Howard, Woodford

English

Duke Law Scholarship Repository

DUKE LAW JOURNAL19602 in England, an outgrowth of the Nathan Committee Report,awas directed at involving a central governmental agency in increas-ing the effectiveness of charitable endeavors. Although it is tooearly to evaluate the impact of the legislation, the experience of bothEngland and Canada should be useful to the federal and state gov-ernments of this country as the inevitable trend toward closer super-vision and scrutiny continues.Government, at both the state and national levels, now pro-vides increased welfare assistance in a greater variety of forms thanever before. As a result we are experiencing a new political andsocial phenomenon in which government and private charity some-times complement, sometimes duplicate, one another in similarcharitable activities. The resources involved in these activities inthese times are massive. Moreover, the opportunities for abuse insolicitation, in operation, in acquiring improperly tax benefits andother subventions at the state and national level make demonstrablyclear the importance of institutional mechanisms for proper protec-tion of the public and for the effective fulfillment of the charitablepurpose.4 The need, therefore, for a proper ordering of: theseimportant functions in a complex society becomes ever more press-ing. Mrs. Fremont-Smith's final'chapter: "Prospects and Retommen-dations" is well worth thoughtful examination and reflection as 'oneconsiders the problems:raised in this most difficult area.CHARLES 0. GALVIN*MR. JUSTICE MURPHY AND THE BILL OF RIGHTS. Edited by HaroldNorris.t Dobbs Ferry, New York: Oceana Publications, Inc.,1965. Pp. xxiii, 568.It is my unhappy duty to report that this is a disappointing book.The difficulty is not that the subject is unsuited for book-length2 Charities Act, 1960, 8 & 9 Eliz. 2, c. 58.3 COMMITEE ON LAW AND PRACTICE RELATING TO CHARITABLE TRusrs, REPORT (1952).'See House Select Committee on- Small Business, Chairman's (Patman) Report,87th Cong., 2d Sess. (1962); TREASURY DEPARTMENT, REPORT ON PIVATE FOUNDATIONSsubmitted to Committee on Ways and Means, 89th Cong., 1st Sess. (1965).* B.S. 1940, Southern Methodist University; M.B.A. 1941, J.D. 1947, NorthwesternUniversity; S.J.D. 1961, Harvard University. Dean and Professor of Law, SouthernMethodist University.- A.B. 1939, M.A. 1941, University of Michigan; LL.B. 1948, Columbia University.[Vol. 1966: 859BOOK REVIEWStreatment. Justice Murphy was one of the modern Supreme Court'smore colorful chaacters; and though controversial, because he per-ceived of civil liberties problems less as a lawyer than as a moralist,so many of his libertarian protests have been vindicated by sub-sequent decisions that a reappraisal of his civil liberties contribu-tions is certainly in order. This is the first book to appear concerningJustice Murphy's judicial career. Unfortunately, it fails its subject,both conceptually and in execution.The central flaw is an unclear focus. In format, the book is anedited volume containing over seventy opinions by the Justice, afew of his speeches, excerpts from commentaries, and introductoryessays by the author which are designed to link these materials tocurrent issues. The author's purpose is frankly polemical. "JusticeMurphy's opinions taken together constitute a tract of our times,"he asserts.1 By reprinting them, he hopes to enlist the "moral pas-sion and intellectual fervor of Justice Murphy's defense of civilliberties" in the cause of citizenship education of lawyers and lay-men, and to accord Murphy himself "a degree of recognition moreproportioned to his contribution .... "2 There is insight here, becauseJustice Murphy was a gifted evangelist. He entered the high courtcalling it a "Great Pulpit"; and his best known opinions, such ashis dissents in Korematsu v. United States3 and In re Yamashita,4stung the moral conscience of contemporaries. Nevertheless, theresults are mixed. Nowhere does the author attempt to "flesh out"Murphy as a person or his credentials for such a role. Nowhere doeshe analyze the actual influence of Murphy's opinions on currentlibertarian judges or whether the similarity of view is only inci-dental. Nowhere is there a critical evaluation of his work, beyondexcerpts from commentaries by Thurgood Marshall, Archibald Cox,and others, which were written shortly after his death in 1949.Opinions, in the main, are left to speak for themselves.This method works well enough in subjects such as criminalprocedure and equal protection in which the Justice was assigned asufficient number of cases or wrote sufficient dissents to elaborate acomplete position. The method works less well in subjects such as1 NoRms, MR. JUSTICE MURPHY AND THE BILL OF RIGHTS 1 (1965).Id. at xvi, xv.323 U.S. 214 (1944).'327 U.S. 1 (1946).Vol. 1966: 859]DUKE LAW JOURNALthe first amendment, in which Murphy wrote peripherally or notat all. Since opposing opinions are not included, the reader mustdepend on the introductory essays for orientation; and gaps in-evitably result.The most frustrating of these gaps concerns church-state rela-tions. Frank Murphy was not only the first Roman Catholic whoseappointment to the Supreme Court rested explicitly on religiouscriteria; he was the Court's most experienced member in dealingwith the problem, the first Catholic Justice to interpret the estab-lishment clause directly, a devout Catholic who advanced a prag-matic Jeffersonianism toward the difficult issues of public policyraised, the swing-man in Everson v. Board of Education, and ajudge who felt so deeply about the McCollumc decision that he or-ganized clerical rebuttals to the intemperate criticism of a RomanCatholic Cardinal.7 The author could have enlightened us aboutthese matters had he drawn upon the Justice's papers at the Univer-sity of Michigan. Instead, his reliance upon published opinionsforces him to use the writings of other Justices and to conclude,inexactly, that "Justice Murphy's stress was on the 'freedom of re-ligion,' clause and not so much on the 'establishment clause.' "8Finally, the inevitable unevenness of the method is accentuatedby including in the introductory chapters, materials about morerecent civil liberties issues, such as loyalty programs, which havelittle relation to Murphy as a jurist. Apparently, the book is in-tended to serve as a kind of civil liberties reader with Justice Mur-Phy's opinions as a springboard to contemporary issues. For thereader, however, it lacks the scope and fluency of the Emerson andHaber collection; 9 and the causal links between Justice Murphyand current issues are insufficiently drawn.The conceptual weakness is aggravated by deficiencies in editing.The materials not only contain errors, but present Murphy as alibertarian purist without mentioning "the other Murphy," whichmade him such an enigmatic and interesting character. The reader330 U.S. 1 (1947).C McCollum v. Board of Educ., 333 U.S. 203 (1948).See case materials in MURPHY, PAPERS, on file Michigan Historical Collections,University of Michigan.8 NoRRs, op. cit. supra note 1, at 159-75." EMERSON & HABER, POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES (2d ed.1958).[Vol. 1966: 859BOOK REVIEWSdoes not meet the Murphy whose earliest political allies were theAmerican Legion, William Randolph Hearst, and Father CharlesE. Coughlin. There is no hint of the Attorney General Murphywho provoked a political storm and a personal clash with SolicitorGeneral Robert H. Jackson by vigorously prosecuting alleged spiesand alien propagandists in 1939, the Murphy whom cabinet col-leagues predicted would be the first New Deal Justice to go con-servative, or the "libertarian" who was capable of writing FBIChief J. Edgar Hoover after he arrived on the bench: "Unless weare pudding-headed we will drive from the land the hirelings whoare here to undo the labors of our Fathers."'1 The author quotesCharles A. Beard's tribute to Murphy's civil liberties contributionsas a politician, but not Beard's public retraction of same for Mur-phy's alleged witch hunting in the Detroit Loyalist prosecutionsof 1939.11 In three separate places the author repeats a "damning-by-faint-praise" memorial by Chief Justice Fred M. Vinson, but at-tributes it to Chief Justice Harlan F. Stone-who had been dead forover four years!'2In sum, the foregoing criticisms are not meant to imply that thebook lacks positive values. The opinions themselves are a usefulcompilation for those without a legal library; and if fairly read, theyshould go far toward refuting professional myths that Murphy wasall evangelist and technically incompetent as a lawyer. Libertariansand Murphy buffs will be glad to see inclusion of a few pre-Courtspeeches on libertarian themes, though they might wish for more.Especially is this so of the addresses on religious toleration directedto Catholics and Father Coughlin's movement, in which Murphyrose to great heights as an orator-polemicist.'3 The author's intro-10 See GERHARDT, ROBERT H. JACKSON: AMERICA'S ADVOCATE 161-98 (1958); 3 ICKES,THE SECRET DIARY OF HAROLD L. ICKES 70 (1954); Letter from Frank Murphy to J.Edgar Hoover, Sept. 7, 1940, on file Box 92, MURPHY, PAPERS, Michigan HistoricalCollections, University of Michigan.II NoRuus, op. cit. supra note 1, at 61-62 n.1. Cf. Letter from Charles A. Beard toArthur Krock, N.Y. Times, April 3, 1940, p. 22, col. 6.2 NORRIS, op. cit. supra note 1, at xv, 3, 12. The memorial is found in 340 U. S.xx, xxiv (1951).'8 See, e.g., MURPHY, Democracy and Religious Freedom; Irish-Americans and theNew Fight for Freedom, SELECTED ADDRESSES OF FRANK MURPHY, GOVERNOR OF MICHIGAN69-75 (1938); Address by Frank Murphy, "The Challenge of Intolerance," 91 CONG.REC. pt. 2, 81-82 (App. 1945); Address by Frank Murphy, "Interdependence forAmericans," 91 CONG. REC. pt. 12, 3886 (App. 1945); Murphy, The World We'reComing To, 42 COMMONWEALTH 398 (1945).Vol. 1966: 859]870 DUKE LAW JOURNAL [Vol. 1966:'859ductory essays are solid and workman-like, and the opinions do carrycontagious libertarian conviction. A teacher so inclined might wellfuse these materials into an effective vehicle for civil liberties dis-cussion groups. Of itself, however, the book is incomplete as atract and unconvincing as an encomium to Mr. Justice Murphy.WOODFORD HOWARD** Assistant Professor of Political Science, Duke University.

Norris: Mr. Justice Murphy and the Bill of Rights

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Norris: Mr. Justice Murphy and the Bill of Rights

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