Woods, Winton D.

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 43 | Issue 4 Article 10Summer 1968Civil Rights, the Constitution and the Courts, byArchibald Cox, Mark DeWolfe Howe, and J.R.WigginsWinton D. WoodsUniversity of ArizonaFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and theCourts CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationWoods, Winton D. (1968) "Civil Rights, the Constitution and the Courts, by Archibald Cox, Mark DeWolfe Howe, and J.R. Wiggins,"Indiana Law Journal: Vol. 43: Iss. 4, Article 10.Available at: http://www.repository.law.indiana.edu/ilj/vol43/iss4/10INDIANA LAW JOURNALLawyers and Their Work is an important, useful, and challengingbook. It provides a wealth of material presented in a straightforwardway. While the authors interviewed 400 people, the respondents were"informants" rather than a scientifically selected sample. These respon-dents are important to the book, especially as examples, because a goodportion of it depends on their statements, but no claims are made thatthe interviews are representative. The senior author, because of hisknowledge of the legal profession and his expertise in real property law,is especially qualified in two of the significant areas covered in thiswork. Together the authors have questioned the existing norms of thebar associations, stirred up controversy, and asked for reconsiderationof legal practices in this country. This combination of pure informationand stimulating speculation should be of immense value to lawyers andstudents of law who are seriously concerned with the legal profession.ERwIN 0. SMIGELtCIVIL RIGHTS, THE CONSTITUTION AND THE COURTS. By Archibald Cox,Mark DeWolfe Howe, and J. R. Wiggins. Cambridge, Massachu-setts: Harvard University Press, 1967. Pp. 76. $2.95.This little book of seventy-six pages was in a sense an anachronismeven before its publication in 1967. The murder of Dr. Martin LutherKing, Jr., on April 4th of this year may well have cast it upon the sea ofhistorical relics. Save for the paper by the late Mark DeWolfe Howe, thebook is little more than a view of what might have been.In the opening paper, Professor Archibald Cox focuses his attentionon "Direct Action, Civil Disobedience and the Constitution." The ques-tion Professor Cox seeks to answer is whether or not the activist wing ofthe civil rights movement will lead us closer to justice for all. He notesthe existence today of a major block of people who believe that civildisobedience of unjust laws is the only viable road to reform. In opposi-tion to that position, he of feris what I would assume he considers a rhetor-ical suggestion, that the widespread use of civil disobedience has under-mined the charismatic foundation of American law.At the outset Professor Cox seeks to define with a lawyer's particu-larity the general terms "direct action," "civil disobedience," and "non-violent action." Unfortunately, the definitions, as is so often the case, be-come the argument. Immediately dismissed are what he considers to bet Chairman, Department of Sociology, New York University.976BOOK REVIEWSthe polar aspects of civil disobedience. The first, the validity of the dis-regard of the commands of civil authorities that clearly infringe a rightguaranteed by the Constitution of the United States, is accepted by Coxwithout question. The second, which Professor Cox categorizes as"direct action" which violates a "plainly valid" law, is viewed as imper-missible. In the middle remains the area of debate and concern. ThoughProfessor Cox has made a substantial effort, it is plain that he, as othersbefore him, has woefully failed to clarify the middle.There are few if any who would seriously disagree that the inten-tional disobedience of a plainly unconstitutional law is intellectually andphilosophically commendable. Beyond that, however, the agreement or dis-agreement with various forms of direct action necessarily depends uponthe viewpoint of the actor. When Professor Cox asserts that "one can saycategorically that there is no constitutional right of civil disobedience toa valid law,"' one can in response say categorically that Professor Coxhas begged the question. The question, of course, is what is a "valid law"?It is inferentially suggested that an answer to that question can be foundby drawing a dubious distinction between legal validity and moralvalidity. As I read this paper, Professor Cox assumes that the intentionaldisobedience of a law which one cannot seriously say is legally invalid mustbe condemned. That may have been the issue in 1965 when the presentpaper was given before the Massachusetts Historical Society. It dearly isnot the issue now. The focus of American young people today is uponthe moral validity of laws which affect them directly. The new morality,about which Henry David Aiken has written so articulately,2 commandsobedience first to one's conscience and then to civil society. The plight ofthe ghetto Negro and Spanish American and the plight of the white poorand the American Indian, has touched the conscience of the young of thisnation, and they have made it plain to those of us who have passed thegolden age of thirty that they will bring this country to its knees beforethey will join the Establishment on its terms.' The issue now is no longerone of the rightness or morality of their action. Direct disobedience of"valid laws" is an established continuing fact about which moralizationis an exercise in futility. The issue can be answered only upon the basisof an a priori judgment about that morality. Such an answer, of course,is not subject to meaningful debate-it depends by definition upon theviewpoint of the believer.The larger issue, and the one to which Professor Cox does not1. A. Cox, M. HOWE & J. WIGGINS, Civi RIGHTS, THE CONSTITUTION AND THECOURTS 10 (1967).2. Aiken, The New Morals, Huwzp's, Feb. 1968, at 58.3. See, e.g., Oglesby, A Program for Liberals, RAmPARTs, Feb. 1968, at 20.977INDIANA LAW JOURNALaddress himself, is the public-spirited lawyer's problem of preserving ourinstitutions in the face of open rebellion. Civil disobedience of ProfessorCox's "plainly valid law" is a sad but simple fact of life in 1968. Theissue to which lawyers must address themsleves is: what can and must bedone to preserve for all the benefits of an organized society?The answer demonstrably lies in the word "communicatibn."The young, middle-class, white drop-out who has rejected contemporarysociety; the young, black militant; the migrant farmworker; and theprosperous but concerned college student have something meaningful toGay. Their dissatisfaction and, I suspect, the basis of their "direct action"lies in the fact that the "Establishment" will not listen to them. If onereads Ramparts, the Village Voice, or any of the various "underground"papers that have emerged throughout the country, it will become plainthat those journalistic endeavors are directed to the "true believer" aloneand proceed from the assumption that the "power structure" does notlisten and will not hear.Black militants have in the last few years developed and espousedthe concept of "black awareness."4 Yet the National Advisory Com-mission on Civil Disorders has rejected the most basic tenets of thatproposition and has, as least for black people, continued to assert theefficacy and moral validity of traditional welfare systems, integration,and urban renewal.' But all one must do to discover the patent unwork-ability of continuing "the system" while rejecting out of hand the newproposals is to talk to the young leaders in the black ghettos of thisnation. One can there see that a substantial number of black people inAmerica no longer wish to be white. Natural haircuts, African clothingand a concern with "black awareness" now permeate the ghetto anddemonstrate the attempt to legitimatize the black American. Those youngpeople no longer want to become a part of what is in their view amorally bankrupt white society; rather they wish to develop black society,economically, spiritually, and culturally and to do it on their terms. Untilwe understand and, react realistically to the demands now being madeupon us, we cannot reasonably expect that violent civil disobedience willend. Certainly, the concern with the morality of violence became painfullyacademic in Watts; it remains academic today.The more affluent, but equally disenchanted, white youth sufferequally from a failure of communication. The hippies, the yippies, and theBerkeley activists cannot be dismissed by America's elders as a passing4. See J. BALDWIN, THE FIRE NEXT TIME (1963); S. CARMICHAEL & C.HAmILTON, BLACK POWER: THE POLITICS OF LIBERATION (1967); WRIGHT, BLACKPOWER AND URBAN UNREST (1967); Lasch, The Trouble with Black Power, N.Y. REv.OF BooKs, Feb. 29, 1968, at 4.5. REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS, Ch. 17.BOOK REVIEWSphenomenon. The movement of some of America's brightest young peopletoward a total rejection of American society is not a fad, but is rather anintensely ethical movement-an almost total rejection of the moralfoundation of the American middle class. A substantial number of youngpeople today exhibit no desire to own a color television set, an expensiveautomobile, a fancy house in the suburbs, or any of the other statusimpedimenta that have "made America what it is today." Instead, theyseek a moral justification for the economic amelioration of our cultureand find none. They have rejected the Calvinist ethic and substituted aconcept of love and brotherhood, decidely Christian and mystical in itscast. They cannot be preached to but they can be listened to if someonewill listen and hear.Professor Cox closes his paper with the following view:[t]he hope of mankind is always that a new generationmay begin to make the world over quickly. The wrong, in thesimplest terms, is the damage to the foundation upon whichrests the best, if not the only, real opportunity for the making-over.6Few would disagree with Professor Cox's observation. The problem liesnot in its intellectual validity but in its failure to recognize the existencein today's society of an articulate and powerful group of young peoplewho would say to Professor Cox that the foundation he seeks to preserveis not worth preserving if its moral underpinnings are not open to discus-sion. The answer to that challenge lies in the establishment of a dialogue-the opening of issues and the discussion of problems confronting theyoung, sometimes affluent, but woefully unhappy youth of our society.The second essay in the book, by the late Mark DeWolfe Howe,touches upon the deeply historical roots of the violence and immoralitythat are sweeping our country:[t]he southerlies are still blowing. They have told us ofthe killing of Medgar Evers, William Moore, James Reeb,Andrew Goodman, James Chaney, Michael Schwerner, LemuelPenn, Viola Liuzzo, and Jonathan Daniels. They brought usthe names of others, but those others we have forgotten becausethey were merely four little children at church in Birmingham.The breezes from the South have told us these ugly tales, butthey have not spoken of convictions of the guilty. They tell us,instead, of murders, acquittals, mistrials, and local pride.76. A. Cox, M. Hoxw & J. WIGGINS, supra note 1, at 29.7. Id. 31.979INDIANA LAW JOURNALWith that invocation Professor Howe sets for himself the task of identi-fying and illustrating the invalidity of "the concept which, above allothers, has served to incapacitate the nation's conscience."' To achievethat goal Professor Howe delves with his customary finesse into thedepths of American legal history and in so doing demonstrates thatperhaps the only real discipline of our day is the study of history.The history of the black man in America has been far from happy.Our nation was born into a moral-legal dichotomy: the acceptance of thelegality of slavery and the rejection of its asserted morality. Thatpluralism is demonstrated by the pronouncement of Lord Mansfield that"the state of slavery . .. is so odious, that nothing can be suffered tosupport it, but positive law."9 From that beginning, Professor Howetraces the history of American constitutionalism as it has affected theissue of slavery. The crux of his article is his discussion of the Recon-struction legislation where he shows that the original legislation passedby the Congress to protect the rights of black Americans was not limitedby the concept of "state action" which has so hindered and obsessedAmerican courts and scholars. Congress, Professor Howe asserts, "want-ed to make sure that the institution and the badges of inferiority withwhich it had degraded the Negro should be wholly eradicated."" To doso it passed the Civil Rights Act of 1866, vetoed by President AndrewJohnson and then passed over the veto.The historical difficulty arises because the framers of the Recon-struction legislation were cautious and conservative men. In order toassure the constitutionality of the Equality Act of 1866, the fourteenthamendment to the Constitution was proposed. The result of that in-discretion is now a well-known part our constitutional history. Thecivil rights cases in 1883 forgot the thirteenth amendment backgroundof the Equality Act (which had in 1870 been transposed to the center ofa new civil rights act) and held that the prohibitions against discrimina-tion therein contained were limited by the requirement of "state action."As Professor Howe demonstrates beyond doubt that incorrect decisionhas been the basis of the continuing polemic over the power of theAmerican Congress to regulate the affairs of private men engaged inprivate discrimination and indeed private murder. The absurdity of thatproposition, however, does not deter the racial terrorists who seeminglypopulate this nation in increasing numbers. Although the Supreme Courthas continually refused to face squarely the issue of state action, it is8. Id.9. Id. 32 (quoted from The Case of James Sommersett, 20 How. State Trials 2,82 (1772)).10. A. Cox, M. HowE & J. WIGGINS, opra note 1, at 47.BOOK REVIEWSindeed possible that it may do so this term in a case presently pendingbefore the Court." If it does reconsider the efficacy of the doctrine andits application to the Civil Rights Act of 1870, it cannot ignore ProfessorHowe's scholarship; acceptance of it would indeed be a fitting legacy toone of America's great legal scholars.So ends the little book, though there is in the last nineteen pages anessay by one J. R. Wiggins entitled "The Press and the Courts." Mr.Wiggins is a reporter and his essay is directed to the asserted right of anewspaper to convey to the American public a picture of criminal justice.The thrust of Mr. Wiggins' article, though it is indeed covered over witha great many libertarian platitudes, is to be found in the followingparagraph:[t]he plain truth of the matter is that the newspapers donot print enough crime news; they do not follow closely enoughthe conduct of the police, the operation of the courts, theadministration of penal institutions, the functioning of the pro-bation system-or any other aspects of society's handling ofthe whole enormous problem of crime. 2Few would doubt the desirability of creating a public dialogue about ourpenal system, but Mr. Wiggins is not content to stop there. He wantsincreased news coverage at all steps of the criminal process and hisresponse to the publication of the Reardon Report indicates that concern:[s] ince this paper was written the Reardon Committee ofthe American Bar Association has issued its report, Fair Trialand Free Press.The recommendations of this committee, if carried intoeffect, would diminish public scrutiny of the law enforcementprocess. As James Bryce pointed out in 1893: "Democratictheory, which has done a mischief in introducing the electivesystem (for judges) partly cures it by the light of publicitywhich makes honesty the safest policy." If this light of publicityis shielded and obstructed enough fully to protect the accusedit will be darkened enough fully to protect corruption, mal-practice, and fraud in the law-enforcement process.'3At bottom, I suspect that Mr. Wiggins is only advocating the nowtimeworn assertion that the right of a newspaper to make a trial publicis constitutionally protected. I would view the matter as cutting the other11. See Petitioner's Brief for Certiorari at 23-39, Jones v. Meyer, 379 F.2d 33(8th Cir.), cert. granted, 389 U.S. 968 (1967) (No. 645).12. A Cox, M. HowE & J. WIGGINS, supra note 1, at 57.13. A. Cox, M. HoxwN & J. WIGGINS, .upra note 1, at 76 n.9.982 INDIANA LAW JOURNALway and protecting the right of the defendant to have, or prevent, apublic trial as he sees fit. It seems somehow incongruous to assert thatthe right to a public trial cannot be waived by an intelligent and informedcitizen. That, in sum, is the implication of Mr. Wiggins' paper.This book is, as I noted above, a book about what might have been.In the sadness of this April, however, it can be read by men of good willand concern and found to be thought-provoking but terribly sad. It is alawyer's book written for laymen and deserves to be a part of everylibrary.WINTON D. WooDs JR.ttAssistant Professor of Law, University of Arizona.

Civil Rights, the Constitution and the Courts, by Archibald Cox, Mark DeWolfe Howe, and J.R. Wiggins

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Civil Rights, the Constitution and the Courts, by Archibald Cox, Mark DeWolfe Howe, and J.R. Wiggins

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