Butler, Thomas F., Jr.

Hayden, James J.

English

The Catholic University of America Columbus School of Law

Catholic University Law Review Volume 7 Issue 2 Article 5 1958 JUSTICE REED AND THE FIRST AMENDMENT-THE RELIGION CLAUSES. By F. William O'Brien, S.J. – A TREATISE ON THE LAW OF CONTRACTS BY SAMUEL WILLISTON. (Third edition by Walter H. E. Jaeger). Thomas F. Butler Jr. James J. Hayden Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Thomas F. Butler Jr. & James J. Hayden, JUSTICE REED AND THE FIRST AMENDMENT-THE RELIGION CLAUSES. By F. William O'Brien, S.J. – A TREATISE ON THE LAW OF CONTRACTS BY SAMUEL WILLISTON. (Third edition by Walter H. E. Jaeger)., 7 Cath. U. L. Rev. 117 (1958). Available at: https://scholarship.law.edu/lawreview/vol7/iss2/5 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. BOOK REVIEWSJUSTICE REED AND THE FIRST AMENDMENT-THE RELIGION CLAUSES.By F. William O'Brien, S.J. Georgetown University Press, 1958. Dis-tributed by Associated College Presses, New York. Pp. xi, 264. $5.00.He is a bold and adventurous person who elects to be the first to undertakethe analysis of the opinions and voting record of a jurist, particularly one such asJustice Reed, who sat on the Supreme Court not only for so long, but also duringsuch a revolutionary period. One's admiration for the daring adventurer is notdiminished by the fact that the area of initial exploration is advisedly kept withinnarrow boundaries. By concentrating primarily on opinions dealing with the re-ligion clauses of the First Amendment, Father O'Brien recognizes that discretionis the better part of valor.Stanley F. Reed took his place on the Bench of the Supreme Court of theUnited States on February 1, 1938. He retired on February 27, 1957, more thannineteen years later. Notwithstanding this long and distinguished career of service,Justice Reed has heretofore been quite generally neglected by writers of treatiseson the judiciary. Perhaps this is explained by the popular impression that JusticeReed was neither a liberal nor a conservative, and that he was not an exponent ofany particular philosophy of constitutional law attracting special attention.Admittedly based only on the limited area of this study, Father O'Brien reachesconclusions quite contrary to such popular impression. First, he submits thatJustice Reed's "opinions and voting habits have advanced rather than retarded thecause of genuine liberty." Second, he suggests that Justice Reed "has made asignificant contribution to the nation by his promotion of that all-pervasive plural-ism which characterizes American democracy."Constitutional law is a specialty with which one seldom comes to grips in dayto day law practice, and in the academic study of which a general practitionersuch as this reviewer has little time to indulge. In this instance, lack of even pass-ing acquaintance with most of the books listed in Father O'Brien's bibliographymust be confessed.There is consequently a strong inclination to say no more than words ofdeserved praise for the thorough research and disciplined objectivity of FatherO'Brien's honest and scholarly analysis, in Part I, of the cases dealing with freedomof worship and, in Part II, of the "no establishment of religion" cases in whichJustice Reed played an influential role. A noteworthy highlight is the long overduerecognition of the true worth of Justice Reed's opinion in McCollum v. Board ofEducation.' Father O'Brien's restrained yet glowing tribute to that most importantand realistic dissent is an outstanding feature of the book. And one may safelyadd that the material is excellently organized, reads easily, made to flow by para-graph headings a la John P. Marquand, and well indexed.At the same time, the urge persists to register reservations with regard to1 333 U.S. 203 (1948).CATHOLIC UNIVERSITY LAW REVIEWthe author's two major premises, which he has combined into one in the followingstatement: 2"Justice Reed ... appears to realize that there is a whole, as well as parts, in asocial community, that there are group interests as well as individual libertieswhich must be considered legitimate objects of governmental concern."True, on more than one occasion Justice Reed has taken issue with the con-cept that individual civil liberties must be protected, whatever the cost, in dis-regard of the resulting impact upon others and of the duty owing by any oneindividual to other individuals or groups. That is something quite different, how-ever, from the concept that the Constitution should be so interpreted that groups(presumably including corporations) have the same standing as individuals toclaim the protection of the "liberty" of the Fourteenth Amendment. Yet, as FatherO'Brien observes, the latter concept is implicit in Justice Reed's opinion in Kedrofiv. St, Nicholas Cathedral,8 where no individual's rights were alleged to have beenaggrieved.If the Kedroff decision, and the doctrine of Democratic Pluralism, mean thatgroups are to be recognized as "citizens" or "persons" under the Fourteenth Amend-ment in respect of such matters as freedoms of speech and press, and if groupsinclude incorporated bodies, then Justice Reed's constitutional philosophy is anotable development. If group rights are to be considered, then the group shouldhave standing to assert them in the first place. Whether it would be genuine lib-eralism, however, and a "significant contribution to the nation" to reinforce cor-porate claims to these guarantees, is something to ponder.To date, in such cases as Kingsley Books, Inc. v. Brown,4 corporations havesucceeded in claiming relief against local censorship laws under the First Amend-ment, via the due process route of the Fourteenth. Their standing to do so has notbeen seriously questioned, so far as this reviewer knows; yet their only possibleprecedent could be Grosjean v. American Press Co.' Unless a distinction is to bedrawn between freedom of speech and freedom of the press, rights which weredescribed in Grosjean (p. 244) as "of the same fundamental character," the valueof that case as authority seems to have been weakened by Hague v. C.I.O.,8 inwhich Chief Justice Stone (Reed, J., concurring) said:"As to the American Civil Liberties Union, which is a corporation, it cannot besaid to be deprived of the civil rights of freedom of speech and of assembly,for the liberty guaranteed by the due process clause is the liberty of natural,not artificial persons."The pluralism doctrine, full blown, suggests a backing away from Hague inthis respect. Next, consider the case of a corporation for profit, seeking to protectthe property interests of its shareholders, in contrast to that of an artificial entityacting for members whose personal rights are in reality involved. Whether such acorporation can rely on the due process clause of the Fourteenth Amendment, byreason of some claim of indirect deprivation of property, as the stepping stone toresort to the First Amendment in free speech or free press cases is, of course, a2 Mr. Justice Reed and Democratic Pluralism, 45 GEORGE. L.J. 364, 386 (1957).8344 U.S. 94 (1952).4354 U.S. 436 (1957).5 297 U.S. 233 (1936).8 307 U.S. 496, 527 (1939).[Vol. VIIBOOK REVIEWquestion outside of Father O'Brien's prescribed field of study. Does the doctrine of"Democratic Pluralism," however, call for an affirmative answer?Closely related is the question whether all sections of the Bill of Rights wereintended to be integrated verbatim into the Fourteenth Amendment, rather thanonly such rights as the Court may consider to be embraced by the due processclause.' In this connection, too, it is to be recalled that Mr. Justice Black on severaloccasions (e.g., Connecticut General Life Ins. Co. v. Johnson," has maintained thatthe word "person" in the Fourteenth Amendment does not include corporationsfor any purpose, even as to the guarantee against the taking of property withoutdue process. A thorough study of these three related subjects is a project whichmight well command the interest and support of an organization such as TheFund for the Republic.THOMAS F. BUTLER, JR.*A TREATISE ON THE LAW OF CONTRACTS BY SAMUEL WILLISTON.(Third edition by Walter H. E. Jaeger), Mt. Kisko, New York. Baker,Voorhis & Co. Volume I. Pp. 826. $20.50.Professor Jaeger has made an excellent beginning in the publication of Vol-ume I of Williston on Contracts. It is contemplated that it will require abouttwelve volumes to complete this Third Edition.Time brings changes in style and arrangement in legal publications as wellas in other fields of printing. Among the important improvements in the ThirdEdition, Professor Jaeger has simplified the statements of principle, reduced thelength of sentences, added recent decisions while eliminating some of the oldercases, cited more material from legal periodicals, and statutes, and emphasizedmodern trends in the development of contract law. The Index has been improvedmaterially and provides quick reference to the subject matter.Chapter I is devoted to the definition of terms presented in more readablefashion. Chapter II is brief and deals with the requisites of informal contracts,including requirements for their formation, the element of legality, and matters ofconsent and intent of the parties. Chapter III contains a comprehensive treatmentof the making of offers, and includes a considerable amount of new materialdeveloped since the last revision. Chapter IV concentrates on the duration andtermination of offers, including a discussion of options and the rights and obliga-tions incident thereto. Chapter V is likewise detailed and covers the acceptanceof offers. Emphasis has been placed upon explanatory notes, and upon the moderndevelopments in such matters as withdrawing letters from the mail, the use of tele-phone and teletype in making contracts and the rulings of courts in such situations.Chapter VI deals with problems of consideration. Beginning with the commonlaw background the chapter presents a thorough treatment of the subject, showingmodern trends in the application of traditional doctrines. Chapter VII presentsan interesting study of promises without mutual assent or consideration. It begins7 For a recent lively discussion of this problem, see Arthur John Keeffe, Comments onthe Supreme Court's Treatment ot the Bill of Rights in the October 1956 Term, 26 FoRn-HAM L.R. 468-505 (1957).8303 U.S. 77, 83 (1937).* Member of the Ohio Bar.19581CATHOLIC UNIVERSITY LAW REVIEWwith a discussion of gratuitous undertakings, equitable estoppel and promissoryestoppel, and continues with the traditional topics treated in earlier editions of thebook. Chapter VIII is a brief but adequate consideration of the formation offormal contracts, the use of the seal originally and the changes by rule or statutein the use of the seal on contracts of every description. The effects of the seal, theneed for sealed authority of the agent, the use of modern recognizances, penal bonds,governmental and private bond issues, and the negotiable instruments which forma part of the law affecting investment securities are placed in proper relationship.Williston's great work in the field of contracts has been outstanding in thiscentury. Professor Jaeger's Third Edition of this indispensable publication hasadded lustre to the two earlier editions and will be as important to the presentgeneration of practitioners and law teachers as either of the earlier printings ofthis internationally known statement of the law of contracts.JAmEs J. HAYDEN.** Professor of Law, Georgetown Law Center.

JUSTICE REED AND THE FIRST AMENDMENT-THE RELIGION CLAUSES. By F. William O\u27Brien, S.J. – A TREATISE ON THE LAW OF CONTRACTS BY SAMUEL WILLISTON. (Third edition by Walter H. E. Jaeger).

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JUSTICE REED AND THE FIRST AMENDMENT-THE RELIGION CLAUSES. By F. William O\u27Brien, S.J. – A TREATISE ON THE LAW OF CONTRACTS BY SAMUEL WILLISTON. (Third edition by Walter H. E. Jaeger).

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