‘‘We are under a Constitution, but the Constitution is what the judges say it is,’’ noted Governor Charles Evans Hughes of New York, circa 1906. Lochner v. New York (1905) had enshrined ‘‘freedom of contract’’ into the Constitution. The Fourteenth Amendment’s due process clause guarded only Mr. Lochner’s liberty of sweatshop. Adkins v. Children’s Hospital carried this laissez faire constitutionalism forward in 1923. Government regulation was anathema to Justices Van Devanter, McReynolds, Sutherland, and Butler. All of this would change in the generation that came of age during the years of Chief Justice Hughes’s Court, 1930 to 1941. The Great Depression confounded the judges, as did Franklin Roosevelt and his Court-packing plan. How much these externals influenced the judges is debated among scholars. However, there should be no doubt of the place of the Hughes Court as a bulwark of modern civil liberties. William O. Douglas, a judge of the new generation of Roosevelt appointees, was asked which Supreme Court justice had the greatest influence on him. His answer: ‘‘I think probably one of our greatest judges in all history is Charles Evans Hughes, who was Chief Justice when I came on the Court. He was a very bold, courageous judge who saw clearly when it came to human rights, civil rights, the rights of minorities.’’ From Near v. Minnesota’s (1931) condemnation of prior restraints of speech and press, through Chief Justice Hughes’s resounding opinion in Mitchell v. United States (1941), shortly before he retired, the torch of civil liberties burned brightly. Mitchell reversed the Interstate Commerce Commission and condemned the ‘‘essentially unjust’’ discrimination against a member of Congress on an interstate train ‘‘based solely upon the fact that he was a Negro.’’ In Missouri ex rel. Gaines v. Canada (1938), Hughes wrote: ‘‘Lloyd Gaines is entitled to admission to Missouri’s Law School without respect to color.’’ This was a precursor of things to come. The Hughes Court coldly resisted the ‘‘haste of the mob.’’ It insisted on the right to counsel, condemned race discrimination in jury selection, and outlawed coerced confessions. It is in the field of civil liberties, the Hughes Court proves, that judicial supremacy finds its enduring justification in American constitutionalism.
Justice Oliver Wendell Holmes’s ‘‘clear and present danger’’ test, announced in the Schenck v. United States (1919) case, was regularly applied by the Hughes Court to protect the citizen’s right to talk, to peaceably assemble, to distribute religious pamphlets, to engage in labor picketing, to practice one’s religious beliefs, and to fuss at the government. ‘‘Therein lies the security of the Republic, the very foundation of constitutional government,’’ wrote Chief Justice Hughes. When a young woman of nineteen named Stromberg raised the flag of Soviet Russia at a Communist League summer camp, California put her in jail. But there was no incitement to riot; there was no imminent danger. The Hughes Court set her free. Liberty and the First Amendment embrace the flag as a symbol of protest. Sixty years later, the Supreme Court would extend Stromberg v. California (1931) beyond the Hughes Court to protect those who would burn the U.S. flag as a symbol of protest.
Justice Owen Roberts, a central figure on the Hughes Court, reached out to protect Jesse Cantwell, a Jehovah’s Witness, from censorship of religion: ‘‘In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.’’ The same Justice Roberts who in the past condemned New Deal economic regulation as unreasonable, now weighed legislative restrictions upon freedom of speech, press, religion, and found them wanting.
After the Court-packing crisis quieted down, Justices Hugo Black, William O. Douglas, and Frank Murphy joined a reconstituted Hughes Court. All were zealous bulwarks of civil liberties. They put civil rights first, and John D. Rockefeller’s property second. The same is true for Justice Louis D. Brandeis, a progressive of Woodrow Wilson’s era, and Harlan Fiske Stone, sometime dean of the Columbia Law School. Both men sat on the Hughes Court. Justice Stone’s dissent in United States v. Butler in 1936 shook the very foundation of the Supreme Court’s assault on Congress: ‘‘The only check upon our own exercise of power is our own sense of selfrestraint.’’ But in the field of civil liberties, writing for the Hughes Court, Stone insisted that the government must carry the burden of proving a compelling justification for any restriction of civil liberties, and the government must use the least restrictive means available. Harvard Law School Professor Felix Frankfurter joined the Hughes Court in 1939. Frankfurter’s view of the judicial role was narrower. In Minersville School District v. Gobitis (1940), he wrote: ‘‘Lillian Gobitis must recite the pledge of alliance and salute the national flag notwithstanding her sincere religious convictions, or be expelled from public school.’’ Justice Frankfurter’s opinion in the First Flag Salute Case baffled Mrs. Roosevelt. Why would Frankfurter, who keenly supported civil rights as a professor, turn his back on religious conscience? The answer lies in Frankfurter’s insistence on judicial restraint: to sustain Gobitis’s claim ‘‘would in effect make us the school board for the country. That authority has not been given to this Court, nor should we assume it.’’ Justice Stone dissented, alone. Three years later, Justices Black and Douglas switched their votes. This time, Justice Robert H. Jackson’s ringing opinion in West Virginia Board of Education v. Barnette (1943) saved the First Amendment from the Court itself and put freedom of conscience back into the Bill of Rights.
Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.
Chief Justice Hughes wrote on a proof copy of Justice Black’s Chambers opinion: ‘‘Clear as a bell.’’
PAUL R. BAIER
References and Further Reading
Cases and Statutes Cited
See also Brandeis, Louis Dembitz; Brown v. Mississippi, 279 U.S. 278 (1936); Butler, Pierce; Cantwell v. Connecticut, 310 U.S. 296 (1940); Chambers v. Florida, 309 U.S. 227 (1940); Clear and Present Danger Test; Coerced Confessions/Police Interrogation; De Jonge v. Oregon, 299 U.S. 353 (1937); Douglas, William Orville; Flag Salute Cases; Flag Burning; Frankfurter, Felix; Freedom of Contract; Hague v. C.I.O., 307 U.S. 496 (1939); Holmes, Oliver Wendell, Jr.; Hughes, Charles Evans; Jackson, Robert H.; Lochner v. New York, 198 U.S. 45 (1905); McReynolds, James C.; Murphy, Frank; Near v. Minnesota, 283 U.S. 697 (1931); New Deal and Civil Liberties; Powell v. Alabama, 287 U.S. 45 (1932); Prior Restraints; Right to Counsel; Roberts, Owen Josephus; Roosevelt, Franklin Delano; Schenck v. United States, 249 U.S. 47 (1919); Scottsboro Trials; Stone, Harlan Fiske; West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)