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Welcome back!

We've been talking about various tools and techniques for going

beyond the written Constitution while remaining faithful to it.

We've talked about the idea of reading the Constitution,

not clause by clause, but as a whole and seeing

larger principles in it, like separation of powers, checks and

balances, the rule of law, limited government, federalism, the idea

that no man should be a judge in his own case.

So that's one technique.

We've talked about the technique of, of paying

attention to the particular historical processes by which the

Constitution was in fact enacted and later amended,

and how those processes gave rise to certain principles.

Like a broad principle of free speech and

majority rule, at the founding, a broad principle

of republican governments during the reconstruction.

We've talked about how careful constitutional interpreters should pay

attention to the lived experiences of ordinary Americans, who

in the process of living their lives, embody all

sorts of unenumerated rights that are worthy of constitutional protection.

Because the text says that there may indeed be unwritten, unenumerated rights.

It doesn't quite tell us how to find

them, but says that they shouldn't be disregarded, disparaged.

and, and one way to, to find them is to pay attention

to how ordinary people live their lives, and embody them, a lived constitution.

In the course of examining those tools and techniques,

we've made passing reference to case law, to judicial opinions.

But we haven't

focused on judicial opinions front and center.

And we're going to do that in today's lecture and the next one.

Because of course case law, judicial opinions, form one very important

prism through which we read the, the, the written Constitution.

they, we are going beyond and outside the

written Constitution when we look at the cases.

The cases,

strictly speaking, aren't the words of the terse text of the document, this, this

handy-dandy pocket copy. They, they're outside of it, the,

the, these cases, but, but, in principle they aim to, to clarify and illuminate it.

And the $64,000 question is, do they clarify and illuminate,

or do they in fact distort these iconic and important cases?

We're going to pay particular attention to the cases of the Warren Court.

You've heard about the Warren Court.

And we're going to talk about it in this lecture and the next one.

I just, and, by the way, this is Earl Warren.

He's the person who gives his name to the Warren Court.

We're going to talk more about him at the end of the next lecture.

But just to anticipate he's the Chief Justice of the United States from

1953 to 1969.

His tenure on the, on the court as its

Chief Justice begins with a series of deliberations and

decision in the landmark segregation case of Brown vs

Board of Education, which we're going to talk about.

And it proceeds through the 1950s, and the 1960s with

particularly significant cases extending the reach of the Bill of Rights,

applying the Bill of Rights against the states,

and very broadly construing the Bill of Rights.

And also revolutionizing a judicially protected right to vote in America.

So these are among the things that the Warren Court did.

It's customary, to refer to the Supreme Court

with reference to the name of its chief justice.

We talked about the Marshall Court, when John Marshall

was chief justice.

Today, we are living under the Roberts Court, John Roberts is chief justice.

But by acclamation, I think Earl Warren Stands up there

in the pantheon along with John Marshall, very early in the

nation's experience, as, the two of them, are the, really, the,

the two most notable and significant chief justices in American history.

And the question we're going to ask is, did the Warren Court revolution,

because that's what both his friends and his critics, how they described this era,

did the Warren Court revolution really do justice to the terse text?

Did it actually, was it faithful to the text?

Critics said no. Defenders said sometimes.

Well, sometimes they said no.

But they said, well, who cares about the text?

I'm going to offer a different account in which actually the Warren Court

decisions will be measured against the terse text.

And in fact the Warren Court decisions hold

up pretty well, not perfectly, but pretty well.

We're going to focus on 6 areas in particular that

really I think define the legacy of the Warren Court.

Today we'll talk about the segregation decisions of Brown versus Board

of Education and its companion case,

Bowling against Sharpe, which involved segregation

in D.C. schools.

Not state schools like Topeka, Kansas but, but federal schools.

So we'll tell you about the segregation decisions.

We'll talk about the decision by the Supreme Court to apply the

Bill of Rights, to incorporate it, that's the phrase, against the states.

'Because the Bill of Rights originally was

designed to protect against the federal government.

But in the Warren Court virtually all its provisions came to apply against

state and local governments.

And we'll also talk about freedom of expression, in particular the landmark

Warren Court decision of, involving the State of Alabama, a

case called New York Times versus Sullivan, involving censorship in Alabama

and the Supreme Court's vigorous defense of a free expression, robust, uninhibited,

wide open free expression.

That's what we're going to talk about today.

segregation, applying the Bill of Rights against the states, and free expression.

In our companion lecture, the next lecture, I'll finish

the story of the Warren Court um; by talking about,

its landmark decisions involving prayer and the public schools, the religion

clauses of the Constitution, involving the so-called exclusionary

rule, allowing criminal defendants to go free if the

evidence against them was acquired in a constitutionally improper fashion.

I'm actually going to be very critical of

the exclusionary rule and the more important expansion

of it in a famous landmark case called

Mapp versus Ohio, extending the exclusionary rule against states.

And so I'm going to be critical of that

one, then largely supportive of the other Warren Court decisions.

And we'll also talk

in the next session about the Warren Court's revolutionary case law

on the right to vote, affirming an idea of one person,

one vote ending malapportionment, and also enforcing a very vigorous right

to vote in general against people who were being denied that right.

So that's the Warren Court legacy.

And at the end, I'll try to put the pieces

together and think about the Warren Court as a whole.

Let's start with Brown

versus Board of Education, which is really where Earl Warren starts.

He joins the court in 1953, and the

Brown case was already under consideration by the Court.

And the Court had decided to hear a new set of oral arguments.

And then its Chief Justice died and Warren comes on board.

He's appointed by President Dwight Eisenhower.

He's a Republican, he had run for the Vice Presidency of the United States,

actually, alongside Thomas Dewey.

If Dewey had defeated Truman in 1948, Earl

Warren would've been Vice President of the United States.

Former governor and attorney general of

California, kind of a, a progressive Republican.

Most of the Court is Democrat appointed because FDR

has put a lot of people on the Court.

And that's the Court that gives you Brown

versus the Board of Education and the companion case,

Bolling against Sharpe, in May of 1954, mid May 1954,

one of the most iconic, momentous moments in American judicial history.

The segregation cases are announced.

Earl Warren writes for a unanimous court, saying segregation must end.

Jim Crow is unconstitutional, at least in education.

This in the sphere of education,

separate is inherently unequal.

The government is not permitted to say, black kids

over here, white kids over there, in different schools.

That's what the Brown case said.

States couldn't do that, nor localities like Topeka,

Kansas, cities, nor could the federal government do that.

And the question is, where did that come from?

And my answer is, it comes from the Constitution.

This is case law faithful

to the Constitution.

The Constitution even at the founding, said no titles of nobility.

Neither the federal or the state government can have titles of nobility.

Now what are titles of nobility?

They're, in effect, saying some people are born

lords, and other people are born serfs, or commoners.

And there was a clause in the original Constitution

saying states can't have titles of nobility, Article 1,

Section, 10, another clause saying the federal government

can't have titles of nobility, Article 1, Section 9.

If you take that at face value, I think the Jim Crow system, a system of massive

apartheid in, in America really did create kind

of a system of light-skinned lords and dark-skinned serfs.

Government trying to, to separate, to create

different classes, castes of, of Americans based on

whether they were born light-skinned or dark-skinned,

that kind of hereditary, intergenerationally entrenched hierarchy.

So even before the Civil War came along,

you could have read the Constitution to say government

shouldn't be in the business of, of separating

out and creating castes and hereditary classes of citizenship.

Now alas, that reading didn't prevail in the antebellum period.

And basically, it's because slavery overshadowed everything.

Because the constitution was pro-slavery as well, in ways that we've talked about.

Now, strictly speaking, you could have said, oh well, slavery is different.

We're talking here about the status of free blacks.

And free blacks are different from slaves and they

should benefit from the anti title of nobility principle.

But because slavery overhang-, overhung everything that

reading didn't prevail.

In-, Instead, basically the, the, the realists, the, the the the non-

idealistic hard headed interpretation of the Constitution was, actually it doesn't

quite mean what it seems to say on race because we

all understand that the, the system is designed to prop up slavery.

And racial hierarchy is part of the slave system.

Okay, if that's the honest defense of slavery, I mean of of

of, legal inequality and it's blunt, it's honest, but if that's the defense,

that world ended with the Civil War and the Amendments that came afterwards.

The 13th Amendment abolishes slavery

everywhere, immediately, automatically without compensation.

It says slavery and involuntary servitude can't exist in America.

And race discrimination is kind of a relic, a badge of slavery.

But put the Thirteenth Amendment to one side.

The key amendment, the easy obvious

amendment supporting Brown is the Fourteenth Amendment.

And the Fourteenth Amendment says two things.

It says no state shall deny people equal, any person equal protection of the laws.

And also says it, states, no state shall abridge

the privileges or immunities of citizens of the United States.

And one of those privileges might be a privilege of racial equality.

So, it says no state

can deny equal protection. And segregation is unequal.

And it says that states can't abridge the privileges or immunities of citizens.

And racial equality is such a privilege.

You might say okay, maybe that's Brown. But what about Bolling against Sharpe?

That's DC.

Professor, you're saying no state shall But the first sentence of

the Fourteenth Amendment, even before we get to the no state shall,

doesn't say anything about states.

It reads much more sweepingly and here's what it says.

It says, the first sentence of the Fourteenth Amendment, adopted

after the Civil War, all persons born or naturalized in the

United States and subject to the jurisdiction thereof are citizens

of the United States and of the state wherein they reside.

Everyone born in the United States

is a citizen. No ifs, ands, or buts.

They're citizens of the United States.

And what it means to be a citizen is to, and it doesn't say, no state shall.

They are citizens of the United States and of the state.

This, this is a principle, this citizenship principle applies against

both sets of government and is a principle of equal citizenship.

It means we are born equal here in America.

It's a textualization of the Declaration of Independence

idea as interpreted by Lincoln in the Gettysburg Address,

that we're all created equal, we're all born equal.

Equal birth status.

Some of us, we're not born lords and serfs.

So, a reaffirmation of that, original revolutionary idea, that, that,

that basically was compromised when it came to race and slavery.

But now, it's reaffirming it in the context of race.

We're all born equally.

We're not born lords and servants.

We're born equally, whether we're born black or white.

This is very much about the race issue after the Civil War.

We're born equally, in fact, whether we're born male or female, or Jew or gentile.

I would say gay or straight, we're born equal.

That's the idea.

That applies against state governments and the federal government.

It's an easy and obvious argument for the

results in both Brown and Bolling, because race segregation

simply wasn't equal. Counter-arguments.

Oh, but the framers of the Fourteenth Amendment really didn't mean that.

They actually believed in segregation.

And in fact the framers of the Fourteenth

Amendment allowed segregation, racial segregation in the capital galleries.

That's an historical argument of a certain sort.

Let's take it seriously.

We're going beyond the written Constitution,

going, history is outside of the text

but let's take seriously what the history actually shows,

Because I think actually it shows that Brown is right.

First, a lot of the people who gave you the Fourteenth amendment though,

though they would call themselves, the

radical Republicans, they were re, racial integrationists.

They believed actually in full racial equality.

Now, they weren't all, they weren't the only folks around.

But they were the, the, heart and soul of the Republican party.

Let me tell you about two of' them.

Thaddeus Stevens.

Some of you may have seen the movie Lincoln, and you

know a little bit about Thaddeus Stevens played by Tommy Lee Jones.

He is the political leader of the Republicans in the House.

He dies within a month of the Fourteenth Amendment's adoption, and here's

actually, and he's buried in an integrated graveyard in In Pennsylvania.

Here's his tombstone.

I repose in this quiet and secluded spot, not from any natural preference

for solitude but finding other cemetaries limited as to race by charter rules.

I've chosen this, that I might illustrate in my

death the principles which I advocated through a long life.

Equality of man before his creator. He believes in integration.

He forms, at his death,

an interracial orphanage.

Charles Sumner, an ally of Thaddeus Stevens.

He's in the Senate, Thaddeus Stevens was in the House.

He's also in the movie Lincoln and plays an important role.

A great senator from Massachusetts.

He points out that the floor of the Senate itself is

actually integrated, that a black senator from Mississippi is allowed to

sit right alongside whites. And he says America should look like that.

Here's what he says.

We have had in this chamber a colored senator from Mississippi.

According to segregationist ideology, we should have set him apart by himself.

He should not have sat with his brother Senators.

But see Summer thinks he should have sat with brother senators, a

vision of fraternity even, and not just equality and, and liberty, but fraternity.

A colored man is equal

here in this chamber.

I say he should be equal in rights everywhere.

Now, that's what the leading Republican crusader said.

Not everyone was on board.

There was segregation, at, when the, when the Fourteenth Amendment was adopted.

But, let's figure out what the arguments were

for segregation and whether they actually undercut Brown.

The main argument was, actually segregation

is equal.

Yes blacks can only be over here, but whites actually can, have to

be it in their own separate spaces, in their own railroad cars or schools.

So simple question.

Because in theory what, what they're saying,

what, in theory separate could be equal.

And if it were equal, it would satisfy the Constitution.

So, simple question.

Is separate really equal?

Sometimes it can be.

When it comes to, for example, sex separation.

And we have separate gyms, and separate gym classes, and public school

sports teams, and locker rooms, and bathrooms for boys and girls.

And we say well, but this isn't about

propping one gender up, and pushing the other down.

It's not some, you know, hierarchical

thing. It's just equal.

The girls prefer it, the boys prefer it.

It's equal.

And it both blacks and whites preferred segregation, it might be equal.

But that's not what, so separate can be equal.

But that's just, realistically, that wasn't what

Jim Crow in the 1950s was about.

It was an imposition by whites on blacks

to create a system of racial hierarchy and oppression.

So the basic argument

that, that was made in the 1860s, is separate could be equal, and it might.

Simple question is, was it in 1954?

Answer, no, it wasn't.

Blacks understood that the social meaning of, of Jim Crow was kind of

apartheid and racial hierarchy system, saying

whites on top, blacks on the bottom.

Blacks in the back of the bus, whites in the front of the bus.

A second and related thing that was sometimes said about

segregation was, oh, the Fourteenth Amendment doesn't apply to social rights.

But here, and, and, and I think that, that idea might have several meanings.

One, as long as the races are treated symmetrically, everything's okay.

No.

If they're treated symmetrically, it might be okay, it might not be.

We simply have to ask, is it equal?

If it's equal it's okay, if it's not equal it's not okay.

So, so, so, formal symmetry is not automatically

unconstitutional, but it's not automatically constitutional either.

We have to ask ask the equality question.

Second idea that they might says, look

the Fourteenth Amendment applies to the government action.

It doesn't apply of its own force to

private spheres, to shopping malls, or restaurants, or theaters.

Fine.

Government might be able to regulate those domains in the name of equal citizenship.

Congress might be able to pass laws. But yeah,

the just on, of their own force, the

Fourteenth Amendment is basically aimed at, at government.

But government is doing the segregating in Brown

versus Board of Education, before the Plessey versus Ferguson.

It was government that was saying, blacks over here, whites over there.

Government they were saying, two people who wanted to get together, couldn't

socialize if they wanted, if one was white, and one was black.

They couldn't go to the same school or sit in the same railroad car.

So, so this was

government action at issue. And so, so I say, and then

some people say oh, well the Fourteenth Amendment only applies to states.

It doesn't apply to

so the federal government.

But the first sentence of the Fourteenth

Amendment applies to the federal government as well.

As do the titles of nobility clauses by the way.

They apply federal government as well as the states.

And this was the creation of a racial

hierarchy, a kind of lords and serfs system.

So I think Brown is not just right but plainly right.

It's a case, and it does justice to the written Constitution.

So when we read the written Constitution through

the prism of these cases, we actually the

text is actually clarified and not obscured.

Applying the Bill of Rights against the states.

That's a huge Warren Court project.

The original Bill of Rights actually

applied only against the federal government.

The First Amendment begins with the words, Congress

shall make no law of a certain sort.

Ends with the Tenth Amendment that's all about states' rights.

The Warren Court applied most

of the principles of the Bill of Rights to the states.

Freedom of speech, and freedom of press, freedom exercise of religion, all sorts

of criminal procedure, provisions, counsel, compulsory process,

double jeopardy, jury trial, and so on.

And it did so because of the Fourteenth Amendment.

And the key words of the Fourteenth Amendment, let

me repeat them to you, we talked about this before,

no state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States.

Now, what are those privileges, immunities, fundamental things?

Where do we find evidence that something's fundamental?

Well, if it's listed in the Bill of

Rights, and the Constitution, that's evidence that it's fundamental.

So because it's in the First Amendment, it's, you

know, free speech and, and free exercise and, and the,

the, the right to assembly, those things are fundamental.

And and that's the basic textual argument for

applying the Bill of Rights against the states.

And that's the argument made by Hugo Black, who is

also on the court, the Warren Court, with Earl Warren.

And there is historical evidence to support that.

The framers

of the Fourteenth Amendment said again and again that one of their

core purposes was to apply the Bill of Rights against the states.

The man who actually drafted that language is a Congressman named John, John Bingham.

This is actually a book I wrote called The Bill of Rights.

And actually, the endpaper of that book, Honorable John A Bingham of Ohio, this is

a pamphlet he published in the House of Representatives, February 28, 1866.

And here's the title of the pamphlet, or the subtitle, in

support of the proposed Amendment to enforce the Bill of Rights.

So they said, actually, they were about

applying the Bill of Rights against the states.

And and that's what the plain meaning of the words say.

Those are fundamental rights and privileges.

Counter argument.

Well, professor, why didn't they say Bill of

Rights then if they meant Bill of Rights?

Because actually, that would have been more ambiguous.

Because what

does Bill of Rights mean? First, 8 amendments, first 9, 10.

The Constitution doesn't use that phrase, Bill of Rights.

So the text, actually, would have been more ambiguous.

Whereas people, at the time, in the 1860s, referred to what

we call the Bill of Rights, as privileges and immunities of citizens.

So, that was actually a more careful formulation, a more legally precise one.

Oh and also, do they mean, they didn't just mean only the Bill of Rights.

They wanted more than the Bill of Rights. Other fundamental rights.

Habeas corpus is not listed in the first 8 Amendments, but

it is a fundamental privilege, a right, a freedom, an immunity.

Things that aren't listed in the Constitution but

are fundamental, they wanted states to basically respect.

Proof beyond a reasonable doubt a right of a person

to, to present evidence of his innocence, all sorts of unenumerated

rights that we talked about, they wanted to protect.

Today that would include privacy.

Privacy sounds a little bit like the word privilege.

So they wanted more than the Bill of Rights, and less.

Because the Tenth Amendment arguably is part of

the Bill of Rights, is the states rights provision.

But how do you apply a states right provision against states?

If the Second Amendments is about state militias being

counterbalanced against a federal army, that's a state right

of sorts. Does that right apply against the states?

so, so more than the Bill of Rights, but maybe arguably less.

Because and, and, maybe it's actually even a little more

complicated than that, because the, let's take the Second Amendment.

Maybe it has a states' rights, militia

component, but also an individual right component, and

the right of a person to have a gun in the home for self protection.

Well, if it has both of those components, the individual right sensibly

applies against the states, but maybe not the states' rights idea.

And the word, if they just said, no state shall abridge the

Bill of Rights, you, judges wouldn't quite be able to deal with that.

It would be trying to shove square pegs into round holes,

because the Second Amendment is both states' rights and individual rights.

And how do you apply that completely against the states?

But the language

that they chose is brilliant.

It says, states can't abridge the privileges and immunities of citizens.

So, we look at the Second Amendment.

We say, well some of it's states' rights, so that's not really relevant.

But to the extent it's also about an individual right, a privilege or immunity

of citizens, that right we apply against, the state, the individual right.

So, so in fact, the framers of the Fourteenth Amendment

chose very careful language to make clear their, their core purpose of applying the

Bill of Rights against the states. and, the Warren Court vindicated, that.

One other argument, professor.

If they meant to apply the Bill of Rights against the states, and they

did so using the language of privileges

and immunities of citizens, why then did they

say due process right after that?

Because due process in, is in the Fifth Amendment.

It's already a privilege or immunity of citizens.

So, why say it again in a separate due process law?

And they asked John Bingham, the author of, of the Fourteenth Amendment

section, when just that question in

Congress, when, when this amendment was pending.

And he said, listen.

We believe in protecting aliens,

non citizens as well as citizens.

Privileges and immunities protects only citizens,

but we think aliens have certain rights.

And they have rights to fair courtroom procedures.

So we have rights of citizens, and we also

have some additional rights of persons that we are specifying.

Because remember, Bingham says, the Dred Scott Decision case had said

basically that only citizens have rights, and we don't believe that.

We think actually people who aren't citizens have rights.

If Dred Scott had

said only citizens have rights, and blacks can't be

citizens, we would think that those are both wrong.

Blacks can be citizens.

That's the first sentence.

Everyone born in America is a citizen, born an equal citizen.

Black or white, male or female, Jew or gentile, So Dred Scott's wrong on that.

Blacks can be citizens and indeed are. Dred Scott said only citizens have rights.

No, we think actually aliens have rights, too.

So, two big

things we've defended already.

The Brown versus Board of Education segregation decisions, and the

decisions to apply the Bill of Rights against the states.

Another important landmark decision of the Warren Court, a case called New York Times

versus Sullivan, protected a very broad freedom of speech against

Alabama, which had tried to shut down opposition newspapers.

Actually, there was a, a protest led by civil rights marchers in, in the South.

And the New York Times covered the protest.

And it was an ad run in the

New York Times criticizing Alabama for its repressive policies.

And Alabama tried to basically, in effect, shut down the New

York Times and shut down coverage of the Civil Rights movement.

And the Court said, not so fast, you can't do that, fundamental free speech.

We've talked about how free speech is a part of the

Constitution as a whole, even before, you know, when we read

the Constitution as a document, that it was part of the

process by which we the people in fact ordained the Constitution.

That it's part of the lived experience of ordinary Americans.

How the framers of the Fourteenth Amendment

very much were trying to open up free

speech, because the South had basically shut down

free speech, the antebellum South in the 1850s.

And now they where trying to do it again in the 1950s and 60s.

And the court said no.

And doing so affirmed the basic precepts of the Constitution,

which really that's the core of it, is free speech.

Critics said, oh, First Amendment, free speech, that

only means the government can't license the press.

But once the press publishes stuff, you can have at them.

Maybe that's what free to press meant at the founding,

according to Blackstone, but free speech meant something altogether more broad.

Freedom of speech comes from the idea freedom

of speech and debate in parliament, free political discourse.

And in England, only members of

parliament have that, because parliament is sovereign.

But in America everyone has that, everyone has the freedom

to express political opinions because we the people are sovereign.

So in fact, New York Times versus Sullivan

vindicated the deep principles of free expression in American,

principles that are in the text and the

words free speech, and no state shall abridge these.

Remember, see how the Fourteenth Amendment is born from the First.

No law shall make, abridge, those are in the First Amendment and the Fourteenth.

Now states can't do those. Just like Congress can't

abridge free speech, neither can states.

So the Warren Court is affirming the text of the Constitution, the First and

the Fourteenth Amendment, and unwritten constitutional principles of free

expression that are, that are evident when we read the document as

a whole, when we pay attention to how it was actually adopted.

We need to pay attention to the core purposes of the Fourteenth Amendment.

So, so far the Warren Court

is 3 for 3.

Right on segregation, right on incorporation, applying the Bill

of Rights against the states, and right on free expression.

In the next lecture we are going to consider

3 more areas: religion, criminal procedure, and voting rights.

And there I think his track records will be 2 out of 3.

And 2 out of 3 ain't bad.

Stay tuned.

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Confronting Modern Case Law, Part 1

美国的不成文宪法

与讲师见面