The Supreme Court and State Civil Liberties

Date01 December 1961
Published date01 December 1961
Subject MatterArticles
University of Massachusetts
OF THE MAJOR THEMES in recent writings about the United
~ States Supreme Court has been its treatment of civil liberties cases.
During Chief Justice Vinson’s tenure much comment, pro and con,
was elicited by the Court’s comparatively &dquo;restraintist&dquo; approach to such cases.
And in the years of Chief Justice Warren, as the Court has become more &dquo;acti-
vist,&dquo; the same writers have labored the same themes, but with the pros and the
cons reversed. The attitudes and voting records of individual justices have been
closely scanned to see whether they &dquo;measured up&dquo; to the standards of the investi-
gator ; &dquo;box scores&dquo; have been compiled purporting to show such attitudes;’ partic-
ular justices have had their attackers and defenders -
and more than one sitting
judge has doffed his judicial halo long enough to defend himself (sometimes more
effectively than his admirers).
The present writer has been among those who have attacked the Vinson
court and defended the Warren court;2 and with the judges and other writers
he has been accused of fostering the same approach to civil liberties which did
the Court so much harm when it was used in the economic sphere before 1937.~
But such charges have been often denied, and the modern-day &dquo;activists&dquo; are
seemingly fairly well convinced that they have built up a rationale to distinguish
the two types of cases which is convincing (at least to themselves): they no longer
have guilt feelings about their own inconsistency on this score.4
There is, however, another question with which the defenders of activism
in civil liberties have not dealt effectively as yet. This is the question involving the
Fourteenth Amendment. After all, say the critics, even if you prove that the Bill
of Rights should be industriously applied by the Court, the fact remains that the
first eight amendments apply only to federal action; and while the due process
clause of the Fourteenth Amendment has been used to extend parts of the Bill of
Rights to the states, this process is really illegitimate because the clause does not
logically bear such interpretation and because this amounts to the use of the now-
discredited substantive interpretation of the clause. So another inconsistency is
charged against the libertarians. The present article is an attempt to investigate
such criticism and lay the groundwork (if possible) for a defense. Put simply,
Perhaps the best known of these are the works of C. H. Pritchett: The Roosevelt Court (New
York: Macmillan, 1948), pp. 32-45, 131, 141, 162, 242-47, 250-57; Civil Liberties and the
Vinson Court (Chicago: University of Chicago Press, 1954), pp. 177-85 and passim; The
Political Offender and the Warren Court (Boston: Boston University Press, 1958). For an
attempt at quantitative analysis leading to precise prediction, see Fred Kort, "Predicting
Supreme Court Decisions Mathematically: A Quantitative Analysis of the ’Right to Counsel’
Cases," American Political Science Review, LI (March 1957), 1-12.
In "The Case for Judicial Protection of Civil Liberties," Journal of Politics, XVII (February 1955),
100-112; "Group Libel and Free Speech," 39 Minn. L. Rev. 167-84 (January 1955); "Civil
Liberties and the American Supreme Court," Political Studies, VI (June 1958), 134-46.
Wallace Mendelson, "A Reply to Professor Beth," Journal of Politics, XVII (May 1955), 286-90.
See, as examples, Eugene V. Rostow, "The Democratic Character of Judicial Review," 66 Harv.
L. Rev. 193 (1952); Charles L. Black, Jr., "Old and New Ways in Judicial Review," Bowdoin
College Bulletin, No. 328 (March 1958); Charles L. Black, Jr., The People and the Court:
Judicial Review in a Democracy (New York: Macmillan, 1960).

the question is: can the Supreme Court justify the use of the Fourteenth Amend-
ment to apply the Bill of Rights as against state action? (The assumption through-
out is that the Court can do so as against federal action: those who question this
are invited to look elsewhere for its justification.)
This question is important because of the known fact that the threat to civil
liberty has, in America, most often been a state threat. The reasons for this will
be further investigated later in this paper, but the fact can hardly be gainsaid.
After all, it was Mr. Justice Holmes who wrote (in his usual quotable vein), &dquo;I
do not think the United States would come to an end if we lost our power to
declare an act of Congress void. I do not think the Union would be imperiled
if we could not make that declaration as to the laws of the several states.&dquo; It is
probable that Holmes had in mind the preservation of the federal system rather
than the protection of civil liberties, but his statement is equally applicable to the
latter. If civil liberties can benefit from judicial protection, that protection will
be of most importance where state infringements are concerned. The very multi-
plicity of state and local governmental units would account for this; but the facts
of their political lives redouble the effects. As Bernard Schwartz has pointed out,
&dquo;from the point of view of the average American citizen, the danger of abridge-
ment of his civil rights arises largely on the level of State or local government.&dquo; 5
There have been several book-length studies of the Fourteenth Amendment
published in the last dozen years, in addition to many shorter articles. The recent
interest in the Amendment has been stimulated in general by the Court’s activi-
ties in the civil liberties field, but it was probably touched off by Justice Black’s
somewhat rash conclusion in his Adamson dissent that its framers intended to
include the whole Bill of Rights in the first section of the Amendment.6 Fairman
and Morrison have written at length to disprove Black’s thesis; they have at least
succeeded in indicating that the Justice erred in basing his conclusions on insuffi-
cient scholarly study if not in the conclusion itself.7 Later, James has published
a thorough study of the legislative history of the Amendment,&dquo; and tenBroek
has attempted to prove that the theories of the pre-Civil War abolitionists were
embodied in the Amendment.9 If these efforts actually prove anything, it is that,
in common with much of the Constitution, the Fourteenth Amendment is dis-
tinguished by its ambiguity and by the lack of adequate historical records -
that, as a result, its precise meaning to its framers is unknown.10 Whether the
Bernard Schwartz, American Constitutional Law (London: Cambridge University Press, 1955),
p. 217.
Adamson v. California, 332 U. S. 46, 89 (1947).
’ Charles Fairman and Stanley Morrison, "Does the Fourteenth Amendment Incorporate the Bill
of Rights," 2 Stan. L. Rev. 5, 140 (December 1949).
Joseph B. James, The Framing of the Fourteenth Amendment (Urbana: University of Illinois
Press, 1956).
Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment (Berkeley: University
of California Press, 1951).
This statement is made despite Crosskey’s belief that the meaning of the Amendment is "very
simple and very obvious." W. W. Crosskey, Politics and the Constitution in the History of
the United States. (Chicago: University of Chicago Press, 1953), II, 1083, footnote.

ideas of the framers are even relevant in constitutional interpretation is questioned
by some commentator.&dquo; Be that as it may, the present situation reveals a distinct
lack of consensus on the &dquo;true&dquo; meaning of the Amendment. It is worthwhile,
nevertheless, to review briefly some of the more important views as to its mean-
ing ; their agreements seem more significant than their differences.
The broadest view of the coverage of the Amendment has been taken by
Joseph B. James and Jacobus tenBroek. James has written the most complete
blow-by-blow account of the legislative process by which it was adopted, while
tenBroek has investigated the theories of the abolitionist movement (assuming
the Amendment to be the culmination of that movement). Both writers conclude
that while the Amendment may not be a specific application of the Bill of Rights
to the states, it is in fact something even broader: the natural rights of man
whether or not contained in written constitutions. James writes that &dquo;it is not
too much to say that the existence of a federal Bill of Rights in written form
was entirely unnecessary for the purposes of the Fourteenth Amendment.&dquo; 12
And tenBroek concludes, &dquo;the rights sought to be protected were mens’ natural
rights, some of which are mentioned in the first eight amendments and some of
which are not.&dquo; 13 Both writers refuse to view the three major clauses of the
amendment as separate and exclusive; they are instead &dquo;mostly but not entirely
duplicatory.&dquo; 14
A second theory is that the Amendment was intended to apply the federal
Constitutions’ Bill of Rights to the states. Despite certain ambiguities this seems
to be what the first Justice Harlan had in mind in his dissenting opinion in
Hurtado v. Cali f ornia, in which he said that the Fourteenth Amendment &dquo;evinces
a purpose to impose upon the states the same restrictions, in respect of proceedings
involving life, liberty and property, which had been imposed upon the general
government.&dquo; 15 While this seems to depend on the due process clause...

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