[BLANK_AUDIO] 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. [MUSIC]
