75 Years Ago: Requiring Patriotism

In 1942, America was in peril.

It was immersed in a war for survival and faced powerful enemies to the east and west. It had already suffered a sneak attack at Pearl Harbor and faced a long, bloody road to victory. For many, it was a time to demonstrate their patriotism and support for their country.

The West Virginia Board of Education chose to do so by enacting a rule that required children to salute the flag. Students who failed to salute would be subject to disciplinary action, which included the possibility of being expelled or sent to reform school. The parents could be prosecuted for contributing to juvenile delinquency.

At the time, Germany was sending thousands of Jehovah’s Witnesses to concentration camps for refusing to salute the Nazi flag. Jehovah’s Witnesses were forbidden by their religion to salute flags, which they consider a form of idolatry.

Walter Barnette was a Jehovah’s Witness in West Virginia who instructed his two daughters not to salute the flag or recite the pledge of allegiance. The girls were duly expelled, and Barnette took the matter to court, asserting that the salute violated the principles of freedom of religion and of speech.

The case eventually made its way to the Supreme Court.

Three years earlier, the Court had ruled that a Pennsylvania school board had the right to require Jehovah’s Witnesses to salute the flag. These enforced demonstrations, one justice argued, were a means of creating national unity.

On June 14, 1943, the justices reversed this earlier decision. Justice Robert Jackson wrote, “Freedom to differ is not limited to things that do not matter much. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

The Post editors applauded the decision. They recognized that the freedom to express one’s patriotism was one of the things America was fighting to defend.

As the Constitution Center recently noted about the ruling, “Patriotism and free speech still collide now and then. Such debates remind us that individual expression can be criticized and yet still protected by the First Amendment.”

-From a July 10, 1943, editorial in The Saturday Evening Post:

Score for Freedom No. 2

The Supreme Court happened to select Flag Day to hand down the opinion that it had been wrong in an earlier decision in a Jehovah’s Witnesses flag-salute case. The court, in reversing itself, declared that state statutes calling for salutes to the flag by school children were in violation of the Bill of Rights unless they took account of the religious convictions of minorities.

In Justice Jackson’s words: “If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matter of opinion, or force citizens to confess by word of mouth their faith therein.”

The principles of Jehovah’s Witnesses can be pretty annoying to the majority of citizens. They insist on propagating their beliefs at the most inconvenient times and places, and they make no concessions to the sensibilities of the majority. To our way of thinking, this makes all the more impressive the action of the court, taken in time of war, when hysteria can so easily be directed toward eccentric minorities, to protect the elementary rights of unpopular individuals.

The majesty of the flag will not suffer because it has been permitted to remain the symbol of a willing loyalty. While the honest convictions of American citizens are protected by judicial authority from the zeal of well-meaning but often impatient officialdom, the flag, which symbolizes our hard-won privileges, waves more proudly than before over the land of the free. Love of country is not in danger. It springs, to quote Justice Douglas, “from willing hearts and free minds.”

Featured image: Wikimedia Commons

Sandra Day O’Connor: Breaking the High Court’s Glass Ceiling

On September 25, 1981, Sandra Day O’Connor was sworn in as the first woman member of the Supreme Court.

That distinction alone would have earned her a place in the American history books. But Justice O’Connor also proved to be memorable for several of her judicial opinions, which had far-reaching consequences. For example, she was the pivotal vote in Bush v. Gore, which resolved Florida’s disputed presidential election results and decided the presidential election of 2000.

Though generally conservative in her opinions, O’Connor would occasionally show an independent streak when she sided with the court’s more liberal judges. She provided the crucial swing vote in Planned Parenthood v. Casey in 1992, which upheld the Court’s earlier opinion in Roe v. Wade.

In our 1985 article, “Her Honor: The Rancher’s Daughter,” writer Joan S. Marie presents a more personal side of O’Connor, including the morning aerobics classes she organized at the Supreme Court, stories of her childhood on an Arizona ranch (bobcat included), and the antics of Family Olympics Day. Typical of “working woman” profiles of the era, Marie spends as much time showing how O’Connor managed her family as she did her caseload, and even works in a recipe (crab enchiladas).

But O’Connor’s determination to excel at her profession shines through. She shares how hard she had to work to even get into the legal profession. When she graduated from law school in 1952, she had difficulty even finding work because no law firm was interested in hiring a woman. She eventually opened her own law firm, became Arizona’s assistant attorney general, a state senator, a superior court judge, and a judge on the Arizona Court of Appeals. In 1981, the call came from the Reagan White House.

In the 1985 article, O’Connor anticipated that America would soon see more women on the bench: “In our law schools today, at least half the students are women. I fully expect to see the percentages of women in the practice reflected in the roughly similar percentages on the bench and in other activities in which lawyers are generally engaged. So I certainly do think we are going to see that reflected — not only here but in judicial offices across the nation.”

O’Connor served on the Supreme Court for 25 years, until her retirement in 2006. She was the first woman Supreme Court justice, but, of course, she wasn’t the last. Clinton nominee Ruth Bader Ginsberg and Obama nominees Sonia Sotomayor and Elena Kagan followed in her path.


Archive page to article
Click to read “Her Honor: The Rancher’s Daughter,” by Joan S. Marie, from the September 1, 1985, issue of the Post.

Featured image: Sandra Day O’Connor being sworn in by Chief Justice Warren Burger in 1981 (White House Photographic Office, National Archives)

6 Surprising Exceptions to Freedom of Speech

Subscribe to The Saturday Evening Post for more articles, cartoons, art, inspiring stories, fiction, humor, and access to our archives.

Although the First Amendment to the Constitution states, “Congress shall make no law… abridging the freedom of speech,” Americans don’t have the luxury of always saying whatever they want. Your right to free speech is limited by where you are, what you say, and how you say it.

Here are six areas where your talk can make you liable in criminal or civil court.

1. Obscenity

 Most of the legal cases that concern sex and free speech have involved publications (a form of speech as far as the courts are concerned). Obscenity is not protected by the Constitution, but it has been difficult to define what is obscene. In 1973, the Supreme Court, in Miller v. California, came up with a three-part definition of obscene material. A work is legally considered obscene if

This limit on obscene speech also applies to broadcasting. The FCC controls what is allowed on air, so you can’t broadcast sounds or images that could be offensive to your audience or use language inappropriate for children.

However, the Supreme Court has, so far, kept the internet free of obscenity restrictions. You can make whatever statements you want on social media sites, but the owners of those sites have the freedom to censor or delete your content if they find it offensive.

2. Lies

Lying is covered by the First Amendment, except when it’s not. You can be prosecuted for lying under oath in court (it’s called perjury). You can also be charged with misleading authorized investigators. Remember Martha Stewart’s conviction in 2004? She went to prison for lying to investigators about her stock trading.

It is also illegal to run dishonest advertisements. And if you deliberately tell lies about people, you can be hit with a lawsuit in civil court for either libel (if published) or slander (if spoken).

Politicians, on the other hand, have broad protections against being prosecuted for lying, and citizens largely have free rein to criticize their governments, even if the comments are false. Luckily for late night talk show hosts, the First Amendment allows citizens to satirically mock a public figure.

3. Violence

You can’t make offensive remarks or personal insults that would immediately lead to a fight. You also can’t threaten violence to a specific person unless you’re making an obvious exaggeration (for instance, “I’m going to kill my opponent at the polls”). Finally, you can’t knowingly say things that cause severe emotional distress or incite others to “immediate lawless action.”

In 1951, the Supreme Court concluded in Dennis v. United States that the First Amendment doesn’t protect the speech of people plotting to overthrow the government.

4. Students’ Speech

Students have limited rights of free speech while in school. In 1986, Bethel School District v. Fraser upheld the right of a school to suspend a student for making an obscene speech. Hazelwood School District v. Kuhlmeier, 1988, supported a school’s right to censor student newspapers. However, many states are now passing laws to grant broader First Amendment protections to student speech.

5. Offending Your Friends and Coworkers

You don’t have the right to say whatever you want in someone else’s home or other private setting. And, as an employee, believe it or not, you have no free-speech rights at your workplace. The Constitution’s right to free speech applies only when the government — not a private entity — is trying to restrict it. For example, an employer can legally fire an employee whose car bears a campaign bumper sticker he doesn’t like.

It’s a different matter for government employees. In Elrod v. Burns, the Supreme Court ruled in 1976 that the Constitution prohibits government employers from discharging or demoting employees for supporting a particular political candidate.

The law also prohibits speech that shows clear intent to discriminate or sexually harass.

It also prevents employees in medical or financial fields from discussing confidential information outside of work.

6. Expressing Your Political Views

The law has never permitted Americans to protest in any way they wanted. While the government can’t control what you say, how you say it must be subject to what the courts consider an appropriate time, place, and manner.

Legal authorities have a responsibility to protect the safety of attendees at political gatherings and to protect protestors themselves. If authorities think you pose a sufficient risk, you can be restricted to a Free Speech Zone. These have been used since the 1980s, principally to contain protestors at political conventions.

House Bill 347 authorized Secret Service agents to arrest anyone protesting in the president’s or vice president’s proximity. They also have this authority at National Special Security Events. These events have included state occasions, of course, but also basketball championships, the Academy Awards, Olympic events, and the Super Bowl. A conviction can result in up to 10 years in a federal prison (another place where your freedom of speech is limited).

Featured image: Shutterstock

7 Things You Need to Know About the Ninth Circuit Court of Appeals

The U.S. Court of Appeals for the Ninth Circuit has drawn significant attention as it decides whether to sustain federal judge James L. Robart’s temporary restraining order on President Trump’s travel ban last week. The appeals court panel is expected to make a decision within a few days, and if it decides in favor of Robart, the Justice Department will likely appeal the case to the Supreme Court. The panel consists of Judge Richard R. Clifton, appointed by George W. Bush, Judge Michelle T. Friedland, appointed by Barack Obama, and William Cameron Canby, Jr., appointed by Jimmy Carter.

There are 13 courts of appeals in the U.S., and they each hear cases that are appealed from their respective district courts. Cases that are appealed further can be heard by the Supreme Court.

Here are 7 facts about the Ninth Circuit Court of Appeals:

  1. The Ninth Circuit Court of Appeals is the largest of the 13 appellate courts in the country. The Ninth Circuit currently holds 29 judgeships with four vacancies. The next-most populous jurisdiction is that of the Fifth Circuit, which maintains 17 judgeships.
  1. The Ninth Circuit Court of Appeals was established by Congress in 1891. Since then the jurisdiction of the Ninth Circuit — originally six states — has expanded to include more Western states. Its jurisdiction includes California, Arizona, Alaska, Washington, Oregon, Idaho, Nevada, Montana, Hawaii, Territory of Guam, and Territory of Northern Mariana Islands. The upsurges in populations of these states over the 20th century have led to more and more authorizations for judgeships in the Ninth Circuit.
  1. The great size of the Ninth Circuit has been cause for many congressional proposals to split the circuit in various ways. The most recent such effort involves a bill proposal from Arizona senators to form a new circuit.
  1. Of all the circuit courts, the Ninth Circuit has the highest percentage of rulings reversed or vacated by the Supreme Court.
  1. Nicknamed the “Hollywood Circuit,” the court hears a number of celebrity cases. In 1993, “Wheel of Fortune” star Vanna White won a case against Samsung for appropriation of her likeness when they featured an ad of a robot turning letters.
  1. Several highly publicized cases seen by the Ninth Circuit have been the cause for conservative criticism of the court. In the 2004 case, Elk Grove Unified School District v. Newdow, the Ninth Circuit found the words “under God” in the Pledge of Allegiance to violate the Establishment Clause of the U.S. Constitution. In 2011, the court upheld the order against the military’s “don’t ask, don’t tell” policy.
  1. Of the sitting judges in the Ninth Circuit, 18 have been appointed by Democratic presidents and 7 by Republicans. At one time 15 out of 23 sitting judges were President Carter’s appointments, but only one of his appointed judges still remains.

A Century-Old Question: Are Corporations People?

The power of the Supreme Court has long been a sore point to critics who dislike the idea of lifetime-appointed judges with a supreme power to overturn the laws produced by Congress.

Writing for the Post in 1916, Reuben Melville Wanamaker argued that the Court was defying the will of the people, as reflected in the work of their representatives. Melville, a judge on the Ohio Supreme Court, was particularly outraged by the federal court’s broad interpretations of the 14th amendment. The 14th Amendment may not be as familiar to Americans as the 1st and 2nd, but it has continued to make a significant impact on Americans’ lives.

Originally, Congress passed the 14th amendment to guarantee the civil rights of black Americans recently freed from slavery after the Civil War. Wanamaker felt the amendment had been little help to black Americans, and that the Supreme Court had used the amendment to protect the interests of corporations. Wanamaker was particularly angered by the Supreme Court’s opinion that corporations had constitutional rights as people did and were entitled to equal protection under the law guaranteed by the 14th Amendment.

In the 1886 case Santa Clara v. Southern Pacific, the Supreme Court’s chief justice stipulated that the equal protection rights guaranteed by the 14th Amendment applied to corporations as well as people. Today, any act of Congress, unless otherwise stated, equally applies to corporations, associations, firms, and other legal entities as it does to individuals.

So when Mitt Romney said, “Corporations are people, my friend,” in 2011, he was only stating a legal fact.

Recent court decisions have taken the principle of corporate personhood even further. In Citizens United v. FEC (2010), the Court ruled that corporations have the same rights as people to spend money to influence the outcome of elections. And the Court’s 2014 ruling in Burwell v. Hobby Lobby acknowledged that a business may hold a religious belief that can exempt it from federal laws.

Having been with us for well over 100 years, the corporations-as-people conundrum will not soon fade away. Nor will the arguments, made by Wanamaker and others, that the Supreme Court exerts too much influence on the shape of the government.

But in his article, Wanamaker proposes a check on the Court’s ability to overturn the work of the legislature. Congress, he claimed, could require the Court to meet a higher standard of concurrence before ruling a law unconstitutional. Instead of acting on simply a one-vote majority decision, the Court would need to obtain a three-fourths vote.

We, the People, or We, the Judges?

By R.M. Wanamaker, Judge of the Supreme Court of Ohio

Originally published on June 10, 1916 (excerpted)

Some years ago the New York City Library published an official statement as to the number of state and Federal statutes that had been nullified by the supreme courts of the states and nation, covering the period from 1902 to 1908 inclusive. That report showed four hundred statutes, passed mostly in exercise of the police power, which had been nullified by the courts on the ground that they were contrary to the provisions of some state or Federal Constitution.

Professor Collins, in his most excellent work on The Fourteenth Amendment and the States, by a carefully prepared chart shows that there have been fifty-five cases decided adversely to state statutes by the Supreme Court of the United States under the Fourteenth Amendment alone up to 1910; and that over eighty percent of them were during the last fifteen years of that period. Assuming that each decision affected only ten of the forty-eight states, it would show a slaughtering of over five hundred statutes as being in conflict with the Fourteenth Amendment alone — to say nothing about other statutes found in conflict with other provisions of the Federal Constitution.

Judge R.M. Wanamaker
Judge R.M. Wanamaker

In this same excellent work another chart shows that the Fourteenth Amendment has been invoked before the Supreme Court of the United States in over six hundred cases, in which the Supreme Court assumed jurisdiction and rendered opinions. In three hundred and twelve of these cases corporations were parties complaining of the statute; two hundred and sixty-four were individuals who were, in the main, only nominal parties, some corporation being the real party in interest; and there were only twenty-eight cases in which the negro race itself was affected, though the latter was the prime and paramount consideration for the adoption of the Fourteenth Amendment. Surprising, isn’t it?

What has caused this large increase in the slaughtering of statutes in our courts? The answer may be found in the surprising and expansive interpretation of the Fourteenth Amendment by the Federal Supreme Court, as will speedily appear.

This amendment, as every student of history knows, was intended as the great Magna Charta for the negro race, which had been but five years previously emancipated by the immortal Lincoln.

The chief part of that amendment — Section 1 — reads as follows:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

That the amendment failed as the great Magna Charta of the black race is a matter of common knowledge; that its surprising interpretation by the Supreme Court of the United States has enabled this amendment to destroy the great Magna Charta for both negro and white races, and substitute therefore a City of Refuge for the corporations of the several states, does not admit of doubt on an examination of the official record.

The first cases in the United States Supreme Court calling for a construction of this amendment were decided in 1873, and … known as the Slaughterhouse Cases.

Justice Miller, who delivered the opinion in these cases for the court, said, among other things:

FIRST. This court is thus called upon for the first time to give construction of these amendments.

SECOND. An examination of the history of the causes which led to the adoption of those amendments, and of the amendments themselves, demonstrates that the main purpose of all three last amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.

THIRD. In giving construction to any of those articles it is necessary to keep this main purpose steadily in view, though the letter and spirit of those articles must apply to all cases coming within their purview, whether the party concerned be of African descent or not.

FOURTH. We doubt very much whether any action of a state not direct by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.

The last language quoted from Justice Miller’s opinion shows that, though he was a good interpreter of the Fourteenth Amendment, as to what its primary purpose was, yet, indeed, he was a bad prophet; for just thirteen years later this same Supreme Court, in Santa Clara versus the Southern Pacific Railroad, 118 U.S., 394, decided in 1886, held, by the syllabus of that case, as follows:

“The provision of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the law, applies to corporations.”

The only reference in the opinion of this radical reversal of the doctrine laid down by Justice Miller in the Slaughterhouse Cases appears in the following language, which is self-explanatory:

“Announcement by Mr. Chief Justice Waite:

The court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a state to deny to any ‘person’ within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

The corporations referred to in this announcement were the Southern Pacific Railroad and the Central Pacific Railroad.

Are Corporations Persons?

By what legal legerdemain or judicial inspiration this Fourteenth Amendment was amended by the Supreme Court of the United States, the court does not tell us. It seems content with a Thus saith the court!

The Fourteenth Amendment is composed of five sections, and the word person appears in the first three. The language of the amendment itself, reinforced by the debates thereon, the paramount purpose of the amendment, unmistakably, and without the shadow of a doubt demonstrates that in using the word person the framers and adopters intended it to mean a human being and nothing else. Judge-made law is bad enough, but judge-made constitutions are infinitely worse.

No wonder the Supreme Court of the United States denied to counsel all opportunity to argue the question as to whether or not the word person included a corporation! This interpretation was in defiance of the Congress that framed the amendment; in defiance of the negro race, to protect which the amendment was passed; in defiance of the general public understanding and interpretation of the amendment; in defiance of the Supreme Court’s own construction of it in the Slaughterhouse Cases. And, had such an interpretation been anticipated by the states when they came to adopt it, I challenge a denial of the fact that not half a dozen states of the Union, North or South, would ever have ratified that amendment.

The natural and necessary effect of this interpretation of the Fourteenth Amendment made the Supreme Court of the United States the supreme guardian and final supervisor not only of Federal statutes but of all state statutes, and even of municipal ordinances. The Supreme Court of the United States had passed from a court of law and equity, as those words are understood in the world’s jurisprudence, and had now become a political court — I do not mean a partisan one — a court that spoke the last word as to municipal, state and national public policies.

During the first century of our Government the Supreme Court of the United States confined its doctrine of nullifying legislative acts chiefly and sparingly to questions pertaining to the organization of courts and judicial procedure; questions relating to the exercise of powers not delegated in the Constitution; interference with state powers; ex post facto laws; laws impairing obligations of contract; denial of trial by jury, and other fundamental individual rights, as recognized generally by the laws of all civilized lands. But, following the adoption of the Fourteenth Amendment, the nullified laws partook of quite a different character. It would be difficult to classify all of them, but the large majority of the laws were nullified on the claim that they were in conflict with some provision of the Fourteenth Amendment, either the “due process” clause or “equal protection of the laws” clause — or both.

A very large percentage of the statutes nullified by the Federal courts, or by the state courts following precedents of the former, may be classified as follows:

FIRST. Labor statutes: Those providing for safety appliances to protect the life and limb of the workingman; sanitary regulation in mines, workshops and factories; workmen’s compensation laws; abolishing company stores; providing for hours of labor, pay days, and so on; and the right of laborers to organize and protect themselves in such organization by denying the employer the right to coerce them out of a labor union, or, if they had not yet joined such union, to prevent membership in such union.

The Bureau of Labor, in 1910, issued a bulletin alleging that one hundred and fifty statutes and ordinances relating to labor had been held unconstitutional, either entirely or in part, by the courts of the land.

SECOND. Rate laws: Those undertaking to fix and regulate public-utility rates; for the Governmental control of public-service corporations; and also for the inspection and taxation of the same.

THIRD. Trade and occupation statutes: Those undertaking to safeguard the public interest under the police power of the state, and providing for certain qualifications, inspection and regulation of certain lines of business closely allied with the public welfare.

Numerous other lesser classes might be named, but these will be sufficient to indicate the general class of statutes that have been challenged and, too often, declared unconstitutional on the ground that they were in conflict with the Fourteenth Amendment to the Federal Constitution.

Shall this growing political power under the name of the Supreme Court of the United States go on unchallenged and uncontrolled as the guardian of our American democracy, and as a substitute for “We, the people,” not only in our Federal Government but even in our state and municipal governments?

Justice Hughes, of the Supreme Court of the United States, before the New York State Bar Association, on January fourteenth last, delivered an address in which he used the following language:

“If there were centered in Washington a single source of authority from which proceeded all the Governmental forces of the countrycreated and subject to change at its willupon whose permission all legislative and administrative action depended throughout the length and breadth of the land, I think we should swiftly demand and set up a different system. If we did not have states we should speedily have to create them.”

This language is as simple as it is striking. However, there was little need for the learned justice to put the case hypothetically. The great mass of our people believe that there is today “a single source of authority from which proceed all the Governmental forces of the country — created and subject to change at its will — upon whose permission all legislative and administrative action depends.”

The Views of Lincoln and Jefferson

But they go farther than the learned justice and point their finger at the Supreme Court of the United States as that assumed “single source of authority.”

It is but fair to Justice Hughes to say that, during his six years as a member of the Supreme Court of the United States, he has been a frequent dissenter from the prevailing policy of the Supreme Court.

No state statute can be passed today without asking the question: Will the Supreme Court let it stand?

No city ordinance can be passed today without asking the question: Will the Supreme Court of the United States let it stand? But why have states at all if the states shall be mere shapes and shadows; if the states shall not be sovereign in state affairs; if the states must all the while anticipate the viewpoint and judgment of the Supreme Court of the United States, and finally be forced to surrender to the court’s view and veto on public policies?

A judicial body was what was intended to be created by the Constitution of the United States; but, instead, we have a political body passing on political questions — not partisan ones — great questions of public policy affecting not only national interests but state and even municipal interests, all the while exercising over them the right to veto, the right to supervise, the right to modify, the right to destroy. And when the people once thoroughly wake up, will they not consider the suggestion of the learned justice to, “swiftly demand and set up a different system”?

Lincoln, on the battlefield of Gettysburg, in an immortal address closed with these words:

“That we here highly resolve … that the nation shall, under God, have a new birth of freedom, and that government of the people, by the people, and for the people, shall not perish from the earth.”

Lincoln placed the paramount power of the Government in the hands of the people, and forty-six of the forty-eight state constitutions have reaffirmed this doctrine by declaring: “All political power is inherent in the people.”

From time to time various reforms have been suggested to correct this growing evil, all the way from a constitutional amendment denying such power to the recall of judges, the recall of judicial decisions, and various other ways and means of correcting this use and abuse of the power.

Federal constitutional amendments are so difficult and tedious that this method is hardly worth considering. Only two amendments to the Federal Constitution have been adopted in the last fifty years.

The recall of judges and the recall of judicial decisions presuppose that the wrong has been done in a particular case and that an effort should be made to correct it by removing the judge, though his successor may be little if any better; or by recalling the decision, which would be difficult in its practical political operation.

The Ohio Remedy

Ohio has paved the way for a remedy by the states by adopting, in 1912, as part of its constitution the following provision — Article IV, Section 2:

“No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.”

I do not commend the exception. It results in this anomaly: that if the state court of appeals by a vote of two to one holds the law unconstitutional, four of the supreme court judges may hold it unconstitutional; and if the court of appeals by a vote of two to one, or unanimously, holds the statute constitutional, then six of the seven judges are necessary to hold it unconstitutional. There should not be this discrimination. The exception should have been omitted from the constitution.

As a step in the right direction this constitutional provision of Ohio is generally approved by our people and has been found to work well as an effective and salutary restraint on the judiciary.

Though Ohio furnishes the suggestion of a remedy for the several states, this remedy is of little consequence where a Federal question is involved under the Fourteenth Amendment; for there the Supreme Court of the United States would take jurisdiction, and could, by a vote of five to four, or six to three, as has been quite common of late, hold the state statute dealing with state matters as unconstitutional.

The Supreme Court of the United States, in the exercise of the power to nullify a statute, state or Federal, on the ground that it is contrary to some provision of the Federal Constitution, has uniformly held that it must be “ clearly” so; and as a standard of clearness has again and again held that the conflict must be “beyond a reasonable doubt.”

Now, how can the conflict between the statute and the Constitution be clear or be- yond a reasonable doubt when nine men, sitting as judges of the Supreme Court of the United States, presumably of equal integrity of mind and heart, equally patriotic, equally learned in the law and the Constitution, divide on the judgment of unconstitutionality by five to four or six to three?

When we deal with the criminal, no matter how atrocious or how overwhelming the evidence may be against him, he is presumed to be innocent; and before he is found guilty the twelve men in the jury box must find that guilt to a moral certainty or beyond a reasonable doubt. On that proposition all twelve must concur. On a matter affecting the millions of people of a state, and perhaps the hundred millions of a nation, the statute should not only be presumed constitutional — and this is the law — but, before that presumption can be overcome, should it not be by at least a three-fourths concurrence, or seven of the nine judges of the Supreme Court?

Melville Davisson Post, in an article in this weekly under date of December 18, 1915, uses this language with reference to the decisions of the Supreme Court of the United States:

Out of seventy-seven consecutive decisions rendered by the Supreme Court of the United States, twenty-nine were given by a vote of five to four, and forty-six by a vote of six to three; in only two instances did as many as seven out of the nine justices agree.

On the ordinary legal question a mere majority must be sufficient for a judgment, else in many cases there could be no final judgment. But in cases involving public policies, as defined by state and Federal statute — cases involving questions of eminent domain, taxation, police power, and the like, which are inherent and sovereign in the domestic affairs of the state and the home-rule affairs of our municipalities, questions that are more of a political nature than legal — why should not at least a three-fourths vote be required by the Supreme Court of the United States on the fact of clear conflict, before the statute or ordinance should be nullified by the Supreme Court of the nation?

When the statute clearly permits what the Constitution clearly prohibits, or the statute clearly prohibits what the Constitution clearly permits, you then have, in such a situation, that clear conflict where both statute and Constitution cannot stand. Of course the statute should yield to the fundamental law — the Constitution.

But who shall be the judge as to such clear conflict? We have seen that, in England, Parliament alone determines this question — not the courts. In France it is the Senate and Chamber of Deputies — not the judges. And in every leading nation of the world, save the United States, it is likewise the legislative body that determines whether or not there is such clear conflict; and the action of such legislative bodies is final.

The courts of those nations have nothing whatever to do with the question. Their legislative bodies are representative bodies — at least, the controlling branch is elected directly by the people.

But here in the United States, for more than a century, the courts have exercised this power without warrant of the Constitution, but by authority of judicial custom and precedent, which the courts themselves have widened and extended; so that they are not only the Supreme Court but the supreme legislature, the supreme executive, the supreme government of the nation, the states and our municipalities.

How Congress Can Mend Matters

Now the thing that is proposed is not entirely to reverse this order, but to recognize and restrain it by applying the very principles and rules that the Supreme Court itself has for a century or more announced — this doctrine of clear conflict; this doctrine of a conflict beyond a reasonable doubt, which should be clear to more than a mere majority; else it is clearly not clear.

There is nothing radical or revolutionary about requiring more than a mere majority vote in unusual or exceptional procedure. Legislatures of state and nation, when they depart from the regular order in lawmaking, frequently require a two-thirds or three-fourths vote. Why should not the courts, when they depart from the regular order by law-unmaking, be required to do so by more than a mere majority vote — by a two-thirds or three-fourths vote?

In order that Congress may propose an amendment to our Federal Constitution it is expressly provided that two-thirds of both houses shall concur; and such proposed amendment cannot become a part of our Federal Constitution until three- fourths of the states have ratified the same by their legislatures or conventions.

Of course the adoption of a Federal Amendment to the Constitution limiting the power of our Federal courts in this behalf would be effective when accomplished; but the difficulties in the way of its accomplishment would be a repetition of the time and effort made in behalf of the amendment for the election of United States senators by a direct vote of the people, and for an income tax. And it is utter folly, under the enlarged jurisdiction asserted by the Supreme Court of the United States, on the Federal questions arising under the Fourteenth Amendment and other amendments, to attempt to cure this evil through state constitutions; for, as was said of old, “Saul hath slain his thousands, and David his ten thousands.”

So it can be truthfully said today that though the state courts have assumed jurisdiction to nullify legislative acts, the chief offender in this behalf, and from whom the state courts have found precedents more or less obligatory on them, has been the Supreme Court of the United States. Now, how can this limitation on the power of the Federal courts, touching constitutional questions, be brought about?

After a careful examination of the Federal Constitution I am persuaded that there is no need of a further amendment in order to authorize Congress to place a limitation on the Supreme Court of the United States on Constitutional questions. The power and authority are there now in the clearest and most unambiguous terms. It is found in the Federal Judicial Article III, Section 2, in this language:

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

If now Congress should pass an act declaring that no state or Federal statute should be declared null and void, as contrary to public policy or contrary to any state constitution or the Federal Constitution, unless by the concurrence of a three-fourths vote of the Supreme Court of the United States, the evil would be very largely if not entirely remedied.

If this article shall have produced an interest in this subject, a discussion of the underlying principles of democracy, a consideration of the remarkable growth and evolution of this power of centralized government by the Supreme Court of the United States, and whether or not some practical and effective restraint is not highly and immediately essential to the preservation of our American system of government, then it will not have been in vain.

Doing the Job Congress Wouldn’t Do: The Supreme Court Breaks Up Standard Oil

The Supreme Court’s decision in the case of Standard Oil of New Jersey v. United States, handed down 105 years ago on May 15, 1911, was a turning point for both the American government and interstate business. And like any important Supreme Court case, the decision wasn’t without controversy.

John D. Rockefeller founded Standard Oil in Ohio in 1870. The business grew quickly and spread throughout the United States. In 1882, Standard Oil’s principle stockholders came together to turn the business into the nation’s first trust. This trust would involve more than 40 corporations that were connected through complex, impenetrable legal structures, and would eventually control 90 percent of the petroleum business, from drilling to refinement to retail.

Fearing the effects of growing monopolies not only in oil but in tobacco, sugar, and steel, Congress attempted to establish government regulation through the Sherman Anti-Trust Act of 1890, which forbade “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” In 1892, under the terms of this act, the Ohio Supreme Court ordered Standard Oil to dissolve and distribute its share through 20 companies.

The action made little difference to Standard Oil, which operated in several states. It simply shifted its assets and interests to Standard Oil of New Jersey, well outside the jurisdiction of the Ohio Supreme Court, and continued to dominate the market.

Individual states did not have the power to restrain this interstate behemoth; only the federal government could. But the Sherman Act was so broadly worded that a literal interpretation of it would cause more harm to the country’s interstate commerce than allowing the trust to continue and the monopoly to grow. For 12 years, the act proved useless for breaking up anything but trade unions.

In 1900, journalist Ida Tarbell wrote an exposé on Standard Oil, accusing them of gaining market advantage through unfair business practices, including buying up essential supplies to keep them out of competitors’ hands, undercutting competitors’ prices until they folded, and striking secret deals with railroads for exclusive low rates for transporting oil.

With the public crying for justice and fairness, President Theodore Roosevelt took action in 1902, and his Department of Justice filed a federal anti-trust suit against the company. The case lasted over two years, called 444 witnesses, and produced a 14,500-page report, which concluded, in 1909, that Standard Oil should be dissolved. Standard Oil appealed, but on May 15, 1911, the Supreme Court upheld the ruling.

Not for the last time was the argument made that the Supreme Court was forced to do the work that Congress wouldn’t.

The Post had always supported Roosevelt and his progressive principles for both government and business, but this judicial interpretation of federal law had the editors and many others worried. Though the Post approved of the outcome — the dissolution of a monopoly — it was wary of the precedent of judicial legislation that had been established. The following two editorials from 1911 illustrated to Post readers the dilemma that was the Standard Oil Trust.


For a Commission on Trusts

Originally published on June 17, 1911

Cover of Puck
A Congressional session is so much theater, and Standard Oil’s John D. Rockefeller and Henry H. Rogers control the tune.

President Taft sent a special message to Congress in which he said, concerning the Sherman Anti-Trust Act:

“The Supreme Court in several of its decisions has declined to read into the statute the word ‘unreasonable’ before ‘restraint of trade.’”

May 15, 1911, in the Standard Oil decision, the court did read the word “unreasonable” into the statute, and Justice Harlan cogently objected that this amounted to legislation on the part of the court. But the court had to legislate because Congress persistently refused to.

The Oil Trust was formally organized in 1882, controlling about 90 percent of the country’s petroleum industry. In 1892 the Supreme Court of Ohio solemnly pronounced it an illegal combination in restraint of trade.

The trust promptly reorganized in New Jersey and continued exactly as before. Meanwhile, it had become evident that the separate states could not possibly exercise effective control over the great industrial combinations that were steadily increasing in number and power, so in 1890 Congress made a poor bluff at discharging its duty to control them by passing the Sherman Anti-Trust Act, which simply forbade them to exist. Of course they continued to exist and to multiply until a large portion of the country’s interstate industry was conducted by them.

When the Supreme Court came to decide the Standard Oil case, it faced the alternative of literally interpreting the statute, thereby disorganizing an important part of the country’s commerce, or of bringing the law into some sort of consonance with the facts. It chose the latter course, and the net result is that with regard to this important problem of control over monopolistic interstate industrial combinations the country stands virtually where it stood 30 years ago. A combination that would then have been illegal under the common law is now illegal under the Sherman Act as interpreted by the court.

More than 20 years ago another phase of this same problem — namely, the need of some sort of effectual control on behalf of the people over monopolistic interstate business — came before Congress. That phase of the problem concerned the railroads, and Congress created the Interstate Commerce Commission. For a long while the commission was moribund; but of late years it has been steadily building up an effectual control over the railroads. It has accumulated and studied a mass of facts in that relation, and Congress has added to its powers when experience has shown such additions to be necessary.

Will Congress create, along the same lines, an Interstate Trust Commission; or will it, for another 10 or 20 years, relegate this growing trust problem to nine estimable gentlemen — trained in law but not in legislation or economics, much burdened with other duties and responsible only to themselves — who constitute the Supreme Court?


What the Sherman Act Has Done

TR, Henry H. Rogers, and John D. Rockefeller on the cover of Puck
Channeling the infant Hercules, baby Teddy Roosevelt wrestles the serpents of Standard Oil, Henry H. Rogers (left) and John D. Rockefeller (right).

Originally published on June 24, 1911

The anti-trust act of 1890 reads: “Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade, is illegal.” Deciding the trans-Missouri freight case in 1896, the Supreme Court said: “The plain and ordinary meaning of such language is not limited to that kind of contract which is in unreasonable restraint of trade; but all contracts are included and no exception or limitation can be added without placing in the act that which was omitted by Congress. … In other words, we are asked to read into the act by way of judicial legislation an exception that is not placed there by the lawmaking branch of the Government. … This we cannot and ought not to do.” If the act were to apply only to unreasonable restraints of trade, the court added, “Congress is the body to amend it, and not this court by a process of judicial legislation wholly unjustifiable.”

Fifteen years passed, during which Congress refused to amend the act; but in deciding the Standard Oil case the court did read in the word “unreasonable” — thereby, as Justice Harlan says, not only reversing its former decision but practically amending the act by judicial legislation.

This, then, is one thing the Sherman act has accomplished — caused the Supreme Court to reverse itself and to exercise a legislative function that belongs to Congress. It has also assisted powerfully in the matter of flooding Wall Street with watered stock. The device of a New Jersey holding company was resorted to primarily in order to circumvent the anti-trust law, and vast issues of watered stock have been the most conspicuous by-product of that device. If we had had in the last 20 years an intelligent law permitting and regulating industrial combinations — instead of this Sherman act, which merely prohibited such combinations — hundreds of millions of dollars of watered stock would never have been issued.

And in 20 years this prohibitory Sherman act has not checked the growth of a solitary industrial combination theretofore formed; nor in a solitary instance has it prevented the formation of a new combination. The Supreme Court decisions in the Oil and Tobacco cases hold out no promise whatever of effectual prohibition of, or control over, industrial combinations. Here and there such a combination, after several years of litigation, may be adjudged illegal and forced to reorganize; but the actual trust problem will not be touched until Congress passes new and intelligent legislation on the subject.


The Deep South Says ‘Never’

This is the fourth installment in our six-part series, “The Long March on Washington.” In part one, “It’s Our Country, Too,” we looked at the limited wartime opportunities for black Americans in the 1940s. In part two, “Black Neighbors, White Neighborhoods,” we covered integration in neighborhoods throughout the 1950s. In part three, “Black Students, White School,” we reported on integration in the classroom.

Segregation in Schools
First grade in the Summerton School for white children. At this point, the school board had made no effort to comply with the Supreme Court’s desegregation decision.

“With all deliberate speed” was how the Supreme Court wanted American schools to integrate their classrooms. But in the years following their Brown v. Board of Education decision, little action had been seen.

By 1957, about 330,000 black children had been admitted to formerly all-white schools, but another 2,475,000 still awaited integration.

The Post looked into the reasons for such little progress in a five-part series, “The Deep South Says Never” by John Bartlow Martin (June-July 1957), which it proudly called “the most exhaustive and penetrating look at the problems of integration yet published in an American periodical.”

The Supreme Court’s decision had outraged many Americans in Southern states with segregated schools. Southern politicians spoke of protests, legal appeals, and outright refusal to comply. But there was yet no organized effort to oppose the federal mandate.

Then, one night in 1953, Robert Patterson, a farmer in Indianola, Mississippi, attended a meeting at his children’s school where he heard officials announce their all-white school would have to admit black students. Patterson was stunned. As he later wrote in a widely distributed letter to “fellow Americans,” “I gathered my children and promised them that they would never have to go to school with children of other races against their will.”

He began seeking like-minded citizens who could build public opposition to the federal order. When he and a handful of associates called a town meeting to address integration, he told Martin, “Everybody of any standing was there.” They agreed to form the Indianola Citizens’ Council, which started a movement that swept across the South to solidify resistance to integration.

At first, the Council aroused little interest among Southern segregationists because the federal government did not try to enforce integration. During this time, Patterson and his friends traveled to other towns, speaking to the towns’ service clubs of the need to organize opposition to integration. Soon, Citizens’ Councils were springing up in adjoining states.

The Councils didn’t content themselves with merely building public support for segregation. They were ready to apply financial influence to silence the voices for integration. As a council member told Martin, “The white population in this county controls the money. … We intend to make it difficult, if not impossible, for any Negro who advocates desegregation to find and hold a job, get credit, or renew a mortgage.”

The Council began applying its influence in June 1955, when black residents in five Mississippi cities petitioned local school boards to admit their children to all-white schools.

Roy Wilkins
Roy Wilkins, executive secretary of the NAACP, pities white children in segregated schools. With Wilkins is J.P. Coleman, governor of Mississippi.

In Yazoo City, Mississippi, for instance, the Citizens’ Council published the names and addresses of all petitioners in the local paper. Roy Wilkins of the NAACP told Martin, “There were about fifty-three signers originally, and when [the Council] got through, only two signatures remained on it. One of them is living by helping his wife sell mail-order cosmetics—couldn’t get any work in town. One man had been a plumber for twenty years in Yazoo City, but he lost his business as soon as his name was in the paper.

“Wholesalers refused to supply a Negro grocer who had signed the petition, and a banker told him to come and get his money. He took his name off the petition, but it did no good. He left town.”

News that the petitions in all five cities were withdrawn encouraged the growth of segregationist groups in other states. By the end of 1955, one survey showed at least 568 local pro-segregation organizations in the South, claiming a membership of 208,000.

Council members were motivated by several reasons, though none admitted racism was among them. Some believed segregation was necessary to keep black men away from white women. (Patterson wrote protectively of “the loveliest and the purest of God’s creatures, the nearest thing to an angelic being that treads this terrestrial ball is a well-bred, cultured Southern white woman or her blue-eyed, golden-haired little girl.”)

Not all southerners supported these extremists. One Southerner told Martin he thought Council members were unintelligent and obsessed with interracial sex. “I once asked a council member, ‘What is your organization’s program?’

“He said, ‘To make people aware of the problem.’

“‘Do you think there is anybody south of the Mason-Dixon’s line that isn’t aware of it?’


“‘Then what do you do at your meetings?’

“‘Well, we discuss the situation, discuss segregation.’

“‘It must get a little boring.’

“‘Well, yes, but we always get around to miscegenation.’”

Council members also felt they were fighting communism by opposing civil rights for blacks. Integration, they said, was a communist plot to stir up resentment in black Americans, who would rise up to destroy society. Patterson wrote, “If every southerner who feels as I do, and they are in the vast majority, will make this vow (to prevent integration), we will defeat this communistic disease that is being thrust upon us.”

What Patterson couldn’t have known was that the revival of aggressive bigotry in the South was helping to ignite a force in the black community. Black Americans were no longer waiting for the federal government to secure their civil rights, but had started taking action themselves.

Coming Next: The Rise of the Black Activists

Playing God with Human DNA


On Thursday, June 13, 2013, the Supreme Court unanimously ruled that human genes isolated from the body can’t be patented.

Such a case would have been unthinkable 60 years ago, when medical researchers were just starting to make progress in molecular biology: the study of how genes control the actions of living cells.

Scientists already knew that chromosomes—the long strands of a complex molecule called DNA—control the function of cells. But they still didn’t understand how DNA holds the information required to assemble and operate every human cell. If they could gain this information—“the molecular facts of life” as a Post author expressed—they might be able to increase, alter, or stop certain activities within cells. Doctors could halt cancers, grow new nerve tissues, or repair cells damaged by disease.

A major breakthrough came on April 25, 1953, when British scientists James Watson and Francis Crick published the results of their DNA research. In the article, they presented their theory on how DNA was constructed and how it worked. [For the Post’s explanation of their work, see “The Messages of Life,” by James Bonner, April 15, 1961.]

Building on the X-ray imaging data of other researchers, Watson and Crick hypothesized that DNA has a double-helix structure. Crudely put, it is shaped like a spiral ladder. Each rung is composed of a link between two nucleotide molecules. All genetic information is encoded within the long sequence of these molecule pairs.

The double-helix model earned international recognition for Watson, Crick, and colleague Maurice Wilkins. Nine years later, it earned them a shared Nobel Prize.

With this new understanding of how DNA works, researchers began searching for ways in which they could manipulate the DNA transfer of genetic material to assist in human reproduction, halt inherited diseases, and regenerate healthy tissue.

However the great potential of genetic medicine brought moral complexities, leading medicine into areas where there are no clear ethical boundaries. For example, prenatal screening might tell parents that their fetus is likely to develop a severe, inherited disease. Should they gamble on a procedure to alter the child’s genetic makeup, or wait to see what develops, knowing that it might then be too late to alter the situation?

Or, a young woman with a history of breast cancer takes a genetic test that reveals she has the breast cancer genes BRCA1 or BRCA2. Should she and her physician consider a radical mastectomy on the potential risk? Should her insurance carrier be involved in the decision?

As early as 1965, the Post was reporting the concerns that genetic manipulation might put too much power into the hands of doctors. In an article ambitiously titled “The Secret of Life,” Journalist Max Gunther asked, “if it becomes possible to control human heredity, who will decide which traits should be inherited by whom? On strictly moral grounds, the thought of man having this power has caused a certain amount of uneasiness among both scientists and laymen.”

Gunther quoted a researcher at the Rockefeller Institute, who told him, “You can see why people might be worried. If we ever reach a stage where we can exert a highly detailed kind of control over life and heredity, we’ll be in somewhat the same position we were in when we harnessed atomic energy.”

Today, in addition to ethical questions, legal and financial concerns are further complicating genetic medicine. Researchers in the past decade have taken information, which was developed by the nonprofit Human Genome Project, and identified which genes are closely linked to diseases. Their sponsoring companies have patented this information—the DNA sequencing that makes up the breast cancer genes, for example. Consequently, other researchers working in this area are prohibited from studying or developing this information.

As the Supreme Court heard from a gene-patent company that wanted to protect the investment it made to find the breast cancer gene, it also heard from doctors, researchers, and patients who want this information made public.

It took the combined genius of Watson, Crick, and others to understand how DNA was structured and how it operated. It will take an even greater work of genius to understand how to balance the medical, financial, legal, political, and ethical applications of what was discovered 60 years ago.

Judging the Supreme Court

Few people would argue that we need a Supreme Court—a panel of knowledgeable judges who (among other things) determine whether laws are consistent with the Constitution. There’s less agreement with the way the Supreme Court is structured and how it operates. Americans have long been troubled by the fact that we give a small group of judges the power to overrule the elected branches of government. And we give them lifetime appointments, which protect them from recall by voters. A justice can remain on the bench as long as he meets the one requirement set by the Constitution: “Good Behavior.”

To date, 112 men and women have been appointed to the Court and only one has been impeached (Salmon Chase in 1804, and he was acquitted by the Senate). The chances that justices could be removed are extremely small.  No matter how unpopular, or biased, or misdirected their decisions might be, they are free from the wrath of voters.

Essentially, we ask the Supreme Court to protect representative government by operating outside of it.

One hundred years ago, a Post writer questioned the privileges and powers we grant the Court justices. The author, Melville Post, claimed the Founding Fathers had intended—

to create a government in which the people had the last word. They created three independent departments, all equal in dignity … but all subject to the will of the people as the ultimate sovereign.

They were not so much concerned about the judicial department. It could neither tax the citizen nor quarter soldiers in his house, and besides that no one had ever heard of a judicial despotism … Nevertheless, they confined the judicial department to its own affairs, as they had done with the others.

The original idea of the Court’s work, according to Post, did not include reviewing legislative acts. No court in the world had ever had such power. The Court had slowly gained power until the present day, when—

nine men, holding their offices for life, are able to annul the will of nearly a hundred millions of people, the president of the United States, and both houses of Congress.

In 1916, a judge of Ohio’s Supreme Court wrote in the Post that, regardless of what the Founders had intended for the Supreme Court, what we now had was—

a political body passing on political questions—not partisan ones—great questions of public policy affecting not only national interests but state and even municipal interests, all the while exercising over them the right to veto, the right to supervise, the right to modify, the right to destroy.

While some have criticized the Court, others have strongly defended it. Some have even gone so far as asserting that the Supreme Court is above reproach. They regard any criticism as an attack on its independence. Responding to this attitude, Indiana senator Albert Beveridge, writing for the Post in 1923, quoted this refreshing opinion from turn-of-the-century David Josiah Brewer:

“It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism.

The time is past in the history of the world when any living man or body of men can be set on a  pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still water is stagnation and death.”

"Justice Black, on the court since 1937, has long championed underdog causes."

Behind the criticism of power without accountability, was the fear of partisanship. The Court justices, free from restraint and immune to recall, would become political activists and make decisions that promoted their own views. This is what Merlo J. Pusey feared had already happened in 1962. In his “Struggle Inside The Supreme Court,” he said the judges were “gravely divided” and nearing a “showdown.”

The “activist” bloc on one side of the doctrinal gulf that divides the court is led by a cool and affable Alabama lawyer, Justice Hugo L. Black.

"Guaranties of liberty must be interpreted in the light of the Constitution as a whole." Justice Felix Frankfurter

Black and his allies have tried to write into the court’s decisions their belief that the guaranties of freedom of speech, press and religion, as contained in the Bill of Rights, are “absolutes,” subject to no qualification whatsoever.

The Black doctrine has been resisted by a more conservative group of Justices who for want of a better word are often called “traditionalists.”

These men highly esteem the guaranties of liberty in the Bill of Rights but insist that those guaranties be interpreted in the light of the Constitution as a whole.

The most effective spokesman for this group … was Justice Felix Frankfurter [who] led a majority in rejecting the concept of “absolute rights.”

Earlier that year, the “activitists” had produced the decision banning state-sanctioned prayer in public schools. Pusey believed this marked the beginning of vast changes that would sweep across the country.

The activist view of Freedom of Speech, Pusey wrote, would protect groups that advocated the violent overthrow of the government. It would destroy public order “because irresponsible people would presumably be free to indulge in perjury, obscenity, … false advertising, and even solicitation of crime and subversion.”

It is tempting to predict new Court rulings will profoundly change the country. But, just as in 1962, they probably won’t produce the revolutionary changes that some pundits fear. The Court may operate beyond the influence of American voters, but this allows it to be more consistent than the electorate.

Atheists v. Evangelists: The School Prayer Decision of 1962

How much has America changed in the past 50 years? Imagine kids in American public schools now starting each day with a prayer.

School prayer was a standard part of schooling until June 1962. In that month, the Supreme Court, in its Engel v. Vitale decision, ruled that public-school praying was unconstitutional.

It was just as Billy Graham had feared. In February, he had warned Post readers—

The issue of prayers in public schools is now before the Supreme Court and, if the Court decrees negatively, another victory will be gained by those forces which conspire to remove faith in God from the public conscience.

American democracy rests on the belief in the reality of God and His respect for the individual. Ours is a freedom under law. But it is also a freedom that will evaporate if the religious foundations upon which it has been built are taken away.

As he wrote in “Our Right To Require Belief,” the elimination of school prayer was part of—

Billy Graham.
Billy Graham on the cover of the Post.

a movement gathering momentum in America to take the traditional concept of God out of our national life. If this movement succeeds, IN GOD WE TRUST will be taken from our coins, the Bible will be removed from our courtrooms, future Presidents will be sworn into office with their hand on a copy of the Constitution instead of the Bible, and chaplains will be removed from the Armed Forces.

Graham believed the United States had grown and prospered because of an alliance, rather than a separation, of church and state. The leaders of the new country intended the United States to be essentially Christian.

The Great Seal of the United States is our complete acknowledgment that we are the people of His pasture and the sheep of His hand. Our national emblems testify to the fact that we are a people “under God.”

The Preamble of our national Constitution speaks of “the blessings of liberty.” The men at Philadelphia could never have written that document if they had not had faith in God.

Reverend Graham was far from alone in his belief. A great number of Americans had grown up with the idea that Christian faith was a necessary part of the country’s government. In “Our Right Not To Believe,” which appeared in the Post a week before Graham’s article, Robert Bendiner showed how personal faith had become a requirement for civic participation. Eight states required office holders to believe not only in a Supreme Being but also a “future state of rewards and punishments.”

Eleven states call for official oaths ending with the phrase “So help me God,” and congressional statues require the same words for Federal jobholders—except for the President of the United States. His oath of office is prescribed in Article II of the Constitution itself, the only one so imposed, and in it, significantly, there is no reference to a Supreme Being.

Still other states have so-called blasphemy laws, forbidding the public casting of doubt on the fundamentals of religious belief, though such laws are very rarely invoked.

With state governments so invested in religious beliefs, it’s not surprising they made prayer a part of the daily schedule. How could a student hope to hold office or appear in court without a spiritual life?

In a number of states atheists may not serve as either witnesses or jurors. As the Maryland law runs, a witness or juror must believe that he “will be held morally accountable for his acts, and be rewarded or punished therefore, either in this world or in the world to come.” Contradictory testimony is nevertheless as common in Maryland as it is elsewhere, the threat of consequences in the next world notwithstanding.

Unlike Graham, Bendiner believed the Founding Father did not envision a faith-based nation.

The fundamental nature of the United States was not religious but rationalist.

The prevailing spirit among them was that of deism.  Forerunners of modern Unitarianism, the deists were selective concerning the Bible—insofar as they accepted it at all—and they believed a Supreme Being to be vaguely inherent in Nature but very different from the personal God of the Scriptures.

Men had to determine for themselves a basis for rational morality, and they had little use for theology or the ceremonials of organized religion.

Jefferson, he stated, was certainly not a church-going man and Franklin, as characterized by one noted biographer, was a “pagan skeptic.” And then there was Thomas Paine, the militant atheist, who no one would ever accuse of being a ‘man of faith.’

Yet faith was essential in modern American government, Graham asserted. Our ‘right to require belief’ didn’t apply to students. We needed to require belief in lawmakers so they would be guided by principles higher than self-interest. Such an idea, Bendiner argued, would be meaningless ultimately.

In the end, if the state can demand officially—or public opinion unofficially— that office-holders acknowledge a conventional religious belief, then state and public are entitled to examine credentials… to demand that a candidate’s conviction be genuine, not just a matter of political convenience. And there’s the rub. For who is to be entrusted with the inquisition required to winnow out the real from the synthetic in religious conviction?

Happily the thought is preposterous as well as illegal.

But it’s easy to talk about the beliefs that shouldn’t be imposed. People need some belief to face the future. Can we preserve our freedoms and our tradition of reason and law guided only by a desire for life, liberty and the pursuit of happiness? As Graham asks,

What good does it do to become the wealthiest nation in the world if we are spiritually bankrupt? What would we have to offer the world?

We need a vision, he argues: faith in a greater goal, something to keep us moving forward when the way is uncertain and the old solutions no longer seem to work.

Faith… is not the way a coward flees from reality. It is the projection of reason beyond the limits of present knowledge.

Our beliefs make us what we are.

POST script:

This is the prayer that sparked the Supreme Court challenge:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

Had the Supreme Court decided that school prayer was consistent with the Constitution, the United States would be a different country today. But then, the country would have had a different Constitution.

The Inevitable Politics of the High Court

Last week, Justice John Paul Stevens announced his resignation from the Supreme Court after 34 years. Almost immediately, the media fired up the great calliope of political journalism. Reporters breathlessly debated who President Obama would nominate. How would it shake up the Court? How would the Republicans respond? Which political faction would benefit?

The feverish excitement isn’t just the product of a sudden, national fascination with Constitutional law. New judges are news because they become a profound, lifelong influence on America’s legal landscape. They’re news because they are political — whether or not that is their intention.

This was not the original idea. Thomas Jefferson and John Adams had both hoped that every branch of the government would operate without the maneuvering and deal-making of political factions. It was clear by the 1800s that this was unrealistic in Congress and the White House.

The Supreme Court avoided politics a little longer — probably because it was so insignificant. It had no budget, no building, and no significant work until Chief Justice John Marshall wrote his Marbury v Madison decision. The Court, Marshall said, was the foremost interpreter of the Constitution. If it thought a law was unconstitutional, it could overturn it, despite the vote of the House and Senate and the President’s signature.

This was unexpected political power, and Presidents quickly realized how they could use it to their advantage. By appointing a judge with similar opinions, the President could ensure his policies were pursued in the high court for the lifetime of the judge.

The nomination process has basically expanded the playing field for Washington’s endless political wrestling match. In many cases, appointing a Supreme Court justice is the continuation of politics by other means.

Like all political wisdom, though, this is at least 20% wrong. Throughout history, Presidents have chosen fair-minded, independent judges who offered wisdom, insight, and a keen insight into the Constitution. But they have also nominated judges who were political ciphers and ideological sock puppets.

Sometimes, though, Supreme Court justices can move off in an unexpected direction. Justice Felix Frankfurter, appointed by liberal President Roosevelt, became the court’s most prominent conservative voice. President Eisenhower appointed Earl Warren as Chief Justice in 1953, confident that Warren would exert a steady, conservative influence on the Court. Instead, Warren moved to the left, siding mostly with liberal opinion, and causing Eisenhower to refer to Warren’s nomination as “the biggest damned-fool mistake I ever made.”

Sometimes judges act like politicians, and sometimes they act like fair-minded, objective jurists. The uncertainty makes politically focused Americans extremely anxious.

For example Merlo J. Pusey, in a 1963 Post article, saw signs of domestic turmoil gathering like thunderheads over the court. The reasons — for him, at least — were clear.

“During its last session the court handed down two of the most bitterly controversial opinions in its long history — one against a prayer in the public schools and the other for reapportionment of gerrymandered legislatures. Both these cases are new landmarks in the law. Yet, like others before them, they represent no more than battles in the long war within the court itself—the war between the ‘activists’ and the ‘traditionalists.’

“This struggle has already deeply affected the political climate of the United Slates and the rights that all men and women cherish.”

Interestingly, the author thought the reapportionment decision would have a greater impact on the country. The “school prayer” decision, though, would remain a politically hot issue for decades.

“The case was brought by Steven I. Engel and other parents of children [who] objected to a nondenominational prayer recommended for use in the schools by the State Board of Regents, the highest educational authority in New York, and officially adopted by the local board. The prayer consisted of only 22 words drawn largely from state constitutions:

“‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.’

“The prayer was repeated at the beginning of each school day, along with the Pledge of Allegiance to the Flag. Those who did not wish to participate could remain silent or be excused from the room or come late in order to miss the prayer. All the judges agreed that there was no compulsion on any pupil to join in the prayer, but that did not save it in the eyes of the court.”

The court had shown its power in the 1950s, particularly in Brown v Board of Education, which struck down the practice of operating racially divided schools that were “separate but equal.” Now, it seemed, the Court was expelling God from school.

But real trouble was ahead, according to Pusey. Justice Frankfurter had retired and the court was now dominated by “activists” and “free-speech absolutists.” Pusey dreaded the prospect of the First Amendment running rampant through the streets.

“If the absolutist doctrine in its more extreme forms should be established as the law of the land, the consequences would be almost revolutionary.”

The statement is far less scary once you see all the qualifiers: if there is a concept of absolutist doctrine, if it might exist in “its most extreme forms,” and if it is made the law of the land, the results would be revolutionary, almost.

“It would mean, for example, that the Government could no longer enforce the Smith Act, under which numerous Communists have been convicted of teaching and advocating the overthrow of government by force and violence.

“It would also sharply curtail the investigative powers of Congress. If the doctrine were literally applied in its extreme forms, the general maintenance of public order would be severely handicapped because irresponsible people would presumably be free to indulge in perjury, obscenity, misrepresentation, false advertising and even solicitation of crime and subversion.”

It’s reporting like this that make the nominating process such a spectacle. Any and every fear can be entertained.

Overall, the article is suprisingly thoughtful and balanced. Pusey gives a thoughtful assessment of Hugo Black, but he keeps returning to his theoretical revolution, which was as fearful as it was imaginative.

If the court of 2010 is in the same awful straits as Pusey saw in 1963, we would all spend our worrying resources on another, more realistic problem.