported inciden­ tally in the language of the charter-did not empower the Congress to prevent virtual slave labor of ten- and 12-year­ old children working in sweatshops 70 hours or more a week for- subsistence wages. These men were not deciding issues on the basis of some clear understanding of intentions from 1787. The men in the Hall at Philadelphia could not foresee such questions, much less their answers. They were cruelly used by justices who would decide by fiat what words meant to them, then grace themselves in the mantle of the Founding Fathers. The experience and sympathies of the Court's majority were closer to the cotton mill owners who destroyed children than to justice and humane con­ cerns, and they resisted change. If the majority opinion in Hammer v. Dagenhart prevailed today, the union would be 22 ROLE OF SUPREME COURT a shambles. Can the commerce of 1787 be equated with the commerce of 1970? Strict construction is hardly consistent. Its roots are too shallow to guide its direction. The doctrine is most often grasped by those who find convenient words and prefer to stand on them rather than the constitutional force of their position. In the late 1920s and 1930s the nation faced a con­ stitutional crisis that approached disaster. In a series of cases the Court said in effect-and with no support in the words of the Constitution-that government cannot address it­ self to new economic problems that overwhelm it. Ignoring the vast changes caused by industrialization and urbaniza­ tion and the emergency of the depression, it sought to bind us to the past by reading too much into words that had no application. Seizing the power to derive substantive stand­ ards from the «due process" clause, the Court nearly ren­ dered the nation powerless to provide for its economic re­ covery. The strict constructionists in that controversy were the dissenters who found nothing in the words of the ««due process" clause to support the majority's holding. That his­ tory proved the strict construction doctrine to be on the side of the angels in that episode does not give viability to its theory, or integrity to its application. The words of the Con­ stitution matter greatly, but they do not suffice to solve the problems of another day. They are the place of beginning, not of ending. To begin and end, poring over words to find meanings they do not contain denies us the benefits of experience, the strength of growth and the wisdom of the spirit of the Constitution. SECOND LECTURE 23 Strict construction is at best a convenient argument with which to support or attack particular judicial decisions. How many of us are really prepared to have our Constitution con­ strued solely by its words and their intention when written? There is, after all, not a word in the Constitution about many of our most important protections. The hallowed pre­ sumption of innocence, and the requirement that guilt in criminal cases be proven beyond a reasonable doubt are not found in the words of the Constitution. Nor does the Con­ stitution say that state governments may not trample upon freedom of speech or press or religion, that state legislatures must be fairly .apportioned, or that any of us have any ((right to privacy." Even the most distinguished advocates of strict construc­ tion do not interpret the Constitution from its words when they address principles where words fail. Thus the Supreme Court's most prominent advocate of strict construction has fought tirelessly to preserve our First Amendment freedoms against interference by state governments and to require fair apportionment of state legislatures. The Constitution does not say this. And our foremost senatorial spokesman for strict construction champions the cause of the ((right of pri­ vacy," believing that the Constitution itself prevents intru­ sion into the private lives of government employees by gov­ ernment snoopers armed with wiretaps, bugs, or computers. On these crucial issues, even the strict constructionists must look to the spirit of the Constitution and to the require­ ments of a free society. 24 ROLE OF SUPREME COURT It is hardly surprising that the words of the Constitution, even supplemented by their historical context, do not resolve the great questions of our time. In 1791, when the ink on the Constitution was hardly dry, President Washington, who had chaired the Convention, Thomas Jefferson, and Alexan­ der Hamilton were unable to agree among themselves on whether the tCnecessary and proper clause" authorized the federal government to charter a national bank. Eventually the matter was resolved not on the basis of some nonexis­ tent ((plain meaning" of the constitutional language, but on the best judgment the statesmen of the day could make as to what was an appropriate rule for a constitutional fed­ eral government considering the general powers delegated to it. The crises which we face today, the great constitutional questions which are put to the Supreme Court for resolu­ tion, are far more difficult. Mass society, urban poverty, rac­ ism, vast industry, huge labor unions, tall skyscrapers, automobiles, jet aircraft, television, nuclear energy, environ­ mental pollution, mass assemblies and protests, the interde­ pendence of nations and invididuals create issues undreamed of in the philosophies of the Founding Fathers. The Constitution guides by general principle-a light that recognizes the existence of change. By its very nature it must embody a whole theory in a quick phrase-to regulate commerce-the general welfare-due process of law-the equal protection of the laws. Hundreds, thousands of cases are required to give the phrase a growing content, but the Constitution sets the tone. If it were to be specific, it could not be a Constitution nor hope to maintain a theory and SECOND LECTURE 25 framework of government with general powers and limita­ tions. The nature of the Constitution and the decisional process by which its principles are extended to new conditions have been recognized from the beginning. Perhaps the most famous and profound expression was by Chief Justice John Marshall in McCulloch v. Maryland, 4

Wheat. 316 (1819): C c. •• we must never forget that it is a Constitution we are expounding. ... [a] Constitution in­ tended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." Words of immutable meaning cannot be adapted to crises, and nations bound to them fail. But in truth there are no immutable words. To say there are is only to place the power to divine their meaning in some high priest. This has never led to truth. As Benjamin Cardozo observed in The Truth of Law, UMagic words and incantation are fatal to our science (law) as they are to any other." Learned Hand, a blunt man, said uThere is no surer way to misread any document than to read it literally." Guiseppe v. Walling, 144 F.2d 608, 624 (2d Cir. 1944). Cardozo demonstrated in T he Nature of the Iudiciat Process that uThe great generalities of the Constitution have a content and significance that vary from age to age.... A Constitution states ... principles for an expanding future," pp. 17, 83. A distinguished conservative scholar and jurist Felix Frankfurter said: It is an inadmissibly narrow conception of American 26 ROLE OF SUPREME COURT constitutional law to confine it to the words of the Con­ stitution and to disregard the gloss which life has writ­ ten upon them. Youngstown Sheet & Tube Co. v. Saw­ yer, 343 U.S. 579,610 (1952). And in writing of Justice Holmes, he noted that: The Constitution of the United States is not a printed finality but a dynamic process; its application to the ac­ tualities of government is not a mechanical exercise but a function of statecraft. Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 75-76 (1958). The essential qualities to give integrity, force, and vitality to the Constitution are deep commitment to its spirit, stern self-discipline in relating that spirit to present facts, under­ standing of the history and function of law in society, and sensitivity to the expanding future. A dictionary, smallness of spirit, and fear of change will not empower an old piece of parchment to curtail conduct of people that new condi­ tions compel. Perhaps the major question of our times is whether insti­ tutions can change to cope with the vast dynamics of mass urban population and burgeoning technology. The answer is far from clear. Can government be responsive to the needs of its people? Will technology master man? Can violence as an international and interpersonal problem solver be condi­ tioned from human capability? Can we assure human dig­ nity? Will racism divide people who must live together with dignity, respect, and love? All institutions must address themselves as their first SECOND LECTURE 27 priority to the science of effective change if we are to meet the challenge of tomorrow. The United States Supreme Court, inherently the most conservative institution within our system of government, has addressed itself to the present and future more effec­ tively than any other agent of our society. Somehow, these last 20 years, it has detected the greatest needs of our times in the cases that have found their way to its forum and has acted to meet those needs. The reapportionment cases, beginning with Baker v. Carr, 369 U.S. 186 (1962), in essence liberate government from the nineteenth century. Without that liberation, legislative bodies could not possibly address themselves meaningfully to the crushing problems of the people. The decisions were constitutional necessities. To have held otherwise would have crippled the spirit of a constitution that serves the people. In Brown v. Board of Education, 347 U.S. 483 (1954), and a multitude of other civil rights cases, the Court ad­ dressed itself to the one huge wrong of the American nation -racism-and caused us to begin to do what decency and justice require. The spirit of the Constitution was clear on this subject. What other meaning can the Thirteenth, Four­ teenth, .and Fifteenth Amendments have? The failure was in the people. To now blame the Court for upholding the Con­ stitution is hardly to respect that document or to seek ful­ fillment of its "TOrd. Finally, in a whole series of cases we sometimes describe under the heading of civil liberties, the Supreme Court, en- 28 ROLE OF SUPREME COURT forcing the Constitution, recognized the great crisis tn the meaning of the individual in our times-in human dignity. It said things we should have known all along. If we are to have equal justice, the poor, the ignorant, the sick, and de­ spised as well as the rich and powerful must have ((the as­ sistance of counsel for his defense." Gideon v. Wainwright, 372 U.S. 335 (1963). No longer can police question persons in their custody without advising them of their rights. Mi­ randa v. Arizona, 384 U.S. 436 (1966). Fulfillment of constitutional rights is no mere game. We insist on them. Government has an obligation to give them vitality, not seek their waiver. The educated know their rights, the rich have their lawyers; the powerful, however capable of crime, will be protected. So must the poor, the ignorant, and the power­ less. So Danny Escobedo and Ernest Miranda could not be convicted by their own confessions when they were denied constitutional rights. If we care for the future, our concern must not be that the Supreme Court had the wisdom and courage to face the central issues of our times, but that other institutions have done so little not only to seek solutions but to fulfill the critically important constitutional rights decreed by the Court. It will be 16 years next month since Brown, but fewer than 5 percent of the black children who have attended the public schools of the South during those years have had that essential constitutional right fulfilled. I would rather have my child brutally beaten than deprived of an educa­ tion. Scars may heal. We have found no way to replace a wasted life. Lawyers still struggle with the meaningless dis- SECOND LECTURE 29 tinctions between de facto and de jure segregation while lives of hundreds of thousands of children are blighted and the President of the United States talks of quality education, neighborhood schools, and the horrors of bussing. If segre­ gated public schools are inherently l~nequal, the equal pro­ tection clause of the Fourteenth Amendment prohibits them, whatever their cause. They are state institutions, are they not? There is little enforcement of Miranda, or Escobedo. Men of no compassion and little understanding say those deci­ sions have caused crime, when in fact the rights they sought to protect remain generally ignored. We ignored them at our peril. They are essential to human dignity. Nor is it mere irony that they would professionalize police if enforced. Sci­ ence and hard work are, after all, bett.er methods to discover truth than are words, often unreliable, coerced or obtained by trick from unrepresented and sometimes psychotic and frightened men. There are millions among us who have no rights in the only sense a right has value-that it can be enforced when threatened. They live in an uneasy order without law while patriots decry a court that seeks to fulfill the Constitution. The tests our system of government has weathered are only prologue. We remain a great experiment in the govern­ ment of a free people-and only the beginning. Midst such sweeping change, such vast turbulence, can we hope for mere words-antique phrases-a Constitution, a Bill of Rights-to preserve liberty? Words are not self-exe­ cuting-even if their meaning is clear. 30 ROLE OF SUPREME COURT Against pressures unrivaled in history can we sustain the spirit of freedom; a spirit seeking to enlarge liberty, foster curiosity, and tolerate doubt? Under stress will we hold with Thoreau that: If a man does not keep pace with his companions per­ haps it is because he hears a different drummer ... let him step to the music which he hears however meas­ ured or far away. Will the immensity of our problems: population, world peace, nuclear armaments, rising crime, racial strife, the de­ caying hearts of our great central cities, pollution, the sheer numbers in our environment so strain our understanding that we may confuse the essential liberties protected by the Constitution with the causes of our grief? Will we come to fear the strength of diversity, the virtue of difference? Will we see some nonexistent contest between liberty and security; between the rights of the individual and the protection of society? Can complexity and anxiety cause us to doubt that fulfillment is the flower of freedom, borne by no other tree; that freedom is the child of courage? Could we forget that nothing can so debilitate security as deprivation of lib­ erty ? Reason and experience both show that even the immensity of our problems is exceeded by the dimension of our oppor­ tunity. The wealth of our numbers, our technology; our af­ fluence enables us both to enlarge the rights of the individual and better protect our society simultaneously. It is for us to proceed to do both. We have the capability. We need only the will. SECOND LECTURE 31 Thus will we add new chapters in the History of Free­ dom and new names to the rolls of the legions of little peo­ ple whose stories, tragic and happy, tell the tale of liberty in our peculiar American way: J. M. Near, publisher; Newton Cantwell, Jehovah's Witness; the Society of Sisters, educa­ tors; Edward and George Boyd, importers; Thomas E. Kep­ ner, lawyer; Thomas Lee Causby, chicken farmer; Spotts­ wood Thomas Bolling, schoolboy; George M. Bain, Jr., bank cashier; John T. Watkins, labor organizer; John A. Johnson, United States Marine; Clarence Earl Gideon, drifter; Danny Escobedo, laborer; Loretta Stack, bakery worker; Benjamin Spock, pediatrician; Bobby Seale, Black Panther; David Dellinger, pacifist. It is not the words of the Constitution that guarantee our liberty. It is their place in our hearts and minds. So long as we are committed to the principles of the Constitution, we will know the blessings of liberty. While we are concerned by any violation of the rights of the least deserving among us, while we will not tolerate injustice, our rights remain se­ cure. When we are steeped in the tradition of those princi­ ples and raise our children in their understanding, liberty will prevail. The truth of the Constitution will abide. The question is, will we?

REBUTTALS

SAM J. ERVIN, JR.

I know that the only constant thing in life is change. So did the Founding Fathers. As a consequence, the Founding Fathers provided in the Constitution they framed and ratified that the United States should possess all the powers they could then anticipate it would need to constitute an effective national government. Moreover, they expressly stipulated that the Congress, as the nation's legislative body, should be empowered to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the government of the United States or in any department or officer of the United States. Under this grant of legislative power, Congress can make new laws or amend or repeal old laws whenever such action is necessary to meet any problem arising in any area commit­ ted by the Constitution to the United States. The Founding Fathers knew that useful alterations of some provisions of the Constitution would be suggested by experience. Consequently, they made provision for amend­ ment by the Congress and the states acting in conjunction as set out in Article V. James Madison, whom historians rightly call the Father of the Constitution, informs us that the Founding Fathers preferred this mode for amending the 36 ROLE OF SUPREME COURT Constitution because Uit guarantees equally against that ex­ treme facility which would render the Constitution too mut­ able and that extreme difficulty which might perpetuate its discovered faults." Why did the Founding Fathers reduce the Constitution to writing? The answer is simple. Since the Constitution is a written instrument, its meaning does not change unless its wording is changed by an amendment in the manner pre­ scribed by Article V. As the Supreme Court declared in South Carolina v. United States, 199 U.S. 437, ttthat which it meant when adopted, it means now ... those things which are within its grants of power as those grants were understood when made are still within them, and those things not within them remain still excluded." As Chief Justice John Marshall stated in Gibbons v. Og­ den, 9 Wheat. 1, 188, ((the enlightened patriots who framed our Constitution and the people who adopted it must be un­ derstood ... to have intended what they have said." There is no validity in the contention that the Constitu­ tion constitutes a quivering legal aspen leaf whose meaning automatically changes with the passing of time. The provisions of the Constitution were designed to be permanent until altered by an amendent conforming to Arti­ cle V. It was well designed by its framers to require a mini­ mum of amendment because all the grants of power it makes extend into the unlimited future. For example, Section 8 of Article I empowers Congress to regulate commerce among the several states. This grant of power enables Congress to regulate the interstate move- REBUTTALS 37 ment of persons, goods, and communications, regardless of the instrumentalities by which the movement occurs. As a consequence, the power of Congress to regulate the inter­ state movement of persons and goods by railroads and air­ planes came into existence with railroads and airplanes, not­ withstanding these instrumentalities did not exist when the interstate commerce clause was inserted in the Constitution, and to regulate the interstate transmission of communica­ tions by telephone, radio, and television, notwithstanding these instruments of communication were unknown to the Founding Fathers. It has been intimated that I am a strict constructionist of the Constitution because I share Chief Justice Marshall's conviction that the men who framed and ratified the Consti­ tution must be understood to have meant what they said. Let me assure you that I believe that every provision of the Constitution should be liberally construed to accomplish its objective. I deny, however, that Supreme Court justices have any power to add to the Constitution things which are not in it, or to subtract from the Constitution things which are in it. It is asserted that a strict construction of the Constitution would handicap the operation of the federal government. I challenge the validity of this assertion. Strict construction merely requires fidelity to the Constitution. I do assert, how­ ever, that constitutional government is going to be handi­ capped in the future by the action of the justices of the Warren Court in attempting to write into the broad princi- 38 ROLE OF SUPREME COURT pIes of the Constitution multitudes of their personal no­ tions. The Warren Court repeatedly assigned to constitu­ tional provisions meanings incompatible with their language and history. Time permits me to enumerate just a few decisions. The First Amendment provided in· part that CCCongress shall make no law abridging the freedom of speech." This provision has been rightly construed to confer upon all peo­ ple the right to think and express their honest thoughts. Hence, it secures to Communists, who believe that the United States government should be destroyed by force or other unconstitutional means, the right to so proclaim. The Warren Court stretched the freedom of speech clause of the First Amendment far beyond its true meaning. In Keyishian v. Board of Regents, 385 U.S. 589, the Court declared by a 5 to 4 vote that the First Amendment right of Communists to proclaim that the United States ought to be destroyed by force or other unconstitutional means disables a state to deny them employment as teachers in state educa­ tional institutions. In U.S. v. Robel, 389 U.S. 358, the Court declared by a 7 to 2 vote that the First Amendment right of Communists to associate with each other for the purpose of proclaiming that the United States ought to be destroyed by force or other unconstitutional means robs the Congress of the. United States of the legislative power to deny them employment in defense industries vital to the survival of the United States. Union pickets who wish to coerce an employer into com- REBUTTALS 39 pelling his employees to join the union have a right under the freedom of speech clause of the First Amendment to so proclaim in public places. I submit, however, that there is nothing in the First Amendment which requires the employer to furnish to such union pickets his private property for use as a forum. Nevertheless, the Warren Court held by a 6 to 3 vote in Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, that by virtue of the freedom of speech clause of the First Amendment union pickets now enjoy a constitutional right to invade the private property of a busi­ nessman against his will for the purpose of urging his cus­ tomers not to deal with him, and that no federal or state court in the land can grant the businessman any protection against such invasion of his private property. This decision converts a trespass of great antiquity into a new judge-made right, and is inconsistent with the law of private property which has prevailed in Anglo-American jurisdictions for hundreds of years. In this one decision, the Warren Court nullified the tres­ pass laws of all 50 of the states which forbid trespass upon private property against the will of its owner, and deprived all courts of equity, both federal and state, of their jurisdic­ tion to enjoin such trespass, notwithstanding the fact that courts of equity had exercised such power for many genera­ tions. I digress to note at this point that my opinion of the irra­ tionality of the decision in the Keyishian case is shared by a very wise man, Justice Tom Clark. (Laughter.) Justice Clark declared in his dissenting opinion: ccThe ma- 40 ROLE OF SUPREME COURT jority says that the Feinberp Law is bad because it has an (overbroad sweep.' I regret to say that the majority has by its broadside swept away one of our most precious rights, namely, the right of self-preservation." Let us take another illustration. The Fifth Amendment provides that ttno person shall be compelled in any criminal case to be a witness against himself." From June 15, 1790, when this provision became a part of the Constitution down to June 13, 1966, this clause, which is known as the self-incrimination clause, was interpreted by the Supreme Court to mean exactly what it says, namely, that no person can be compelled to incriminate himself by his testimony before any court or other agency having the power to take testimony. It was likewise held during this 176 years that this clause had no possible application to a voluntary confession made by a suspect in the custody of a law enforcement officer. On June 13, 1966, the Warren Court handed down by a 5 to 4 decision, Miranda v. Arizona, 384 U.S. 346, holding that on that day the self-incrimination clause had suddenly acquired a new meaning, and by virtue thereof it was uncon­ stitutional under such clause for either federal or state trial courts to admit in evidence any confession made by a sus­ pect to a police officer having him in custody, no matter how voluntary it might be, unless such police officer first gave the suspect certain warnings which did not even exist until the decision was made. One of the dissenting justices, Justice Harlan, declared that the decision in the Miranda case represented poor con- REBUTTALS 41 stitutional law, and held great danger for law enforcement in the nation. His statement as to the effects of the decision has proved to be true. As a result of it, multitudes of mur­ derers, burglars, robbers, and other criminals who voluntar­ ily confessed their guilt have gone unwhipped of justice. The Sixth Amendment provides, in part, that ((in all crim­ inal prosecutions the accused shall enjoy the right ... to have the assistance of counsel for his defense." During the 174 years next succeeding their becoming a part of the Constitu­ tion, these words were rightly interpreted to mean what they say, i.e., that the right of a person to the assistance of coun­ sel arises when a formal criminal charge is preferred against him. On June 22, 1964, however, the Warren Court handed down a 5 to 4 decision in Escobedo v. Illinois, 378 U.S. 478, which cast this time-honored and workable rule into the ju­ dicial garbage pail by holding that the constitutional right to the assistance of counsel arises before there is a criminal prosecution and accrues to any person in the custody of the police at the precise moment when the police begin to sus­ pect that he has committed a crime being investigated by them. In my judgment, the Warren Court should have held that Escobedo's confession was involuntary, and for that reason was inadmissible at his trial in the Illinois court by virtue of the due process clause of the Fourteenth Amendment. But the Warren Court always found it difficult to adhere to precedents when an opportunity to invent a new rule pre­ sented itself. 42 ROLE OF SUPREME COURT Under the precedents, it was easy for the Court to deter­ mine when the right of the accused to the assistance of counsel arose. Under the Escobedo rule, however, the court's ability to do this depends upon its power as a psychologist. The voluntary confession of an accused that he committed the crime with which he stands charged and the testimony of an eyewitness that he saw the accused commit the crime with which he stands charged, have been proven by experi­ ence to be the most reliable evidence known to mankind. Incredible as it may seem, the Warren Court has mani­ fested a distrust for evidence of this character. By its ruling in the Miranda case, the Warren Court devised a new and artificial formula to limit the admission of voluntary confes­ sions. And on June 12, 1967, the Warren Court expanded the Escobedo doctrine in U.S. v. Wade, 388 U.S. 218, Gil­ bert v. California, 388 U.S. 263, and Stovall v. Deno, 388 U.S. 293. In these cases, a sharply divided Supreme Court under­ took to put an end to a very sensible practice which had been pursued by federal and state law enforcement officers during the 177 years the right of counsel clause had been a part of the Constitution. Under this practice, such officers permitted eyewitnesses to crimes to view suspects in custody, and to determine by so doing whether such suspects were the persons the eyewitnesses had seen commit the crimes being investigated. As a result of this sensible practice, law enforcement officers were able to release suspects who were exonerated by the eyewitnesses, and immediately continue their search for the real criminals. REBUTTALS 43 The Warren Court undertook to accomplish its purpose by holding for the first time in these three cases that the right to counsel clause of the Sixth Amendment made, it un­ constitutional for the victim or eyewitness of a crime to look at a suspect in custody for identification purposes at any time between the commission of the crime and the trial of the case unless an attorney representing the suspect is pres­ ent, and that positive testimony given by the victim or eye­ witness of the crime upon oath in open court at the trial on the merits to the effect that the witness saw the crime com­ mitted and based his identification of the accused as its per­ petrator solely upon what he observed at that time, would have to be excluded from ~onsideration by the jury or court trying the facts, unless the presiding judge conducted a pre­ liminary inquiry, and ascertained by clear and convicing evi­ dence that the psychological certainty of the witness that the accused was the person he saw commit the crime was not in­ fluenced in any way by any unconstitutional view he had of the prisoner. If the self-incrimination clause of the Fifth Amendment and the right to counsel clause of the Sixth Amendment meant what the Warren Court declared they meant in the Escobedo, the Miranda, the Wade, the Gilbert, and the Sto­ vall cases on the days those cases were decided, they had had exactly the same meaning ever since June 15, 1790, when these clauses became a part of the Constitution. But the justices who participated in these five cases solemnly held that they had no retroactive effect. For all practical purposes, these justices thereby made voluntary confessions 44 ROLE OF SUPREME COURT that they were amending rather than interpreting the Consti­ tution when they handed down such decisions. The main reason assigned by the W a~ren Court for its de­ cisions in the Miranda, the Wade, the Gilbert, and the Sto­ vall cases is that law enforcement officers in America should be distrusted. In Miranda, it is said that they strive to coerce involuntary confessions, and for this reason, the making of voluntary confessions must be safeguarded. In the other three cases, the Warren Court asserts, in substance, that law enforcement officers are prone to suggest to witnesses that they shoul~ identify suspects in custody as guilty parties even though they might be innocent, and that a lawyer represent­ ing the accused must be present at the identification in order that he might be able to cross-examine the witnesses effec­ tively at the trial. I respectfully submit that it would be just as sensible to hold that a lawyer representing an accused cannot cross-examine witnesses effectively concerning the commission of a crime unless the lawyer sees the crime com­ mitted, and that for this reason, the right to counsel accrues at the time of the commission of the crime, and that the ac­ cused cannot be convicted of the crime unless his lawyer saw the crime committed. If time permitted, I could call your attention to multi­ tudes of decisions incompatible with the language and the history of the Constitution. I wish to call your attention at this time, however, to Jones v. Mayer Co., 392, U.S. 409, a 7 to 2 decision, which Mr. Clark argued before the Supreme Court as amicus curiae. Jones v. Mayer Co. is enough to REBUTTALS 45 make constitutional, historical, and linguistic angels weep. (Laughter.) In this case, the Court solemnly adjudged that when it en­ acted the Civil Rights Act of 1866 Congress really adopted an open occupancy law, even though Congress did not know anything about open occupancy in 1866 and even though the Court's novel conclusion is utterly incompatible with the in­ terpretation placed upon the act throughout the intervening 102 years. There is, in truth, no relationship between the open occu­ pancy concept and the Civil Rights Act of 1866, which is now codified as 42 United States Code 1982. This act provides: nAIl citizens of the United States shall have the same right, in every State and territory, as is en­ joyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." I digress to note that the act is not restricted to housing. It deals with all property, be it real or personal, tangible or intangible. In its decision in the lones case, the Court assigns to the words of the act a meaning they do not have and a purpose they are not intended to achieve. Since a white citizen's right to purchase or lease property has always been subject to the condition that its owner must be willing to sellar lease it to him, the Court distorted the words of the act in holding that they confer upon a black citizen the power to compel an unwilling owner to conveyor lease property to him. The Civil Rights Act of 1866 is designed to secure to all Americans of all races the equal protection of the laws at 46 ROLE OF SUPREME COURT the hands of states and territories in respect to rights in property. In other words, its sole purpose is to make all Americans equal before the law in respect to rights of prop­ erty, and not to subject the rights of property of one indi­ vidual to the demands of any other individual of any race. To sustain the constitutionality of its distorted construc­ tion of the Civil Rights Act of 1866, the Court invoked the Thirteenth Amendment, and in so doing attributed to it a meaning unrelated to the language in which it is couched. According to its wording, the Thirteenth Amendment does two things, and only two things. First, it outlaws slav­ ery; and, second, it outlaws involuntary servitude, except as a punishment for crime. Not a syllable in it imports a pur­ pose to subordinate the personal or property rights of one free individual to the demands of another. Despite these things, Jones v. Mayer Co. implies, in sub­ stance, that the power of Congress to enforce the limited objectives of the Thirteenth Amendment vests in Congress the unlimited power to regulate the personal activities and property rights of all Americans in order to prevent them from practicing private discrimination against blacks, re­ gardless of whether there be any state involvement and re­ gardless of what other constitutional provisions may declare. In the Jones case, the defendant refused to make any con­ tract to sell the residential property in controversy to the plaintiff. As a country lawyer, I know full well that at the time of the passage of the Civil Rights Act of 1866 and at the present time all states of the Union, including the state of Missouri, have a Statute of Frauds which provides that REBUTTALS 47 no suit can be brought upon any contract for the sale of real property unless the agreement upon which the action is brought or some memorandum or note thereof is in writing, and is signed by the owner or by some other person lawfully authorized to act as his agent. In its opinion, the Warren Court entirely overlooked the fact that in 1866 no white per­ son anywhere in the United States could have compelled any owner of real property to sell him such property unless the owner had bound himself to do so by a contract or memo­ randum or note conforming to the State of Frauds of the state in which the real property was situated. If the Warren Court had not overlooked this truth, it might not have fallen so sadly into error as it did when it held that the Civil Rights Act of 1866 was passed to enable black men to pur­ chase real property from an unwilling owner who had not bound himself to make any conveyance by any contract or memorandum or note conforming to the Statute of Frauds. What a Pandora's box the Court opened in Jones v. Mayer Co. This case represents judicial Constitution-amending in its most virulent form. This is so because in its ultimate analysis, the Jones case holds that Congress can pass any law necessary to prevent or redress private discrimination practiced against black men, regardless of whether such private discrimination occurs in commercial, political, or social relationships, or in a refusal to enter into such relationships. The case not only overrules, repudiates, or ignores all de­ cisions handed down during the preceding 102 years inter­ preting the Civil Rights Act of 1866, but all decisions 48 ROLE OF SUPREME COURT handed down the preceding 103 years holding that the Thirteenth Amendment only prohibits enforced compulsory labor of one man for another. It is certainly a far cry from the Jones case to the sound decision in Corrigan v. Buckley, 271 U.S. 323, which rightly holds that uthe Thirteenth Amendment denouncing slavery and involuntary servitude, that is, a condition of enforced compulsory service of one to another, does not in other mat­ ters protect the individual rights of persons of the Negro race." In the recent cases of U.S. v. Guest, 383 U.S. 745, and Katzenbach v. Morgan, 384 U.S. 641, the Supreme Court demonstrated a willingness to stretch the legislative powers of Congress far beyond their constitutional limits by attrib­ uting a newly invented meaning to Section 5 of the Four­ teenth Amendment. Section 5 confers upon Congress the power to· enforce by appropriate legislation the provision of the first section of the Fourteenth Amendment, which for­ bids any state to deny to any person within its jurisdiction the equal protection of the laws. A majority of the Supreme Court justices gave Congress the gratuitous assurance by way of dicta in the Guest case that they would vote to uphold future congressional legisla­ tion making the acts of private individuals federal crimes under this provision of the Fourteenth Amendment, not­ withstanding the language of the equal protection of the laws clause applies only to state action, and notwithstanding the Court has held without variation in a multitude of cases REBUTTALS 49 that Congress has no power to legislate under that clause in respect to the acts of private individuals. It is passing strange for judges to announce in advance how they will decide a case which may never arise under a law which may never be enacted. The Court squarely held, however, in the Morgan case that Section 5 of the Fourteenth Amendment empowers Congress to supplant a nondiscriminatory state voter qualifi­ cation with a newly created federal voting qualification, not­ withstanding the state voting qualification is in complete harmony with the equal protection of the laws clause, and notwithstanding Articles I and II and the Tenth and Seven­ teenth Amendments confer the power to prescribe voting qualifications upon the states and deny such power to the Congress. Another recent case indicating the willingness of the Supreme Court, as now constituted, to stretch the powers of Congress far beyond their constitutional limits by devising new meanings for constitutional provisions is South Carolina v. KatzenbachJ 383 U.S. 301. In this case the Court held that in the exercise of its power to enforce the Fifteenth Amendment by appropriate legislation, Congress can con­ demn the election officials of seven Southern states of violat­ ing the Fifteenth Amendment without affording them a ju­ dicial trial, and on that basis suspend the undoubted constitutional power of those states under Article I, Section 2, and Article II, Section 1, and the Tenth and Seventeenth Amendments to use a nondiscriminatory voting qualification, notwithstanding the guaranty of due process of the Fifth 50 ROLE OF SUPREME COURT Amendment, the prohibition upon congressional enactment of bills of attainder of Article I, and the sound decision of Ex Parte Milligan that ccThe Constitution of the United States is a law for rulers and people ... at all times and un­ der all circumstances and no doctrine involving more perni­ cious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." The novel method of interpretation by which the Court reaches its decisions in the Guest, Morgan, and South Caro­ lina cases is without parallel in our judicial annals. It belies the essential principle that all provisions of the Constitution are of equal dignity ap.d none must be so inter­ preted as to nullify or impair the others. Instead of inter­ preting the Constitution as a harmonious instrument in these cases, however, the Court views it as a self-destructive docu­ ment consisting of mutually repugnant provisions of unequal dignity. By so doing, the Court reaches the astound­ ing conclusion that Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment authorize Con­ gress to do these things: First, to nullify constitutional pow­ ers clearly allotted or reserved to the states by Article I, and Article II, the Tenth Amendment and the Seventeenth Amendment; and second, to pass congressional acts which the provisions allotting or reserving those constitutional powers to the states and the substantive provisions of the Fourteenth Amendment forbid it to enact. This method of interpretation, which sanctions the use of one provision of the Constitution to nullify some other pro- REBUTTALS 51 VISIons, maybe pleasing to judicial actIvIstS. It bodes ill, however, for the future of constitutional government. The tragic truth is that when the illogical decision in Kat­ zenbach v. Morgan is carried to its logical conclusion, it lays­ down the astounding doctrine that Congress, the creature of the Constitution, is empowered by Section 5 of the Four­ teenth Amendment to enact legislation robbing the states of the power to make, enforce, and interpret laws in areas committed by the Constitution to the states in order to in­ sure that,the states will not be able to violate the equal pro­ tection clause, whose language merely forbids the states to treat differently persons similarly situated. In other words, this decision holds in its final analysis that Congress has the power to abolish the federal system whose creation was one of the main objectives of the Constitution. We are told that the words of the Constitution automati­ cally change their meaning from time to time without any change in phraseology being authorized by Congress and the states in the manner prescribed by Article V, and that a ma­ jority of the Supreme Court justices possess the omnipotent power to declare when these automatic changes occur, and their scope and effect. This notion is the stuff of which a judicial oligarchy is made. Moreover, it is not flattering to George Washington, Benjamin Franklin, James Madison, James Wilson, Alexan­ der Hamilton, and the other hard-headed men who framed the Constitution, which requires every Supreme Court justice to take an oath or affirmation to support the Constitution. I do not believe that these hard-headed men would have been 52 ROLE OF SUPREME COURT so foolish as to require all Supreme Court justices and fed­ eral and state officials to take an oath to support the Con­ stitution if they did not intend it to be a permanent docu­ ment, or make provision for its amendment by Congress and the states acting in conjunction if they intended Supreme Court justices to alter its meaning while professing to inter­ pret it. Everyone will concede that the Constitution is written in words. If these words have no fixed meaning, they make the Constitution conform to Mark Twain's description of the dictionary. He said the dictionary has a wonderful vocabu­ lary, but ~o plot. RAMSEY CLARK

I brought my copy of the Constitution along (exhibiting copy of Constitution). The title of the discussion is uThe Role of the Supreme Court: Policymaker or Adjudicator?" You know, the Court is neither merely a policymaker nor an adjudicator. Life isn't that simple. The law isn't that simple. And to frame it so starkly misses the hard experience of our existence. We know that the Supreme Court is more than a mere adjudicator. Everything it does tells us that. We know that it is not essentially a policymaker. But what it does is it ex­ tends the policy of the Constitution of the United States to our daily lives by the process of adjudication. That's what it does. And you can't do that merely by reading words. I could go back through the cases and the doctrines that indicate that what I say is really the only thing that the Constitution can mean if the argument about it is to have more than personal predilection about it. But rather than do that, let me take a few of the cases that Senator Ervin has mentioned and, without dealing with their specifics necessarily, just think out loud with you about them for a few minutes and about the Constitution. Take his Communist cases. They are hard cases to start with, because the word Communist has a lot of emotional 54 ROLE OF SUPREME COURT content for American citizens. The word fuzzes up the hard edges of our reason. But we have to reason with it because it is a fact of life. The Supreme Court in construing the Constitution has to give meaning to it, in terms of the prac­ ticalities of our lives. The First Amendment says Congress shall make no law abridging the freedom of speech. If you want to read that just precisely, then you can make no law about pornography, can you? You can make no law about libel, can you? But suppose you came to a time when there were more than 3,700,000 people; when the biggest city was greater than 33,000 and where more than 5 percent of our popula­ tion lived in urban centers of 2,500 or more; a time when 3 million people worked for the federal government alone; when the greatest institution of the nation in terms of the people involved was education, nearly a third of the whole population, as student, teacher, or administrator, involved in that process. Suppose you said then in this interdependent society that yes, you can speak about communism but you may not be able to eat if you do because there will be no employment, we will withhold from you 3 million federal jobs if you choose to speak about something we dontt like, we will withhold from you any opportunity for employ­ ment, at our discretion, in education not because you have violated any law. We can enforce our laws. If a crime has been committed, people can be prosecuted. Does that put a burden on free speech? Is free speech supposed to mean something, or do we just put so much REBUTTALS 55 weight on it that a guy speaks at his peril, and his peril can be hunger? Let's talk about picketing for a minute, free speech and picketing. We can raise, if we want to, the sanctity of prop­ erty. I happen to be one of those old-fashioned people who think that without property, there would be no liberty. It's where our liberty begins, isn't it? You can't do anything if you don't have the means to do things, and property gives you that means. But speech means the opportunity not just to talk to your­ self but to communicate, to be heard. There has to be the other end of it, the reception, as well as the sending. What happens to property in our times? Where do people speak to be heard? The whole purpose of the First Amendment is to test ideas in the marketplace of public opinion. I don't happen to own a football field. I don't have the south 40 any more. I don't have a convenient park down­ town where we can all get together. If the state won't give me a permit, I can't speak. I can barely speak anyway, with 205 million people around. I can barely find a chance to communicate. Picketing was held many years, back in the 1930s, to be a form of speech. Where do you picket? Do you picket where you can be heard, or do you have to picket so far away from the only place that would make any difference that you're wasting your time ? You might as well do it in your closet at home. Does anyone say, does the case in any way imply, or do you know of any instance, when anyone has been deprived 56 ROLE OF SUPREME COURT of the opportunity to use his property because of this rul­ ing ? We see whole company towns, we see huge blocks of land where employees could never be reached in terms of communication by pickets, if pickets were not permitted to enter. It doesn't mean that they can obstruct. It doesn't mean that they can damage property. It doesn't mean they can interfere with operations. If they do, they do so at their peril and they ought to be prosecuted. But in our times you had better learn how to communicate. It's the greatest failing of our society today, probably, our inability to hear people, people from the ghetto and people from other parts of the same city and the state. It's hard to communicate and we have to open ways. And if we don't do that, if we say property is so precious that a man can buy you out of free speech, block you out, he's got all the acreage, then you'll have to speak in some other country. This fellow Miranda has created quite a fuss. How im­ probable it was that a little Mexican-American could be­ come so famous. There were four cases that came down that day. I think they have all been retried now and all convicted or pled guilty, without their confessions used against them. We didn't really need them, apparently, in those cases. But what does the Fifth Amendment say? We were told in the hyper­ bole of North Carolina-which is beautiful, I must say, I love to listen to it-that from 1787 the Fifth Amendment had meant one thing, and on June 15, 1966, all of a sudden it meant a different thing. It says that no person shall be compelled in any criminal REBUTTALS 57 case to be a witness against himself. It doesn't say in the courtroom. It doesn't say when it's too late. It doesn't say after, as we did all through the 1920s and 1930s, the police have beaten confessions out of you at the precinct house, af­ ter you have been taken around the horn, as they say, 17 different precinct stations over a period of 32 days. The amendment says Ctcriminal case." It means in the pro­ ceeding, it means to have substance. It means what it says, really. Of course, it means more than it says. It has to, be­ cause words can't have that vision. And it means .that the Fifth Amendment isn't a game. It's not all just what hap­ pens there when you are on the witness stand. The Constitu­ tion means you have this right. And the reason is that the state doesn't have to crush the individual before it, to humble him. Isn~t this really Pilate and Christ? Isn't this what it is? Didn't Pilate ask Christ CtArt Thou the King of the Jews?" as if Caesar couldn't make his case by himself. And didn't Christ answer, «Thou sayest it" ? I am a human being, I have dignity. If you say I commit­ ted a crime, you prove that I have committed a crime. Is that too much in our society? Are we incapable of it? Or do we want to humble the individual? Bend your knee to the state. That's what we're saying. That's what the Fifth Amendment is all about. It's not a contest. It applies throughout the procedure. Escobedo: I got some mixed impressions about the Sena­ tor's views about Escobedo. But Escobedo thought he was denied a lawyer. The Sixth Amendment says that in all 58 ROLE OF SUPREME COURT criminal prosecutions the accused shall have the assistance of counsel for his defense. Danny Escobedo was being ques­ tioned in a police station in Chicago. He saw his lawyer through the door; he was in the other room. He wanted to talk to his lawyer. He wasn't permitted to talk to his lawyer. The amendment doesn't say only when you are in the courtroom. It doesn't say that the police or the prosecutor or anyone else can question you for six months between the time of arrest and trial, but only in the courtroom do you have the assistance of counsel. It says in all criminal prose­ cutions. When? Whenever you need it, of course. Why else, than at any time? Jones v. Mayer is an interesting case. If Senator Ervin was displeased with it, he should have heard my argument. The Supreme Court paid no attention to it. I argued Jones v. Mayer on a constitutional basis. I thought there was a de­ privation of equal protection of the laws. The Court didn't go to the Constitution for a very sound reason of law. You don't reach constitutional issues if the statutes are disposi­ tive of the case. It decided the case on an 1866 statute, borne of the same spirit that gave us the Fourteenth Amendment, right after the Civil War. And it didn't say that black people have superior rights. It said they should have the same rights and the right they should have is the right not to be discriminated against. Many, many years later, in a huge development-l,600 houses, as I recall-with manifestations of government about it-there was far more than zoning. There was engi­ neering that had to be approved; there were dedications of REBUTTALS 59 streets and alleys and public easements; there were require­ ments for sewage and other necessities of modern life. With all these manifestations of government, a man was denied a right to buy a home because he was black. Are we to say that that can be done? If so, what abou! all of our fair housing statutes? What about Title II of the 1964 act? Are we unable to enforce equal protection? I think not. There were two complaints about the Voting Rights Act of 1965. SENATOR ERVIN: Pardon me a minute. But the Su­ preme Court justices recognized that they had to have the support of the Constitution. So they rewrote the Thirteenth Amendment. They said that when you discriminated against a man privately, you were enslaving him or imposing invol­ untary servitude on him or the badge of slavery on him. They would have done better to take your argument than the argument they developed. (Laughter.) MR. CLARK: I thought so too, Senator. (Laughter.) SENATOR ERVIN: They would have been wrong in that case but they wouldn't have been near as wrong as they were. (Laughter.) MR. CLARK: The reason I thought that would have been better is that they would have been so much better off in the next case, and that is the one I was worried about. (Laughter.) In the Voting Rights Act there is a problem, it is said, about a bill of attainder. While we are talking about the Su- 60 ROLE OF SUPREME COURT preme Court, the Voting Rights Act was passed by the Con­ gress, of course. It was passed to meet a problem. Let me tell you about voting. If you go back to the Ruth­ erford B. Hayes election, you will find that 80 percent of the qualified voters in the United States voted. -That was the last election before the end of Reconstruction, at the presi­ dential level. For the next five to six decades-seven dec­ ades really-you can find whole states where fewer than 9 percent of the qualified voters voted. You know where they were? In the part of the country that I come from, pretty much. Nine percent would vote for President one year. This was because of registration requirements, because of literacy requirements. It was because the people who were seeking office didn't want the black people to vote. The Congress thought that the Constitution required that all of our people have an equal opportunity to vote. It de­ cided wisely. It decided the only way it could, I think, in the spirit of the Constitution. And as a result, there are a mil­ lion more black voters in the United States today. The bill of attainder could have had no possible relation­ ship in the minds of the Congress. If you study the whole history of the bill of attainder, it had to do with royalty, it had to do with wealthy families. To think that those men were trying to look down at 1965 and see whether the Con­ gress of the United States could provide a formula that would say that the black people shall have an equal oppor­ tunity to be registered and vote is to deprive Congress of powers that are essential to the performance of its delegated powers and to make its function impotent. REBUTTALS 61 Morgan v. Katzen bach, a case complained of, arose from a provision that the administration didn't even put into the bill. It was put in on-maybe not on the floor, I can't re­ member. Perhaps in the committee. SENATOR ERVIN: It was put in on the floor-­ MR. CLARK: Put in on the floor. SENATOR ERVIN: -by an amendment offered by the two senators from New York. MR. CLARK: In the Senate, then. SENATOR ERVIN: Yes. (Laughter.) That was where the bloody deed was done. (Laughter.) MR. CLARK: I'm sure we had our opportunity for free speech and the First Amendment on that day anyway. (Laughter.) It's interesting in terms of change to look at that. If you go to New York City-I live up there-and if you have a radio, you find that there are Sp'anish broadcasts, on several stations at least; there are several publications in Spanish. You find that governments have taught people in Spanish and have not prepared them in English, governments of the United States. Are you then prepared to say that governments of the United States shall say they can't vote? What spirit of the Constitution or, indeed, what provi­ sion of the Constitution could say that under those circum­ stances? And what possibility is there that the Founding Fa­ thers when they were writing these words could have foreseen this possibility, this situation? 62 ROLE OF SUPREME COURT We're a pluralistic society, we have many, many difficult issues, and if the Constitution is to contribute to the quality of life in America, it will be through the vision and courage of men who give its principles application to the practicali­ ties of our lives. DISCUSSION

LAWRENCE SPEISER, American Civil Liberties Union: I have a comment and a question for Senator Ervin. I will start off with saying something that's usually said in the Senate but I really mean it. I have great warmth and affec­ tion toward Senator Ervin. When he's good, he's very, very good and when he is bad, he's horrid. (Laughter.) I think that everyone in the room should know that all that stands between us and an incredibly horrid law, the District of Columbia Crime Bill, really is Senator Ervin, who has filled the yeoman spot in fighting against it. I think we all owe a great deal of credit and thanks to him. But I do have a little problem with his discussion today. If you are correct that the Constitution means what it says, then I would assume that, since the First Amendment says only that Congr.ess shall pass no law abridging freedom of speech, that it is perfectly all right for members of the ex­ ecutive agency to abridge freedom of speech, because no law is involved. Therefore, the executive could deny parade per­ mits to groups with which it disagrees. It could place any kind of limitations on pickets that it wants to and the Con­ stitution really does not come into play, simply because Con­ gress has not made any law. 66 ROLE OF SUPREME COURT Secondly, I would assume that a state could do any­ thing it wants about abridging laws because all the amendment says is that Congress shall not make any laws abridging freedom of speech. I don't find the exactitude of language in the Fourteenth Amendment about depriving individuals of life, liberty, or property that would indicate that is intended to cover free­ dom of speech, as set forth in the First Amendment. Similarly, I don't see where there could be objection to the state's abridging of a wide range of rights or lib~rties simply because the prohibition is not spelled out as against the states with the exactitude that it is against the federal government in the Bill of Rights. So I have some trouble with your belief that the Constitu­ tion means what it says, that all we have to do is look at the language and that resolves the problem. SENATOR ERVIN: If the language of a provision of the Constitution is plain, it is the duty of the Supreme Court to assign to such provision its obvious meaning; but if a provi­ sion of the Constitution is ambiguous, it is the duty of the Supreme Court to place itself as nearly as possible in the po­ sition of the man who drafted the ambiguous provision and by so doing determine the intent the provision was intended by them to express. The executive branch of the government has no power to make a law. To be sure, the President has the power to rec­ ommend to Congress that it enact a particular law, but Con­ gress can ignore his recommendation. The President can veto legislation enacted by Congress, but Congress can over- DISCUSSION 67 ride his veto by a vote of two-thirds of each House. So Con­ gress alone can make a law. It is forbidden, however, by the First Amendment to make any law abridging the freedom of speech. As I have indicated, Congress possesses all the legislative power granted to the federal government by the Constitu­ tion. The First Amendment forbids Congress to pass a law abridging the freedom of speech. The Supreme Court has held that the due process clause of the Fourteenth Amend­ ment makes the First Amendment applicable to the states. I don't quarrel with that holding. In my opinion, freedom of speech constitutes a fundamental right essential to ordered liberty.. The content of freedom of speech must be determined to a large degree by the principles of the common law because the Constitution is written in large measure in the words of the common law. At that time it was recognized, for example, that the right of freedom of speech didn't protect a man who cursed another man and provoked that man to attack him. He was guilty of a common law crime of assault. It was also held until almost the 19505 that the First Amendment right of freedom of speech did not protect obsecenity. Since that time, the Supreme Court has amended that and added two other qualifications and fixed it so that the public can not protect itself against obscenity to all practical intents and purposes. But I'll say you emulate the example of Senator Barkley. Senator Barkley used to say, if a senator gets up and refers 68 ROLE OF SUPREME COURT to HMY good friend, the able, distinguished and esteemed senator from such and such a state," hets fixing to stick a stilleto in him. (Laughter.) JOHAN BENSON, Legislative Reference Service: I have a question for Mr. Clark. You said that the Court was nei­ ther all a policymaker nor all an adjudicator. Would that be correct? MR. CLARK: Yes. MR. BENSON: And, with respect to Senator Ervin's re­ marks, he tried to bring in the thought that the amendment process ·was the way to make changes in the Constitution. I think perhaps, if I interpret you correctly, that the policy­ making role is in a sense an amendment process, but you may remark on this. What I'm trying to get at is: When is the amendment process the most suitable means to approach the Constitu­ tion and when do you in a sense make your policy? Perhaps more philosophically speaking, do you draw on other princi­ ples of law that you can state when you make this extension or this more free interpretation, such as perhaps in equity or in the spirit of the Constitution, which you quoted? Is that question clear? MR. CLARK: Sure, it's clear. The answer is not very clear. (Laughter.) The question is, you know, a very central question to what wetre talking about this afternoon and it's very diffi­ cult not to be merely semantical about it. Nobody constru­ ing the Constitution as a justice of the Supreme Court is likely to say he's amending it. He's construing it. If it DISCUSSION 69 doesn't seem to some readers, or perhaps to some who don't read, to be the same as what the Constitution said or intend­ ed, why, then you have a matter of judgment. I thin.k we know this: That you have the problem'of stare decisis involved and this, I think, is essentially what Senator Ervin was saying in his remarks about the obscenity cases. As far as stare decisis is concerned, I think that we have to know that the Court has to give meaning to the Constitution as it applies to its times, and that this may seem inconsistent with earlier interpretations made by the Constitution. If you tried to give precise meaning to every opinion of the Constitution rendered by the Supreme Court up to 1900 on any single provision, it would boggle the mind. You can't do it. Life doesn't lend itself to such tidy arrange­ ments. As to the amendatory process, we know that it's very dif­ ficult. We know that it takes a long time. We also know that in the long run it undermines the very purpose of the Constitution. The present constitution of my state, the state of Texas, and it's true of so many state constitutions, has got so many amendments to it that it might as well be a statute book, and I mean this literally. Lawyers do not know all those amendments. They've been added and added and added and every time-they've come to treat the constitu­ tion as if it were a statutory process. So I think it's a matter of degree. The Constitution has to grow to meet new conditions. The Founding Fathers could not foresee cybernetics. To try to think what they meant in a particular word in the Constitution and how it might apply 70 ROLE OF SUPREME COURT is not very realistic. Life hasn't worked that way. Life never did work that way. So what you have to do is those things that I tried to say in my opening statement. The traditions about the Constitu­ tion are awfully important and we have to hold them very dear because the words can't enforce themselves. Words don't enforce themselves. We have to have a sense as to what those principles mean and we have to, more than ordi­ narily in our times, endeavor to adhere to them. Separation of powers is more important in our time than heretofore. Federalism is more important in our time than heretofore. Freedom of speech is more important, because the burdens on speech in mass urban society are infinitely greater than they were in 1787. It was hard to interfere with a guy's speech then. You'd have to walk three and half days to find him to interfere with his speech, you know, and you'd have to find a marshal and that would take you a week. These things are important and we have to believe in them but we have to relate them to the present realities and the present realities were undreamed of. I would hate to have to write words that would endeavor specifically to bind the conduct of people in the year 2000. Because I admit I can't begin to foresee that. I could state general principles and I hope that they could be relevant then' and, if not, that they could be amended. Men could give meaning, in terms of their situation as it develops, to those general principles. I think that's the essence of the process of constitutional adjudication: to give meaning to the general principles, to DISCUSSION 71 have firm traditions of defining the law and of the relevance of the law in society and how it works and what it means. It's not an easy process. Judging is a very difficult process, always was, but it's more difficult in our times because the questions are more difficult and the answers more obscure. MR. BENSON: Then would I be construing your remarks correctly by saying that the principles of the Constitution which now are there are only interpreted differently in the light of present circumstance, rather than your drawing upon other principles, prior principles. Are you placing greater emphasis on existing principles than you would have at some other time? I'm trying to rationalize the process of what is extra-constitutional in some of these statements. MR. CLARK: You don't look to a higher law or any­ thing else and I'm not sure that you apply the principles dif­ ferently. I think you apply them in the context of the situa­ tion that you have before you. That may seem different but it's the context that's different. You don't say all of a sudden that we don't really have separation of powers, that we have a fourth branch that has an independence of the executive, that has an independence of the legislative. We have courts that are not Article III courts. I don't think we can look to some higher need. I think those are the types of things that we have to seek to amend the Constitu­ tion to secure, but I haven't seen the need for it yet. I think the system is working well, if we give it vitality in the light of an expanding future. MR. BENSON: May I address the question to Senator Er- 72 ROLE OF SUPREME COURT vln then? That is, do you see that the interpretations of which you have spoken are drawing upon things which are not in the Constitution? I think that would be your view. And can these be stated as extra-constitutional principles? SENATOR ERVIN: The facts that we have a written Constitution, that change is constant, and that change brings new problems to government do not trouble me as much as they do a lot of people. Section 1 of Article I of the Constitution grants to Congress all of the legislative power of the federal government. Various provisions of the Constitution grant many legislative powers to Congress. All of these grants of power extend into the unlimited future, and may be exercised by Congress at any time. As a conse­ quence, Congress can repeal or amend old laws or make new laws at all times with respect to anything committed to the federal government by the Constitution. But Congress does not always take action in fields in which it is author­ ized to act. Unfortunately, the Warren Court succumbed to the temptation to enter the vacuum left by Congress and really usurped on such occasions the lawmaking power of Congress. It did this by the simple expedient of saying that what the Court wished to do was required by the Constitu­ tion. In the long run such action on the part of the Court disables government to deal with change. This is so because it makes flexible legislative power of Congress inflexible. Take the Miranda case for instance. Congress had un­ doubted legislative power to make the warnings announced in the Miranda case a rule of evidence for the federal DISCUSSION 73 courts. Likewise, the Supreme Court could have set forth the required warnings in a rule of criminal procedure under the power delegated to it by the Congress. The Warren Court was not willing to take this modest step because of its insa­ tiable thirst for power. It could not make this requirement applicable to the states without writing it into the Constitu­ tion. Hence, the justices of the Warren Court declared that the Constitution requires the warning. It is to be noted that four of the ablest members of the Supreme Court declared in their dissents that this was not so and that the justices of the Warren Court were usurping power they did not have. The habit of the Warren Court in writing the personal notions of its members into the Constitution is unfortunate for it ties the hands of Congress and the hands of the legis­ latures of the states in respect to future action. Its actions make it plain that George Washington was right when he said that those who occupy public offices have a love of power and proneness to abuse it. The Warren Court did not attempt to usurp and exercise the power of the purse which the Constitution commits to the Congress. However, I wouldn't have been surprised to have seen it attempt to do so. (Laughter.) The Supreme Court is not a policymaker. A policymaker is an agency of government which bases its decisions UpOl1 what it considers to be expedient or what it considers to be prudent or what it considers to be wise. It is the duty of the Supreme Court to apply the Constitution and the laws in accordance with their true meaning regardless of whether the justices consider them to be expedient or prudent or 74 ROLE OF SUPREME COURT wise. The right to base actions upon considerations of ex­ pediency, prudence, or wisdom is a legislative and not a judicial power. RICHARD HIRSHBERG, lawyer in private practice: Sen­ ator Ervin, you touched on the matter of appointing Su­ preme Court justices. A few minutes after the vote on Judge Carswell was announced, Senator Dole was interviewed on television and made the suggestion, as I understood it, that the President might just hold off filling this vacancy until after the next general election. Is there any power in any branch of the federal govern­ ment to compel the President to make an appointment to one or more Supreme Court vacancies? SENATOR ERVIN: No, under the doctrine of the sepa­ ration of powers, the President has the power to make the nomination and the power to time the making of the nomi­ nation. I don't think there's any way we can mandamus him. I think we can both agree on that, can't we? (Indicating Mr. Clark. Laughter.) MR. CLARK: I'd have to think about it. (Laughter.) MR. HIRSHBERG: So conceivably, there could be three or four vacancies throughout the expiration of President Nixon's present term and possibly second term and Presi­ dent Agnew's first and second term? (Laughter.) SENATOR ERVIN: I think there's very potent force which would prevent that. We had a governor in North Carolina named Gregg Cherry. One of the state officials died and somebody asked Gregg who he was going to ap- DISCUSSION 75 point to the job. He said, ttl think I can find several patriots who would be willing to take it." (Laughter.) I think that if the President doesn't make an appointment pretty soon, there's going to be a lot of pressure brought on him by various organizations and various individuals for him to select some patriot to fill the vacancy. MR. BENSON: Would you accept it, Senator? (Laugh­ ter.) SENATOR ERVIN: Your question is like asking a young lady, cCIf I should decide to propose marriage to you in the future would you accept my proposal?" (Laughter.) JEROME BARON, Law Faculty of The George Wash­ ington University: Senator, noting your comments about Miranda and Jones v. Mayer and so on, I wonder what re­ sponsibility you would expect a new appointee on the Su­ preme Court to assume, with regard to those decisions, if he had your opinions on them ? Would he, under the doc­ trine of stare decisis, be bound to follow them? SENATOR ERVIN: I don't think he would, under the doctrine of stare decisis, because that's been sort of thrown out of the window. (Laughter.) But I think any justice who hereafter ascends the bench and. has a conscientious conviction that the rule imposed by the majority decision in the Miranda case is not required by the Constitution is duty bound to strive to make the position expressed by the four dissenting justices a majority decision. I believe that the Miranda case illustrates a mistake often repeated by the Warren Court, i.e., holding that the Consti­ tution imposes their personal notions upon the nation. The 76 ROLE OF SUPREME COURT Court has done this too often in respect to matters which ought to have been left to legislative bodies. Under the act of Congress delegating to the Supreme Court the power to establish rules for criminal trials, the Warren Court could have written the requirement of Miran­ da into a federal rule of criminal procedure. If it had do?e so, however, it would not have imposed the rule upon the states or placed it beyond repeal by an act of Congress. The Warren Court said in that opinion that Congress could legislate in this field, provided Congress adopted at least as stringent a rule as the Court had prescribed. In oth­ er words, the justices of the Warren Court not only usurped the power of Congress to act but they also put limitations on the power of Congress. Congress had to be at least as stringent as they were. There can't be a case anywhere except in court and a man can't be a witness anywhere except in some kind of a pro­ ceeding where testimony is being taken before a court or some quasi-judicial organization. Talking to a policeman can't be said to be a case in court, or a man can't be said to be a witness when he's talking to a policeman. ROBERT BLAKEY, Senate Subcommittee on Crminal Laws and Procedures: My name is Robert Blakey and I work in the Senate. SENATOR ERVIN: Yes, sir, I know you right well. (Laughter.) MR. BLAKEY: I'd like to ask a comparable question of Mr. Clark as the professor asked. Since about 1960 the Supreme Court in the criminal justice DISCUSSION 77 area has overruled specifically 28 of its own precedents. In 20 of those, they have been of a constitutional dimension, that is, they specifically stated that a prior case is no longer the law. I understand you to be saying that you understand the Constitution to be a process of adjudication where the Court has the duty to look at the language of the Cons.titu­ tion, but primarily to make its decision in terms of what it thinks is wise or prudent today. MR. CLARK: You-- MR. BLAKEY: Let me finish. MR. CLARK: I'll let you finish but don't put words in my mouth. MR. BLAKEY: If that or something comparable to it is what you seem to· be saying that the Constitution is, it's .a process of adjudication,-- MR. CLARK: Yes, it is. MR. BLAKEY: -whereby the Court makes its judgment. How safe would you think those privileges against self-in­ crimination as embodied in Miranda or those privileges against compulsory discrimination embodied in Brown would be, if new appointees are given to the Court and new men take up with new ideas of what today requires? MR. CLARK: You know, I lost the question some place. You want me to say what I think new men should do? ,MR. BLAKEY: No, no. I wonder if the Constitution means what the process of adjudication in the Court says it is, looking at the language of the Court, looking at the his­ tory, and looking at today as a guide to 'Yhat it ought to be, in the same way that the Court could be led in Miranda to 78 ROLE OF SUPREME COURT decide that Wilson was no longer good law or the Court can be led in Brown to say that Plessi is no longer good law, because of new meanings of police interrogation or new meanings of school segregation or the need for school desegregation? For those views are essentially those of the men on the Court at that time. If these are to be our liberties, how safe are they when new men go on the Court who could have different views of what society requires? MR. CLARK: I don't think words ever have or ever will protect liberty. I think it takes a lot more than that. I'm pre­ pared to assume that the men who have rendered decisions for the majority or the minority of the Supreme Court with whom I've agreed were conscientious men. I don't call them usurpers. I assume they called it like they saw it. It may be that they couldn't detect that it was a personal prejudice of theirs or a personal predilection. But I think a man trained in the law, a man who is devoted to the princi­ ples of the Constitution, who has a background in them and understands them, can try to give meaning to them. I think we'll find that freedom's pretty fragile, always was, but con­ siderably more fragile perhaps in our times. It's not protect­ ed by mere words but by the attitudes of people who insist upon these things called free speech and due process and equal protection. I should add, too, that the mere proclamation by the Court as to what due process and equal protection is doesn't make it fact in our lives. That's one of the really tragic things. We see that throughout the field of racial discrimi- DISCUSSION 79 nation. We proclaim the law, we say it's the supreme law of the land. We say we believe in the enforcement of law and we deprive those people of their constitutional rights year after year. We do the same thing in the criminal justice field, as you well know, and, therefore, let's not over-rely on words. Let's realize that life is people and that we have to discipline our­ selves to believe in these things and to try t

suddenly said that Brown v. Board of Education is all wrong, that there is no equal protection clause or, if there is one, it doesn't have anything to do with discrimination against blacks. I think we would find how very fragile the rule of law and constitutional government is in terms of the feeling of people and the emotion of the times. MR. BLAKEY: That's not so unreal as to Miranda} would you think? MR. CLARK: No, it's not. I think Miranda is a much different and more narrow issue. It affects far fewer people in more remote aspects of our lives. It's less understood. People don't see Miranda. They don't see questioning by po­ lice. They don't know what it is. The meaning to the public of Miranda is a terribly tortured meaning. I don't think the public has had a fair opportunity to know what Miranda means. DR. HOWARD PENNIMAN, Georgetown University: I would like to ask a question of both, which is a follow-up I think in a sense to the question that's just been asked. It seems to me, as I hear your explanation, that you are really depending upon what one might call good guys on the Su­ preme Court, because when you were worried about Ham­ mer v. Dagenhart or worried about the Dred Scott case or worried about some of these other cases, these were judges acting presumably in the same good faith as the judges are acting who are making the decisions which you like. You said the reapportionment cases beginning with Baker v. Carr were in essence to liberate the government from the nineteenth century. Without that liberation, legislative bod- DISCUSSION 81 ies could not possibly address themselves meaningfully to the crushing problems of the people, etc., etc. It seems to me, though, that the Court has not ceased to throw out legislative decisions any more since Baker v. Carr than it did before Baker v. Carr, or in the follow-up cases. May it not be a safer protection of people's rights and liberties, if the laws and the interpretations are made by those who indeed are responsible back to the people who elect them, rather than if they are made by what, in 5-4 de­ cisions or any other size decisions on the Court, are a matter of luck, whether they turn out to be the Hammer v. Dagen­ hart type or whether they turn out to be the Miranda case? MR. CLARK: Would you like to take that question? SENATOR ERVIN: Go ahead. (Laughter.) MR. CLARK: I think the idea of good guys and bad guys oversimplifies it. I do think we need greatness on the Su­ preme Court and that's one reason I think the Senate acted wisely and courageously this afternoon (rejecting President Nixon's nominee to the Supreme Court). These are hard things to do. The thing that misleads us about Dred Scott is to say that these words tell us that we can't face this problem of a com­ ing civil war, that it is an irreconcilable conflict, that institu­ tions can not address themselves to it. It is misleading to have men on the Court, as industry grew, who would say that government can't solve this problem of child labor. We'll have to live with it or the Constitution will have to be amended, in implication, something that doesn't happen very often. 82 ROLE OF SUPREME COURT I think that judicial review, which is really what you're asking about has worked well by and large. Certainly, in my judgment, these last 20 years the Suprelne Court, far more than the executive branch, far more than the legislative branch, has acted to enrich the quality of justice in our lives and acted wisely and acted in the light of the Consti­ tution. DR. PENNIMAN: But has it increased popular govern- ment or popular control of government? MR. CLARK: Absolutely. DR. PENNIMAN: Or has it levied-- MR. CLARK: Absolutely. Can there be any question about that in terms of the reapportionment cases? Don't we see a tremendous impact from the reapportionment cases? Was reapportionment coming from the legislatures? Was it coming from the executive branch? Hasn't it made- DR. PENNIMAN: The reapportionment cases-- MR. CLARK: It's made an immense difference in popular government. One man, one vote has done more, you know, and is doing more-it's not over yet, the processes are never over-to create popular government than anything that was likely to come from the legislative or the executive branches, so far as my experience can see under the present circum­ stances. I said in my talk that I thought the Supreme Court is in­ herently the most conservative institution in government. It really is. There is not a more secure group of men in the United States. They serve during good behavior. They come on generally late in life and everything about that institu- DISCUSSION 83 tion lends qualities of conservatism. If you look at the men, just a few more than a hundred, that have served that insti­ tution, they are men who have been involved in the main­ stream of the wealth and experience of the country. There­ fore, it is as much a reflection on our other institutions as a credit to the Supreme Court that it's played that rather great role these last years. DR. PENNIMAN: Could I ask the senator to comment on the same question? SENATOR ERVIN: As I understood your question, you asked in effect if the people who were elected by the people would not do a better job. DR. PENNIMAN: Isn't this a safer bet than the bet on five-to-four majorities on a court? SENATOR ERVIN: I think many questions ought to be decided on grounds other than constitutional grounds. Now the question in the Miranda case ought to have been decided as a matter of legislation. Courts are not well equipped to be policymakers. In the first place, a legislative body can acquire information from every source. Courts can acquire information only from the record in the case. At least that's supposed to be true. Courts used to say, HWe will not decide a case on consti­ tutional grounds, unless we are compelled to do so." The Warren Court strained its eyes to see constitutional ques­ tions coming from afar and it ran to embrace them in every case it got a chance to do so. (Laughter.) As a result, we have had a thwarting of one purpose of the Constitution. In the Miranda case and other cases like it, 84 ROLE OF SUPREME COURT the Supreme Court changed interpretations placed upon the Constitution for 175 years to make a uniform system of criminal administration throughout the country. One of the great things about this country arose out of the fact that the Constitution divided the powers of government between the federal government on the one hand and the states on the other and it permitted the states to make new experiments in government. If the experiments failed, nobody was affected except the states that tried them. When the Supreme Court prescribes rules for government at the top and imposes them on all of the states, we no longer have the states as laboratories for experiments in government. I would say that by and large the liberties of the people have been curtailed during recent years, not only by the ac­ tion of the Court but the action of the Congress. This is true because we've had this constant centralization of power in Washington and centralization of power in a big country imposes definite threats to the freedom of the individual. FOOTNOTES

FIRST LECTURE

1. United States: Formation of the Union, pp. 147, 152, 165, 167, 422, 429, 548, 752, 753, 756, 848, 849, 852. 2. Bute v. Illinois, 33 U.S. 640, 652. 3. Ex Parte Milligan, 4 Wall. 2, 8 L.ed. 281. 4. Texas v. White, 7 Wall. 700. 5. Article III, Section 1. 6. Article VI. 7. James Madison: The Federalist, No. 43. 8. Ullman v. U. S., 350 U.S. 422. 9. U. S. v. Butler, 297 U.S. 1,78-79. 10. Sun Printing and Publishing Association v. Remington Paper and Power Co., 235 N.Y. 338, 139 N.E. 470. 11. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404, 81 L.ed. 703, 715. 12. Marbury v. Madison, 1 Cranch. 137, 175. 13. Gibbons v. Ogden, 9 Wheat. 1, 188. 14. Marbury v. Madison, 1 Cranch. 137. 15. Gibbons v. Ogden, 9 Wheat. 213, Ex Parte Bain, 121 U.S. 1; Lake County v. Rollins, 130 U.S. 662. 16. Brown v. Allen, 344 U.S. 443, 535. 17. See e.g., Justice White in Reitman v. Mulkey, 387 U.S. 369 (1967); and Justice Stewart in Jones v. Mayer Co., 392 U.S. 409 (1968).