Welcome back we're in the middle of our discusion of the war in court and the war in court revolution. We've talked about three prominent. Areas of case law that that revolution involved. Its segregation, the segregation decisions in 1954, Brown versus Board of Education and it's companion case, Bolling versus Sharpe. We talked about a series of cases in which the Warren Court came to apply, to incorporate, that's the phrase, the Bill of Rights against state and local governments. And we talked about a landmark free expression case, New York Times versus Sullivan. In which the court upheld the right of Americans to engage in robust, uninhibited and wide-open freedom of speech including sharp attacks on government officials So, today we're going to talk about three other areas of Warren court case law and pull the camera back and talk about the Warren court as a whole. So, another famous and controversial series of cases in the Warren court involved, prayer in the public schools and, and the court, basically. Eliminated organized, state runs, school sponsored and directed prayer in the public schools in a series of cases in the early 1960s. Engel and Abington are two of the important cases here. And. So, where does the constitution say that, professor? Well, the constitution does in the first amendment talk about free exercise of religion and the idea that there should be a federal establishment of religion. Now recall that, of course, thanks to incorporation, these basic principles, in so far as they're principles of liberty, and equality and freedom as opposed to mere state's rights, these basic principles apply against states as well as the federal government. They're incorporated. Now think about organized prayer in the public schools and ask yourself. Is that really consistent with full religious liberty and equality which are the fundamental principals. So when the government is writing the prayer, well whose prayer is it going to write? Is it going to right a Christian prayer? Well, not everyone is Christian. Is that really equal? Even if it writes a Christian prayer. Is it going to write the protestant prayer or Catholic prayer? If we're going to do Bible reading, are we going to read from the King James Bible or the, the Catholic, the Douay Bible? How's the Apocrypha going to be treated? Which translation are we going to use? So now government, when it makes all these decisions, is picking sides. It's choosing one. Religion and often within that one sect, one prayer to, to privelage to advantage over the others, and at the very least if government tries to do that, students of different faiths have a right to not participate. They have a right to be excused, obviously they can't be, no one can be compelled in America really to. To engage in a religious worship ceremony contrary to their own faith tenets. so, so at the very minimum you would have to actually excuse folks of other religions, but here's what would happen when you do that in the public schools. You have to in fact be segregating students at that moment of prayer. On the basis of basically their religious beliefs. Some people would have to stand up and stand out from the others. And this was a court remember, a very sensitive to the social meaning of segregation. Of, of, of the government dividing kids a particularly. So, so remember this was a court that earlier in the Warren court era, has, era, has given you. Brown versus Board of Education, and, Bowling versus Sharp. So, I think the same kind of sensitivity to the ways in which, segregation could itself be, unequal, calling attention, to certain distinctions, among people, some are born lighter-skinned than others. Some have different faiths than others, and, the basic thought is government shouldn't be in that business, that is a violation of the deep idea of religious liberty and equality. Seems to me that's a very plausible Understanding, of our constitutional precepts. Perhaps not, compelled, there might be other interpretations but here I think as elsewhere the, the case law actually buttresses, supports, clarifies, the constitutional text. It's a useful lens, or prism, through which we can engage the text. Now, I'm going to have a, I have a different view about the so-called exclusionary rule. Under this rule that the Warren Court, that predated the Warren Court that first appeared in Supreme Court case like the beginning of the 20th century, when the federal government was involved, but that the Warren Court extended to states. In a early 1960s case called Map versus Ohio. This principle, basically is as follows. If the government, state, or federal, according to the Warren Court, it's extending it to the principle of the states. If the government acquires certain evidence against a suspect. And that evidence is acquired in violation of the fourth amendment, then that evidence can't be used in, a judicial, in that criminal case against that defend, even if the evidence is completely, one hundred percent reliable, it's the smoking gun. And it's got the um,defendants fingerprints all over it. It's the bloody knife with the victims blood with her blood on the blade and, and his um,um, uh,uh, bloody fingerprints on the handle even it's completely reliable evidence of guilt under the exclusionary rule um,it can be tossed. From the, the case. And the guilty defendant may walk free, grinning. Much to the shagrin and, and the horror of the victim and or her family. I'm, I'm using gender here because often criminal victims are women. Often, perpetrators are, are men. And the question is, where does the constitution say that? And my answer is, it doesn't. It doesn't in any of the ways actually and it doesn't in any of the ways the proper ways, of going beyond and beneath and behind the constitution while remaining faithful to it. So the fourth amendment's texts doesn't say any about exclusion of evidence. And no framer of the Constitution said anything supportive of, of something like the exclusionary rule. The universal rule at the founding, in federal courts and in every state court, and most states you see have 4th amendment Counterparts in their state constitution was reliable evidence comes in and English, that has always been the rule of England. Ahm, in fact, here's a sentence from an English judge. It matters not how you get it if you steal it even it would be admissible. The question is, is it reliable? So no founder the text doesn't say exclusion. No founder thought so. For the first 100 years in America, no court, state, or federal. First 100 years after the declaration of Independence, no exclusion anywhere in America. As I said, that's never been the British rule. And you say okay well professor fine, so it's not in the text, but you yourself believe in going beyond the text in all sorts of ways. Yes I do. So, is a right of exclusion implicit when we read between the lines? Is it a is it. I say when we read between the lines, here's the principle, we protect innocent people against the possibility of erroneous conviction. So, yeah, the text doesn't say a right to have an appointed lawyer. And actually that wasn't the uniform early practice, but without a lawyer you might be innocent and nevertheless convicted. And we don't believe in that. That's not, the system is designed to sort the innocent from the guilty. And in order to do that in today's world, everyone needs a lawyer. And if you can't pay for it, we pay for it. The government pays for it. because that's central to innocence protection. Yes, the text doesn't say you have a right to, to introduce reliable physical evidence of your innocence, but that innocence protective So we should do that. Yes the text doesn't say proof beyond a reasonable doubt, but that will protect a possibly innocent person from being erroneously convicted, that's the deep constitutional provision. So, when we read between the lines it's about protecting innocents not guilt as such. And the exclusionary rule protects the guilty as such. Well, we talked about another principle. The lived constitutional principle about looking at how counting practices and, and learning from bottom up customs. And, and understandings of, of the citizenry. When Gideon versus Wainwright was decided by the Warren court. 45 of the fifty states already gave criminal defendants paid attorney's. So it was already in all felony cases, and other states actually of the five gave them in some sub set of cases. So, when the Winship case was decided, almost everywhere you had proof beyond reasonable doubt. When the court affirmed that a defendant had a right, criminal defendant, take the stand, and his, his, his own behalf, almost all the states had already done that. Those things were part of the lived constitution. Not so with the exclusionary rule. When the court extended the exclusionary rule to the states, the Warren court Actually most states where most Americans lived did not have comparable exclusionary rule principles. And where states had exclusionary rule principles, these had basically been concocted by judges often without strong popular support. And so as actually we're going to see. Interestingly this one area, the exclusionary rule, is not only the area where the Warren court was most strayed furthest from the, the, the, the proper, a proper understanding of the unwritten Constitution. It's also been the one area where later courts have pushed back the hardest. So this is the one thing, the exclusionary rule where the Warren court legacy actually has been weakest. And the other areas as we are going to see later courts have actually endorsed the Warren court vision and the other five areas. When it comes to, to segregation and incorporation of the bill of rights against the states, and broad protection of free expression and religious liberty and equality, and voting rights. Which the other area, so now let me talk about voting rights for, for just a minute. The Supreme Court affirmed a broad right of, of, of, of people to vote and to have their vote counted equally One person, one vote. An end to malapportioned state legislative systems where let's say a hamlet of a thousand people sent one representative to the state capital and the state legislature, and right next door a city of 20,000 people also sent one representative. So massively unequal. Full apportionment, before the Warren court, and the Warren court ended that saying, nope. Representatives represent people not the trees or acres, that's a direct quote from chief justice Warren in the famous case called Reynolds versus Simms, and the basic idea, the take home of that is one person, one vote. The districts have to be pretty much equal size for congressional seats within a state, for state legislative seats. Both the lower house and the upper house of the state legislature. So the state senate can't be malapportioned. Can't treat counties. Give each, give counties. Equal weight if they were of, of different populations the way the Senate, the US Senate does give states actually equal weight even if there are very different populations. California is a lot more than Wyoming. In the US Senate Wyoming and California count equally. But that, you can't do that at the county level in any state senate. Randalls versus Sims. Says basically that in elections for the state assembly, the state senate and also in another Warren court case, for congressional delegates, the districts have to be pretty much equal-sized. And where does that come from, you say? The court said the equal protection clause, but now you know enough to know that that's a little tricky. Because equal protection was about aliens who weren't even citizens, it's sort of an odd way to talk about the right to vote. The framers of the 14th Amendment didn't think that Section one was really about a right to vote. That's why you needed the 15th Amendment. 14th Amendment was about race discrimination, but not in voting. Elsewhere, civil rights, not political rights, not about voting, that's why you needed the 15 Amendment, which was about race discrimination in voting. That's why you needed the 19th Amendment, which was about race, about sex discrimination in voting. If equal protection did all the work, and said, no discrimination in voting, boy the 15 and the 19 Amendment weren't even necessary. So, so what the Warren court said. Equal protection didn't quite make sense. But it did, these cases did make sense to the Constitution as a whole. The Constitution, five times after the Civil War, talks about our rights to vote. And in Section two of the 14th Amendment, it says if there are deprivations of the right to vote, There should be, there has to be a penalty paid, the states should get fewer representatives in the House of Representatives, the Electoral College. And since they've never paid that penalty, at all, actually I think the text says if they don't pay a penalty then everyone has to vote and vote equally. And if, and if they're not voted equally, or if they're not voting, a penalty must be paid, they should get fewer seats in the House and the Electoral College. But since they're not getting fewer seats. No discrimination in voting. Everyone has to vote and all the, you know, and, and the votes have to be counted equally. And by everyone, the 14th Amendment, Section 2, said, male citizens who are resident and and adults, and non-felons. Amendment, male doesn't mean male any more. It means male or female, because the 19th Amendment's about women suffrage and the 14th Amendment actually says 21. That was the age but after the 26th Amendment, that's now 18 but the basic presumptive base is adult citizen, residents, get to vote and the 14th Amendment, section two actually says that then, and actually these Warren court cases. Really do affirm that. And think about what would happen if you didn't have some principle of people voting. Would it be okay for, example, a legislature to come up with apportionment rules? So, the 51, let's imagine a legislature of 100 seats, so the 51 senior members of the legislature, they each have their own little district. They vote for themselves and now they've got a lot, they've got a majority. And the entire rest of the state is divided up among the rest of us. Well that can't be right. That's, that's not a Republican form of government, the government from the people. And and so if that can't be right, then there'd have to be some limits on the ability of states to malapportion. And the Warren court announces the limit. And one easy enforcement rule is just count the votes equally and, you know what I just did? I slipped in another constitutional clause. Did you, did you notice it? I mentioned the Republican Government Clause of Article 4. Yes, at the founding, that clause wasn't very vigorously enforced because slave holders wouldn't have wanted the Federal government to monitor too closely how they counted slaves or didn't in state legislative apportionments or. How they treated free blacks, or didn't let them vote. So before the Civil War, I can understand that the Republican government cause had a very narrow reading possibly, because the antebellum south wouldn't have wanted robust federal enforcement of this idea of republican government. But we saw in earlier lectures, that during the Civil War itself, and especially right after The word. And the very process by which the Fourteenth and Fifteenth Amendments were adopted. Congress embraced a very broad reading of the Republican government clause. Now, states are going to have to be held to very high Democratic standards. That. Understanding that new understanding of the Republican government clause was baked into the constitutional cake, so to speak. It was part of their process that gave us the Reconstruction Amendments and I think the war courts picking up on all of that. It says well, Congress read the The republican government clause very broadly in the 1860's, but there's nothing in that clause that only congress can enforce it. So it's permissible for federal courts to protect voting rights very vigorously in the 1960's. Building on that same fundamental precept that after the Civil War. There's an important federal role in making sure that states meet very high standards of, of, of democracy in republican government. The court called that equal protection. I would've preferred, because equal protection is about persons (aliens, not citizens) and voting is all about citizens, really, I would've preferred that they had called it the Republican Government Clause or Section 2. Of the 14th Amendment that does say the right to vote shall not be abridged, and unequal counting of votes is an abridgement, of sorts okay, let's sum up. So I think that, in the voting area the Warren Court pretty much got it right, as it did in segregation, and incorporation, and free expression, and religious liberty, but not. In on the exclusionary rule. Let's just take a step back. And I'm going to tell you a little bit about this picture. This is Earl Warren and as I said it's conventional to refer to Supreme Courts by focusing on their Chief Justice. He wasn't the only person obviously. He in the Warren Court, alongside him was a great. senator, former senate, he was a Republican governor from California. And along him, there was a former Democratic senator from Alabama, Hugo Black, and a former New Jersey Democrat judge. William Brandon. So, a northerner, a southerner, a westerner. A northern Democrat, a southern Democrat a western Republican. A governor, a senator, a judge. And this triumvirate, Brandon, Black. And Warren, together really lead the Warren court. and, and and, and the world was transformed. Let me just remind you what the world looked like before Earl Warren took over. Massive racial segregation. American apartheid ruled a huge portions of, of, of America. Jim Crow reigned supreme. Many states disfranchised blacks with impunity and had, had been characterized by massive malapportionment. Without and in many cases the malapportionment was very much racially based, white rural areas were over represented at the expense of black urban areas, black, cities. The Bill of Rights didn't generally apply against the states. Many states have gotten away with. Suppressing free speech and, and, and the court hadn't always reliably and consistently stood up for free speech even involving core political expressions. State-organized prayer was commonplace in the public. Schools criminal defendants had precious few constitutional rights the judges protected. That's the world of 1953, and it's not our world, that's an unrecognizable world. In the course of 16 years, Earl Warren and company revolutionized Our constitutional understandings. So there is no Jim Crow today. There is no massive malapportionment and deprivations on, on, on the kind of scale that existed in 1953 on the right to vote Today there is no organised school prayer. This is sort of wide spread and everywhere today. The Bill of Rights generally does apply against the states. Fraud protection of free speech are really the law of the land. Robust uninhibited and wide open. Now the exclusionary rule still exists, but it's actually been cut back. So it's the one area where courts in American culture actually have been a little sceptical of the Warren court. And it's interestingly the one area, I think, where the Warren court really kind of made things up. so, so here's the bottom line. It's very interesting. The critics of the Warren Court is, is making up all this stuff and here's and, the, and the defender said who cares if it is, these are good rules. Mine's different. My defense is different. In general, the Warren Court was faithful to the written constitution. Often, it used the wrong clause. Voting rights it said equal protection it should have said the right to vote is section 2 of the 14th amendment republican government. On incorporation, it said due process is the reason that we incorporate these rationing in states it should have said the privileges or immunities clause. Of the 14th amendment applying racial equality principles against the federal government. It didn't say the first sentence of the 14th amendment. It doesn't have to state, it just says equal citizenship. It didn't always give. The best arguments are quite, but it did channel the deep spirit of the Constitution. And, and, and one of the reasons that didn't always give the best arguments is given the best arguments would have sometimes required overruling Presidents. And, as it was, the Warren Court overruled a lot or Presidents and maybe it was afraid to overrule even more presidents in doing the right thing. But the amazing thing is, today these very controversial war and court decisions actually provide are pretty much accepted by both sides of the political spectrum let's take Brown everyone today thinks Brown is right. Conservatives as well as liberals affirmed Brown, liberals say Brown stands for racial integration and and robust and educate and the importance of education and And equality everywhere and conservatives say Brown says Government shouldn't be in the race classification business even when it comes to affirmative action. They are both claiming Brown, different interpretations of Brown. The conservative one, no affirmative action, the liberal one, education and integration. Let's take, find the Bill of Rights against the states. Conservatives have bought onto that. They say, oh,by the way, if you're going to apply free speech and free exercise and and search and seizure and compuls, and compulsory processing, double jeopardy, if you're going to apply the 1 amendment and the 4th and the 5th and the 6th and the th against the States. The 2nd amendment too please. Conservatives actually in the Roberts court applied the Bill of Rights the second amendment, read it and individual rights way and applied it against the States in a case called city of Chicago versus McDonald. They're buying into the incorporation project actually. Let's take freedom of speech. Liberals say Congress shouldn't target legal aide attorneys that it doesn't like and defund them. And conservatives say, well we believe in free speech too. Citizens united. Government shouldn't be manipulating campaign finance laws to protect incumbents. So, both of them are accepting New York Times versus Sullivan. We have a kind of a liberal and conservative interpretation of New York Times versus Sullivan. Let's take voting rights. Liberals and conservatives both believe in voting rights. They had different accounts of that in the case of Bush versus Gore. But in Bush versus Gore the republicans on the court actually were affirming were, were echoing some of the voting rights cases the Warren court. I think they, they were misreading what some of those cases said on their facts perhaps. But, but they were both conservatives and liberals pledging allegiance. To the voting rights cases of the, of the Warren court. When it comes to religion, the conservatives say okay, we buy the idea that no prayer in public schools. But if you really believe in religious equality, then we shouldn't be discriminating against religion either. And if everyone else gets a voucher for private schools, religious private schools should also participate in the voucher plan. And if all the other student organized clubs, then the Bible study should also be able to meet after school. So if the idea is religious liberty then we shouldn't be discriminating against religion because that's accepting the basic precepts of the Warren Court. We are not going back to organized State sponsored prayer in the public schools. So in area after area, with the exception of the exclusionary rule, actually I think the court has, has really accepted the basic teachings of the Warren court. Here's Earl Warren. He was and we come back to the pictures. We always do at the end of chapters. He was Governor of California. Big sunny guy. In Sacramento. Now when he's Governor of California, there's I a youngster in California whose house Earl Warren visits multiple times. This youngster actually, I think is a state page, a legislative aide in the California capital. In Sacramento, where Earl Warren sort of presides over everything. That youngster's name, Anthony Kennedy. And he's now the Supreme Justice on the Supreme Court. And so, and the person of Anthony Kennedy and in many, many other ways, I think you see. The enduring power of the continuity of the Warren Court vision in various ways, and again there's a conservative interpretation and a liberal interpretation that both sides actually, in all sorts of interesting ways, claim the Warren Court, who would have thunk it. well, we're not done yet, lots more to cover, in particular. Here's the, the key thing about the Warren court. It overruled a ton of precedents. More precedents, really, than any court before. About half as much as as the entire period before the Warren court. So in our next couple of lectures, we're going to try to think about what the Constitution has to say about precedent and what precedent has to say about the Constitution. Stay tuned. [MUSIC]
