Although the Warren Court is perhaps best remembered for cases holding racial segregation unconstitutional, as well as its reconfiguration of American politics in the reapportionment cases, it also undertook the most extensive reinterpretation of constitutionally protected rights in American history. The question that had deviled the Court since the 1920s—to what extent did the Fourteenth Amendment’s due process clause incorporate the Bill of Rights and apply them to the states—was now answered. By 1969 all of the major provisions of the first eight amendments applied to the states as well as to the federal government.
One needs to see the Warren Court decisions in the areas of civil liberties as closely related to those protecting civil rights. Some of the key speech and association decisions, such as New York Times v. Sullivan (1964), grew directly out of the civil rights conflict. Blacks also suffered greatly from the inequities of the criminal justice system, and justice for unpopular minorities accused of crime related closely to the Court’s overall search for a living Constitution that treated all citizens equally.
The Warren Court was among the most speech protective in the nation’s history, and its major contribution to speech jurisprudence lay in the broad vision of the First Amendment that informed its decisions. In Bates v. City of Little Rock (1960), the Court held that First Amendment freedoms ‘‘are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.’’
Two related themes run throughout these cases. One was the debate over the preferred position of First Amendment rights advocated by Justices Black and Douglas; the other was whether these rights are ‘‘absolute’’ or require ‘‘balancing’’ with competing interests. For Black, the preferred position doctrine led naturally to the absolutist view, while Frankfurter, joined by John Marshall Harlan, advocated balancing. How difficult the issue could be was seen in Konigsberg v. State Bar of California (1961), a fiveto- four opinion in which the Court sustained the state’s denial of bar admission to an applicant who had refused to answer questions on Communist Party membership. Harlan’s majority opinion carefully explored how society had differing interests, none of which could be allowed to override all others. While people had a right to say whatever they wished, in some instances society had an equally compelling reason either to limit that speech or to punish the speaker if the speech had incited certain results. Harlan detailed a lengthy list of cases in which the Court had approved limits on speech to show that historically the Court had always balanced these various interests. Justice Black’s eloquent dissent acknowledged these cases, but he believed that, in the area of speech, any whittling away of liberty would lead to its eventual loss. Balancing required establishing criteria for evaluating the government’s intent as well as that of the speaker, which meant that the most important of all freedoms rested on the subjective judgment of courts. He believed it much better to take an absolutist stance.
‘‘Overbreadth’’ became a key idea informing the Warren Court’s speech decisions. The doctrine acknowledged that speech and other First Amendment rights might be restricted, but required that the government show a compelling need to do so. Judges could thus use the test to keep interference as minimal as possible. It provided the balancers with a means to achieve the goals of the absolutists, while at the same time retaining flexibility to meet emergency situations.
In Brandenburg v. Ohio (1969), the Warren Court responded to the criminal syndicalism statutes that Holmes and Brandeis had protested against in the 1920s. Brandenburg, the leader of a Ku Klux Klan group, had been convicted for advocating terrorism as a means of political reform. In the per curiam opinion, the Court voided the statute because its overly vague definition of criminal activities unduly restricted both advocacy and the right to assembly. Brandenburg has been described as combining the best of Holmes, Brandeis, and Learned Hand, in that it makes freedom the rule and restraint the exception, permits restriction only where a clear connection between speech and legitimately proscribed actions can be established, and requires that the government spell out its rules clearly and in the least restrictive manner.
Overbreadth also proved a useful doctrine in the various Vietnam protest cases. In Bond v. Floyd (1966), for example, the Court ruled that black activist Julian Bond’s First Amendment rights had been violated by the Georgia House of Representatives, which had excluded him from membership because, it claimed, Bond could not conscientiously take the required oath to support the Constitution given his antiwar sentiments. In the unanimous opinion, Chief Justice Warren ruled that neither public officials nor private persons could be punished for their opinions if they did not violate the law. Expressing admiration for those who had the courage of their conviction did not constitute ‘‘counseling, aiding or abetting.’’
Speech may take several forms, and the Court consistently ruled that symbolic speech also came under the First Amendment umbrella. In Tinker v. Des Moines School District (1969), the Court overturned the expulsion of three students for wearing black armbands to symbolize their opposition to the war. School officials claimed that the wearing of armbands interfered with proper discipline and might be disruptive. Justice Abe Fortas rejected this argument, and held that students do not lose their constitutional rights when they enter the schoolhouse. School officials had shown no proof that any disruption had occurred, and fear that a disturbance might occur could not justify repression.
Symbolism had its limits, however, as the Court made clear in United States v. O’Brien (1968). Four men had burned their draft registration cards at an antiwar rally, claiming that the card burning symbolized their opposition to the Vietnam War. The Court, according to the chief justice, refused to accept ‘‘the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.’’ The government had a legitimate interest in preserving the cards, since the draft played an important role in providing manpower for the nation’s defense.
The overbreadth doctrine, despite some whittling down during the 1970s, remains a core ingredient of First Amendment law; its importance lies not just in these few cases, but in its wider application. It is a present—oriented doctrine, requiring judges to look not at some horrid future possibility, but at what happened in a specific set of circumstances.
As late as 1942, in Chaplinsky v. New Hampshire, a unanimous Court had confidently listed ‘‘fighting words,’’ obscenity, and libel as examples of expression outside First Amendment protection. The United States had long ago done away with the English common law on libel and defamation of character, in which the mere publication of a defamatory statement— whether true or not—could be punished. American law allowed the defendant to offer evidence of the truth of the statement, which, if accepted by judge or jury, served as a complete defense. All states, however, still permitted civil actions in tort for false or malicious statements, and wide gradations existed among the jurisdictions; the Supreme Court had, with few exceptions, left libel a matter for state law.
In this context the Warren Court handed down one of its most important First Amendment cases, New York Times v. Sullivan, in 1964. An advertisement in the Times signed by dozens of clergy and civil rights advocates charged the police and city officials of Montgomery, Alabama, with unleashing ‘‘an unprecedented wave of terror’’ against blacks engaged in nonviolent demonstrations against discrimination. Sullivan, Montgomery’s police and fire commissioner, sued the newspaper and several of the black clergymen who had signed the ad, and won a $500,000 judgment under Alabama law. Alabama law held publications ‘‘libelous per se’’ if the words tended ‘‘to injure a person [in] his reputation’’ or ‘‘to bring [him] into public contempt.’’ The statute retained many elements of the old common law, and although the defendant could offer truth as a defense, he had a heavy burden to prove.
The nexus between the First Amendment and civil rights could not have been clearer. If Alabama could force the Times to bankruptcy (and $500,000 was an enormous judgment in the 1960s), it could insulate itself from public scrutiny of its treatment of blacks. Criticizing the South, or even just reporting what happened, could prove too expensive for news organizations.
In a unanimous decision, the Court found the statute ‘‘constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are requirements’’ of the First Amendment. Justice Brennan’s opinion carefully explained that there is always a balancing test between unlimited speech and the legitimate interests of the state; in matters of public interest and concerning public officials, he struck that balance on the side of free speech, with the exception of ‘‘recklessly false statements’’ made with ‘‘actual malice.’’ The Court considered the case, Brennan wrote, ‘‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’’ As Brennan wrote in another libel case, Garrison v. Louisiana (1964), ‘‘speech concerning public affairs is more than selfexpression; it is the essence of self-government.’’ In effect, the Court proposed a strategy, which has governed ever since, that extended the line of protection past the constitutional minimum all the way to facts, even false facts, to encourage the debate that democracy deems valuable.
Within a few years of this case, the law of libel had been effectively nationalized. While states could still control the procedural aspects of actions for libel, the substantive criteria had to conform to the Court’s ruling in Times and subsequent cases. If speech dealt with public officials and their conduct, it came within constitutional protection. In 1967, a majority of the Court applied the Times rule to public figures as well as to officials in Curtis Publishing Co. v. Butts and Associated Press v. Walker.
Obscenity, like libel, had long been considered outside First Amendment protection and subject to state control. The Supreme Court’s first encounter with obscenity came in a little noticed case at the beginning of the 1956 term, Butler v. Michigan, in which Justice Frankfurter threw out a state statute as a violation of freedom of the press. The law banned books containing obscene, immoral, or lewd language for their potentially harmful effect on youth. ‘‘Surely this is to burn the house to roast the pig,’’ wrote Frankfurter. The law ‘‘would reduce the adult population of Michigan to reading what is fit for children.’’ Although the case put forward no judicial standards by which to judge the obscene, it did make clear that the older, Victorian values could not be sustained in a First Amendment challenge.
The following year the Court did try to establish a new standard in Roth v. United States. Justice Brennan, for a majority of the Court, noted that ‘‘obscenity is [historically] not within the area of constitutionally protected speech or press,’’ but any idea having ‘‘the slightest redeeming social importance’’ could claim First Amendment protection. He drew a distinction between sex and obscenity, defining the latter as material ‘‘which deals with sex in a manner appealing to prurient interests.’’ The Court rejected the earlier test for obscenity, developed in the 1868 English case of Regina v. Hicklin, which judged the material by the effect of selected passages on particularly susceptible persons. In its place the Court adopted a standard already in use in some American courts: ‘‘Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.’’
Justices Douglas and Harlan in their separate opinions both pinpointed the key problem as being how to identify obscene material. The Brennan test, although more liberal and fairer than the Hicklin standard, still required subjective judgment as to whether the allegedly prurient material had any redeeming social value.
The determination of what constituted obscenity troubled the Court for the next two decades. As Justice Harlan noted in 1968, the subject had produced a variety of views ‘‘unmatched in any other course of constitutional adjudication.’’ Thirteen obscenity cases between 1957 and 1968 elicited a total of fifty—five separate opinions. The justices seemed preoccupied with the question of ‘‘What is obscenity?’’ instead of conducting the type of inquiry normal to First Amendment litigation, ‘‘What state interests justify restraint?’’ Brennan’s flat—out ‘‘obscenity is not speech’’ put it into a separate category apart from the well—defined analyses that the Court developed in other speech issues. Not until the Burger Court refined the Roth test in 1973 did the justices finally confront the question of why the states had an interest in such controls.
The Court’s libertarian reading of the First Amendment’s freedom of expression infused new vigor into the Jeffersonian philosophy of the two religion clauses. The ‘‘wall of separation’’ formula had first been utilized by Justice Black in Everson v. Board of Education (1947), a strange five-to-four opinion in which Black had written an eloquent essay on the historical reasons for separation of church and state, going all the way back to the 1786 Virginia Statute for Religious Freedom. He quoted Jefferson that the clause had been intended to erect ‘‘a wall of separation between church and State,’’ a wall, Black claimed, that had to be sustained; the Court ‘‘could not approve of the slightest breach.’’ He then turned around and sustained a New Jersey statute allowing school districts to reimburse parents of parochial school students for costs in transporting them to class.
The first significant religion cases before the Warren Court came in 1961 and involved Sunday closing laws. In McGowan v. Maryland, the Court upheld a state law that required most retail stores to close on Sunday, but permitted a number of exceptions for resorts and entertainment businesses. The policy, long established not only in Maryland but elsewhere, had the support of Christian groups as well as established businesses who did not want to compete with newer and aggressive retailers offering longer hours of service. A strict reading of the First Amendment would have required the Court to strike down these laws, since, as Chief Justice Warren conceded, ‘‘the original laws which dealt with Sunday labor were motivated by religious forces.’’
The Court sidestepped the problem by claiming that over the years, the original religious purpose of the blue laws had given way to a secular rationale, and that therefore the laws bore ‘‘no relationship to establishment of religion as those words are used in the Constitution.’’ The present purpose, according to Warren, ‘‘is to provide a uniform day of rest for all citizens.’’ Jewish merchants, however, objected to the Sunday laws on free exercise grounds as well. In Braunfeld v. Brown (1961), Orthodox Jewish merchants pointed out that under rabbinic law they could not keep their stores open on Saturday, and since Pennsylvania forbade them to do business on Sunday, they were in a cruel situation where they had either to violate their religious beliefs or suffer severe economic hardships. The chief justice again sidestepped the real issue by claiming, as in McGowan, that the Sunday laws served only a secular purpose. Laws that had a primarily secular purpose but that imposed an indirect burden on religion did not violate the Constitution.
Warren’s opinions in McGowan and Braunfeld elicited strong dissents from Justice Douglas and Brennan. According to Douglas, all blue laws were derived from the Fourth Commandment and not from the Constitution, and therefore all violated both the establishment and free exercise prohibitions. In a separate dissent in Braunfeld, Justice Brennan asked the questions that Warren had so carefully evaded, and yet that are essential in First Amendment cases. ‘‘What, then, is the compelling state interest which impels the state to impede appellants’ freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants’ freedom?’’
The dissenters’ arguments had a surprisingly swift impact, for two years later the Court handed down a decision that in effect negated Braunfeld. A Seventh Day Adventist had been discharged from her job because she would not work on Saturday, her sabbath; she could not find other work because she would not accept any job requiring Saturday work. South Carolina rejected her claim for unemployment compensation because state law barred benefits to workers who failed, without good cause, to accept ‘‘suitable work when offered.’’ After the South Carolina Supreme Court upheld the denial of benefits, Sherbert appealed, claiming interference with her free exercise of religion. In Sherbert v. Verner (1963), the Court through Justice Brennan agreed with her.
Brennan applied the traditional analysis he had urged in his Braunfeld dissent—what compelling state interest required an infringement on religious freedom?—and he could not find any. He did not believe that granting benefits to Adventists on slightly different grounds than to Sunday worshipers constituted an establishment in favor of the Adventists. Rather, it ensured that the government would act neutrally toward all groups and not penalize one because it had a different day of rest from the others.
By this case, the Court had already begun moving toward a more activist view of the religion clauses. In Torcaso v. Watkins (1961), it upheld an individual’s right not to believe in God by striking down test oaths in Maryland. Nearly all states had had some form of test oath prior to the Civil War, requiring an affirmation of religious belief, but most had either been wiped off the books or allowed to stagnate in the latter nineteenth century. Because the First Amendment had not applied to the states at that time, no cases testing such oaths had come before the Court prior to Torcaso, which in essence administered the coup de grace to a moribund practice.
Prayer in public schools, however, was far from moribund when the Court declared the practice unconstitutional in Engel v. Vitale (1962). The New York Board of Regents had prepared, for use in public schools, a ‘‘nondenominational’’ prayer which read: ‘‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.’’ The state’s highest court upheld the rule so long as the schools did not compel students to join in the prayer when parents objected. By a six-to-one vote (Justices Frankfurter and White did not participate), the Supreme Court held the practice ‘‘wholly inconsistent with the Establishment Clause.’’ The prayer, according to Justice Black, could not be interpreted as anything but a religious activity, and the establishment clause ‘‘must at least mean that it is no part of the business of government to compose official prayers for any group of American people to recite as a part of a religious program carried on by government.’’ Only Justice Stewart dissented. He considered that the practice did no more than recognize ‘‘the deeply entrenched and highly cherished spiritual tradition of our Nation.’’
Not since Brown had the Court come under so much public criticism, much of it stemming from a misunderstanding of what the Court had said. Conservative religious leaders attacked the decision for promoting atheism and secularism. Southerners saw Engel as proof of judicial radicalism. ‘‘They put the Negroes in the schools,’’ Representative George W. Andrews of Alabama lamented, and ‘‘now they have driven God out.’’ Senator Robert C. Byrd of West Virginia summed up the feelings of many when he complained that ‘‘someone is tampering withAmerica’s soul.’’
The Court had its champions as well as critics. Liberal Protestant and Jewish groups interpreted the decision as a significant move to divorce religion from meaningless public ritual and to protect its sincere practice. The National Council of Churches, a coalition of Protestant and Orthodox denominations, praised Engel for protecting ‘‘the religious rights of minorities,’’ while the Anti—Defamation League, a Jewish organization, applauded the ‘‘splendid reaffirmation of a basic American principle.’’
One year later the Court extended the Engel reasoning in Abington School District v. Schempp (1963), ruling that the establishment clause prohibited required reading of the Bible. A Pennsylvania law provided for the reading of at least ten verses of the Bible each day, as well as the recitation in unison of the Lord’s Prayer. In striking down the requirement, Justice Clark spoke of the ‘‘wholesome neutrality’’ of the Constitution toward religion, and set forth specific standards by which to judge whether the government had violated the First Amendment. To ‘‘withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.’’
Again, conservatives misinterpreted and attacked the Court’s decision, claiming that the justices had now expelled the Bible from school along with God. The Rev. Bill Graham professed that he was ‘‘shocked,’’ and claimed that ‘‘prayers and Bible reading have been a part of American public school life since the Pilgrims landed at Plymouth Rock.’’ Justice Clark, however, had made it quite clear that classes could still study the Bible as literature or as a religious document; it just could not be used for proselytizing purposes or in any manner that partook of a religious exercise.
A third case following Engel and Schempp also aroused the ire of religious conservatives. The conviction of John Scopes for teaching Darwin’s theory of evolution in 1927 had not reached the Supreme Court on appeal because the Tennessee high court had dismissed the case on a technicality. As a result, the antievolution statutes in Tennessee and other states had never been subjected to constitutional scrutiny. Finally, in Epperson v. Arkansas (1968), a unanimous Court, speaking through Justice Fortas, found the Arkansas antievolution statute in conflict with the establishment clause. ‘‘Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read.’’
Aside from the desegregation rulings, few decisions of the Warren Court aroused such public debate as those nationalizing the Fourth, Fifth, and Sixth Amendments, and then expanding their reach. These three articles of the Bill of Rights deal with criminal procedure and protect against arbitrary action by government officers. The Warren Court not only made these protections applicable to the states through the Fourteenth Amendment’s Due Process Clause, but also fortified the rights of accused persons when confronted by the power of the state.
The Fourth Amendment expressed the Framers’ opposition to the offensive practices of the British prior to the Revolution, and it governs how police may carry out one of their major responsibilities, gathering evidence during the investigation of crimes. While it sets limits on what the police may do, the amendment recognizes the legitimacy of reasonable search and seizure and does not erect insurmountable obstacles to that process. To secure a warrant, investigating officers need merely show ‘‘probable cause’’ and spell out with some precision the places to be searched and the type of evidence sought.
The Vinson Court had taken the step of applying the Fourth Amendment to the states in Wolf v. Colorado (1949). But the justices split, six to three, over whether the exclusionary rule, which had been the remedy for federal violation of the warrant since 1914, should also apply to the states. In his majority opinion, Justice Frankfurter argued that the exclusionary rule, as a judge—made remedy, did not constitute part of the Fourth Amendment and therefore could not be imposed by federal courts on the states. Justice Murphy dissented, claiming that the Fourth Amendment made no sense without the exclusionary rule; he saw the rule as implicit in the amendment.
When the Warren Court came to consider this issue again in Mapp v. Ohio (1961), it adopted Murphy’s argument. To say that the Fourth Amendment applied to the states, wrote Justice Clark, but to deny the only means of enforcing it, ‘‘is to grant the right but in reality to withhold its privilege and enjoyment.’’ Clark noted the controversy over the exclusionary rule and admitted that in some cases the criminal might go free because the police had blundered. But a higher consideration existed, ‘‘the imperative of judicial integrity.’’ The government had to set an example of fidelity to the law, for if its officers ignored the law, the public would eventually do so as well.
Chief Justice Warren delivered the Court’s eightto- one opinion in the other major Fourth Amendment case decided during his tenure, Terry v. Ohio (1968). An experienced police officer observed three men who appeared to be ‘‘casing’’ a store. He stopped them and, dissatisfied with their answers to his questions, frisked them. He found revolvers on two of the men and arrested them. Counsel for the men claimed that because the officer had no warrant, he had no right to search them, and that the revolvers could not be introduced as evidence. In a long and rambling opinion, the chief justice upheld the police officer, ruling that if the police had reasonable grounds and needed to act promptly, they could stop and frisk suspects without a warrant.
Public controversy over the Warren Court’s criminal cases dwelt less on its Fourth Amendment decisions than on how it interpreted the Fifth and Sixth. The Fifth includes what has sometimes been called ‘‘the Great Right,’’ that no person ‘‘shall be compelled in any criminal case to be a witness against himself.’’ The privilege came under heavy criticism during the red scare of the 1950s, as witnesses refused to answer Senator McCarthy’s questions on grounds of possible self—incrimination. ‘‘Taking the Fifth’’ became associated with communists, and critics charged that a truly innocent person should not hesitate to take the stand and tell the truth in criminal trials or before investigating committees.
The Court had taken an expansive view of this right since the latter nineteenth century. In Boyd v. United States (1886) and Counselman v. Hitchcock (1892), it had expanded the privilege against self— incrimination to apply to any criminal case, as well as to civil cases where testimony might later be used in criminal hearings. In 1967, the Warren Court expanded the concept of a ‘‘criminal case’’ to include juvenile delinquency proceedings in In re Gault. The privilege is not absolute; persons may not refuse to be fingerprinted, to have blood samples, voice recordings, or other physical evidence taken, or to submit to intoxication tests—even though all these may prove incriminating. But at a trial, the accused has the right to remain silent, and any adverse comment on a defendant’s silence, by either judge or prosecutor, violates the constitutional privilege.
Although an accused person may not be forced to testify, he or she may voluntarily confess, and the confession may be used in evidence. The old common law rule against confessions obtained by torture, threats, inducements, or promises had been reaffirmed as part of constitutional law by the Court in 1884. In modern times, the question of voluntariness had been refined, with the Court relying on the due process clauses of the Fifth and Fourteenth Amendments to prohibit not only physical torture but psychological brutality as well.
Beginning in 1964, the Court tied the Fifth Amendment privilege to the Sixth Amendment’s right to counsel, on the grounds that only if the accused had been properly informed of his or her rights, including the right to remain silent, could an ensuing confession be admissible. The key case was Massiah v. United States (1964). The defendant had been indicted for violating federal drug laws; he had retained a lawyer, pleaded not guilty, and been released on bail. Federal agents trailed Massiah and electronically eavesdropped on a private conversation, thus securing incriminating evidence that led to his conviction at the trial. The Court, through Justice Stewart, threw the verdict out; once the accused had a lawyer, the police could not use anything he said unless he had been advised by counsel as to the effects of those words.
Later that year, the Court ruled that the Fifth Amendment’s privilege against self—incrimination applied to the states (Malloy v. Hogan). Shortly afterward, in Escobedo v. Illinois, the Court overturned the conviction of Danny Escobedo because police would not allow him to see the attorney he had asked for until after they had secured a confession to the crime.
In 1966, a seriously divided Court handed down the landmark ruling of Miranda v. Arizona. Chief Justice Warren finally gave police and the lower courts a clear test to help them determine voluntariness. A person had to be informed in clear and unequivocal terms of the constitutional right to remain silent, and that anything said could be used in court. In addition, the officers had to tell the suspect of the right to counsel and that if he or she had no money to hire a lawyer, the state would provide one. If the police interrogation continued without a lawyer present, the chief justice warned, ‘‘a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self—incrimination and the right to counsel.’’ The four dissenters—Harlan, White, Stewart, and Clark—protested against replacing the flexible totality of circumstances approach with what they considered to be rigid and inappropriate rules.
The Miranda decision unleashed a storm of criticism of the Court for its alleged coddling of criminals, and some scholars shared the minority’s view that Miranda represented a radical break in which the Court had made a ‘‘new law and new public policy.’’ The more progressive police departments in the country, however, lost little time in announcing that they had been following similar practices for years, and that doing so had not undermined their effectiveness in investigating or solving crimes. Felons who wanted to confess did so anyway; in other cases, the lack of a confession merely required more efficient police work to find and convict the guilty party. As to charges that the decision encouraged crime, Attorney General Ramsey Clark explained that ‘‘court rules do not cause crime.’’ Many U.S. attorneys agreed, and one commented that ‘‘changes in court decisions and procedural practice have about the same effect on the crime rate as an aspirin would have on a tumor of the brain.’’
The right to counsel had been one of the first to be nationalized in Powell v. Alabama (1932). Ten years later, however, in Betts v. Brady the Court backed off, and declared that the Fourteenth Amendment had not incorporated the specific guarantees of the Sixth. A majority held that counsel for indigent defendants did not constitute a fundamental right essential to a fair trial. Rather, the justices would make a case— by—case inquiry into the totality of circumstances to see if the lack of counsel had deprived the defendant of a fair trial. Over the next twenty years, the Court heard many special circumstances and in most of the cases it determined that a lawyer should have been provided to ensure fairness.
In the great case of Gideon v. Wainwright (1963), a unanimous Court, speaking through Justice Black (who had dissented in Betts), did away with the cumbersome case—by—case adjudication and ruled that the presence of counsel was a fundamental right essential to a fair trial. The Court also took the unusual step of applying Gideon retroactively, so that states that had not originally provided counsel in felony cases now had to either retry the defendants properly, or, as often proved the case, with witnesses dispersed and evidence cold, let them go.
Gideon applied only to felony trials; not until 1972 did the Court expand the right to include misdemeanors as well. But in 1967, the Court did expand the right to counsel to include a far greater part of the criminal process. In United States v. Wade, the Court extended the right back to the lineup, ruling that the wording of the Sixth Amendment required the assistance of counsel from the time when the police investigation shifts from a general seeking after facts to an accusatory proceeding. The decision reflected the Court’s concern over growing evidence of the shoddiness and unreliability of police identification techniques. Later that year the Court extended the right in the other direction, past the determination of guilt to the sentencing phase of a trial in Mempa v. Rhay.
The whole rationale behind the Warren Court’s decisions in criminal cases reflected the belief that exercise of constitutional rights ought not to depend on a person’s wealth or education. Poor people have the same rights under the Constitution as the rich, but often they do not know about them. In Miranda and other cases, the Warren Court basically said that all Americans, at a minimum, have to know they have rights, and that police cannot trick them into forfeiting those rights by withholding that information.
The Court’s expansion of enumerated liberties encouraged litigation by parties with special interests hoping that the mantle of constitutional protection might spread even further. In the spring of 1965, the Court decided one of a handful of cases that can truly be said to have established a new area of constitutional law. In Griswold v. Connecticut, the Court resurrected substantive due process to establish a constitutionally protected right of privacy.
Various privacy rights existed within the common law, but often they were attached to property, such as in the old adage that ‘‘a man’s home is his castle.’’ In the United States, the law of privacy remained poorly defined; commentators believed that a right existed, but there was practically no case law on the subject.
The Griswold case involved an 1879 statute prohibiting the use of any drug or device to prevent conception and penalizing any person who advised on or provided contraceptive materials. New Haven officials prosecuted the executive director of the Connecticut Planned Parenthood League, along with one of the doctors in the League’s clinic who had prescribed contraceptives to a married person. Justice Douglas delivered one of the most creative and innovative opinions in his thirty—six years on the bench. Most of the references to privacy in earlier cases had relied on a liberty embodied in substantive due process, which in the mid—1960s still suffered from the bad odor of Lochnerism. Douglas did not want to invoke substantive due process, so he cobbled together justifications from various parts of the Bill of Rights. The amendments ‘‘have penumbras, formed by emanations from those guarantees that help give them life and substance.’’ These emanations together form a constitutionally protected right of privacy; and no privacy could be more sacred, or more deserving of protection from intrusion, than that of the marital chamber.
Justice Goldberg, joined by Brennan and the chief justice, concurred, relying on the rarely cited Ninth Amendment, which reserves to the people all nonenumerated rights. The right to privacy, Goldberg maintained, predated the Constitution, and the Framers intended that all such ancient liberties should also enjoy constitutional protection. Justice White concurred on due process grounds, while Justice Stewart dissented, claiming that the Court had exceeded the limits of judicial restraint. Stewart thought the statute ‘‘an uncommonly silly law,’’ but he could find nothing in the Bill of Rights forbidding it.
The dissent by Justice Black and Justice Harlan’s concurrence are of special interest because they illustrate two major theories of constitutional interpretation. Although Black advocated total incorporation of the Bill of Rights, he remained in many ways a strict constructionist; he would only incorporate those rights specified in the first eight amendments. He dismissed Goldberg’s Ninth Amendment opinion scornfully, declaring that ‘‘[e]very student of history knows that it was intended to limit the federal government to the powers granted expressly or by necessary implication.’’
Justice Harlan did not fear the idea of substantive due process and based his concurrence on that theme. Due process, he claimed, reflects fundamental principles of liberty and justice, but these change over time as society progresses. The Court has the responsibility of reinterpreting phrases such as ‘‘due process’’ and ‘‘equal protection’’ so that the Constitution itself may grow with the times. Harlan saw Black’s view as too rigid; both the states and the federal government needed the flexibility to experiment in means to expand the protection of individual rights.
Douglas’s result—the creation of a constitutionally protected right to privacy—and Harlan’s substantive due process rationale established the basis for the expansion of autonomy rights in the 1970s. Griswold is the forebear of Roe v. Wade (1973) (the case that legalized abortion) and many other cases enlarging personal freedoms. Griswold became the launching pad for the new substantive due process and a progenitor of the fundamental interest interpretation of the due process clause.
The activism of the Warren Court upset many people, including some who sympathized with the goals of its decisions. Activism on behalf of any program, critics charged, no matter how attractive, suffered from the same problems that had beset the Court during the Lochner era; judges ought to leave policy making to the political branches.
But one must always ask about any judicial opinion— did the Court get it ‘‘right’’? In some cases it is hard to tell, but the Warren Court produced a string of great cases matched by no other court in our history, not even that of John Marshall. In Brown v. Board of Education (1954), it struck down Southern apartheid; in New York Times v. Sullivan, it established freedom of press as a central component of American democracy, and took the idea of freedom of expression further than it had ever gone before; despite the controversy engendered by Engel v. Vitale and Abington School District v. Schempp, the Court’s insistence on a wall of separation between church and state clearly mirrored the intention of the framers; Gideon v. Wainwright is one of the foundation stones of American constitutional history, while Miranda v. Arizona provided the prophylactic test for how police may treat persons suspected of crimes; Griswold v. Connecticut established a right that nearly all Americans hold dear, the right of privacy; while Baker v. Carr (1962) and Reynolds v. Sims (1964) redrew the political map of the United States to ensure democratic representation. Some of these cases have drawn intense criticism, yet no one denies their great and lasting impact on American life. Moreover, despite the pledges of conservative presidents to undo the activist record of the Warren Court, nearly four decades after Earl Warren retired, all of these landmark opinions are still in force.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited