Fraenkel, Osmond K.

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Notre Dame Law ReviewVolume 36 | Issue 1 Article 312-1-1960Recent Books on Civil LibertiesOsmond K. FraenkelFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationOsmond K. Fraenkel, Recent Books on Civil Liberties, 36 Notre Dame L. Rev. 42 (1960).Available at: http://scholarship.law.nd.edu/ndlr/vol36/iss1/3RECENT BOOKS ON CIVIL LIBERTIESOsmond K. Fraenkel*THE PEOPLE AND THE COURT. By Charles L. Black, Jr.New York: The Macmillan Co., 1960. Pp. 238. $5.00.POLITICAL FREEDOM. By Alexander Meiklejohn.New York: Harper Bros., 1960. Pp. 166. $3.50.AMERICAN RIGHTS. By Walter Gellhorn.New York: The Macmillan Co., 1960. Pp. vi, 232. $4.50.THE SUPREME COURT AND CIVIL LIBERTIES. By Osmond K. Fraenkel.New York: Oceana Publications, Inc., 1960. Pp. vii, 173. $1.50 (paper).I have selected these four books because they form a progression from thegeneral to the particular. The first is an analysis of and a defense of the doctrineof judicial review, particularly in its relation to the Bill of Rights; the secondis a philosophical study of the First Amendment's guarantee of freedom ofexpression; the third is an account of how the courts have dealt with recentcivil liberties issues; and the last is a bare recital of all civil liberties cases de-cided by the United States Supreme Court in the last 25 years, with mentionalso of the most important earlier ones. Since this last work is by me, I willsay no more about it than that it was intended to be wholly noncommittal-only in the starring of the cases listed at the end have I permitted myself anyeditorial expression. And that relates only to whether or not the asserted claimof liberty was upheld by the Court.Professor Black's book, on the other hand, lays no claim to being dis-passionate. He strongly believes in the importance, indeed the necessity, of havinga court of last resort which will decide conflicting claims with regard to the con-stitutionality of laws or other governmental action. He takes the original posi-tion that the function of such a court is not merely negative, in declaring whatmay not be done, but also affirmative, in legitimizing what has been done.While the book is in no way restricted to civil liberties matters, the author dwellsat length on them.Professor Black is intolerant of the view that judges should exercise "selfrestraint" in their constitutional rulings. He sharply criticizes Professor Thayerfor his expression of that view and claims that the authorities relied on byThayer in no way support the conclusion that judges must uphold congressionalaction if sustainable by any rational consideration.1Black's view is that the attitude of the judges must vary with the characterof the constitutional provision they are called upon to expound. Where theConstitution contains a grant of power, it should be liberally construed so asto permit the government to be effective. But insofar as it contains a positivrestriction on power-as, especially, in the Bill of Rights-the restriction shouldbe liberally construed lest a narrow construction deprive the restriction of vi-tality. He constantly reminds the reader that the purpose of a restriction is tohobble the legislature. He is scornful of the notion that the hobbling should be* A.B., LL.B., General Counsel, American Civil Liberties Union.1 BLACK, THE PEOPLE AND THE COURT 193-209 (1960).BOOK SURVEYreduced to what might seem agreeable to current opinion or reasonable in thelight of particular circumstances. He stresses, moreover, the fact that theserestrictive provisions "inscribe our highest political ideals.".... If we construe them away, laughing behind our sleeves atthe "perfectly legal" legerdemain with which the trick has beenmanaged, we construe away the dignity and worth of our nation.If we use the weapons in the arsenal of legal technicality to cutthem down to mere historical curiosities, niched images for hastygenuflection and disregard, then our talk of "liberty" and "justice"is merely disgusting; we can at best hope to defraud others for awhile, as we play the most dangerous of games - that of defraudingourselves.2The notion that political processes can take care of the guarantees of theBill of Rights is pure illusion-those who have least political power have mostneed to invoke the guarantees. He rejects the claim that there is an incon-sistency in deploring the "due process" decisions of the "old" Court whileapplauding the Court when it upholds civil liberties. For the earlier Court waswrong in giving to "due process" a "wild" rather than a broad construction.And he says:These matters have been perplexing because of the background,prior to the middle thirties, of excessive judicial solicitude for theinterests of business and for the preservation of the laissez-faireprocess. A strong and tenacious presumption of constitutionality isjustified in cases of this type. The extension of due process to pre-vent economic regulation was a tour de force to begin with; itsjustification ran to the effect that to take away a man's or a com-pany's property, or to limit the free use of that property, withoutany rational basis, was "confiscatory," "arbitrary," and hence denieddue process of law. The showing of the absence of a rational basiswas thus a vital part of the bringing of a case of this sort underthe due process clause. Beyond question, a court should assume thatlegislation has a rational basis until the contrary clearly appears;that is one concrete meaning which most of us would give, I shouldsuppose, to the concept of deference to the legislative branch. No-toriously, the old Court did not in practice, at least in many cases,actually indulge this assumption; indeed, it nullified legislationwhen a rational basis was rather clearly shown.This led many people to cry for a return to a "presumption ofconstitutionality." In context, what they pretty surely meant wasa return to the presumption that legislation had a rational basis -that it bore some arguable relation to a permissible social end. Butthey expressed their protest in general terms that plague us today.For all this has no application (to continue our example) tothe problem of free speech. It doesn't make any difference whethera law "abridging the freedom of speech" has a rational basis ornot, any more than it does whether a law abolishing trial by jury inthe federal courts has a rational basis, as it well might have. Bothlaws are expressly forbidden, without any reference, expressor implied, to the tenability of the policy arguments by whichthey might be supported. Most laws suppressing free speech, andall such laws which could pass Congress, have a rational basis, inthe sense that some rational men may believe their enforcement2 Id. at 100.NOTRE DAME LAWYERwould do good. The suppression of free speech seems quite evi-dently rational to all but a small fraction of humanity. The framersof the First Amendment were not foolish enough to be unaware ofthis. They committed our nation to take a chance on a higherrationality.3While Professor Black admits that some reservations must be importedinto the language of the free speech guarantee, Professor Meiklejohn resolutelymaintains the contrary. However, he, to some extent, accomplishes the sameend by a limitation on the character of the freedom that is guaranteed with-out exception. In his view it is only the freedom necessary to preserve the publicinterest in the fullest discussion of political matters. Expression directed to aprivate interest, be it of the lobbyist, the union member, the Witness of Jehovah,or the commercial organs of expression, are not protected by the First Amend-ment, but only by the due process clauses of the Fifth and Fourteenth Amend-ments. This formulation leaves a large area open to public regulation, too largea one in my view.4 And it creates a logical difficulty with regard to state legis-lation restricting political expression. This is not protected by the absolutelanguage of the First Amendment which restricts only Congress. State lawscome under scrutiny by federal courts only by virtue of the due process clauseof the Fourteenth Amendment. Does that acquire a different meaning de-pending on the character of the state legislation being considered and, if so,by what justification? Professor Meiklejohn doesn't say-indeed, it does not ap-pear that he is conscious of the difficulty.Part of Meiklejohn's book consists of articles and letters dealing withacademic freedom, congressional committees, and the privilege against self-incrimination. In one of these he criticizes Mr. Justice Frankfurter's concurringopinion in the Dennis case5 that the Bill of Rights laid down no new principles,but simply embodied guaranties and immunities inherited from our English an-cestors. This, he says, seems to him to "sap the very foundation of our Americanpolitical system," which instituted a relation between the people and the legis-lature unknown to the English ancestors, as, for instance, that "Congress shallmake no law respecting an establishment of religion." ' Professor Meiklejohnstresses the essential character of the federal government as one of limited powers,both in the explicit language of the Constitution and by the specific restrictionsof the Bill of Rights.3 Id. at 220-21.4 A position shared by Professor Paul G. Kauper of the University of Michigan Schoolof Law. In a letter to the NOTRE DAME LAWYER of July 6, 1960, Professor Kauper said:My criticism of Meiklejohn is that he is too rigid and artificial in thedistinction he draws and in suggesting a legal pattern that will take accountof these distinctions. I think that the attempt to draw a line for the purposeof the distinction he establishes is much more difficult than Meikeljohnappears to concede. Rather than follow Meiklejohn's idea that speechrelating to public issues is protected by the First Amendment whereas theother types of speech are protected by the Due Process Clause, I would sayin view of the difficulty in making these distinctions that the First Amend-ment is relevant with respect to all these problems, but in application ofthe balancing process I would attach greater or less weight to the par-ticular freedom asserted depending on the purpose to which it is directed.Letter in the files of the NOTRE DAME LAWYER. (Ed.)5 Dennis v. United States, 341 U.S. 494, 524 (1951).6 MEIKLEJOHIN, POLITICAL FREEDOM 101-02 (1960).BOOK SURVEYProfessor Gellhom's book is quite different from the preceding two. It isbased on lectures given at Tokyo University. These were revised in the hope thatthe result would be acceptable to laymen without the simplification generallyfound necessary for such an audience; an endeavor in which Professor Gellhornhas succeeded wonderfully. Here are chapters dealing with military and civiliancriminal trials and the specific safeguards affecting the latter, with freedom tospeak and freedom to remain silent, with legislative investigations, freedom ofmovement, and desegregation.The book is infused with an enlightened liberalism. On the issue on whichthe other two authors have differed, Professor Gellhorn tends to agree withBlack that restraint is justified if it is "clearly and closely related to the protec-tion of some identifiable public interest," but that "the public interest in freespeech is itself so very great that it cannot easily be outweighed by some com-peting interest." He discusses this problem at length in relation to Smith Actprosecutions. After noting the misgivings aroused by Dennis and the partial"clarification" in Yates7 he concludes:The sounder course, dictated by decisions that preceded Dennis,is to disregard advocacy and teaching, even though its ultimategoal may be acts, unless there is imminent danger that unlawfulconduct will be induced. At a particular time and in particularcircumstances a speaker may properly be deemed an actionist.Realistically considered, there can in fact be such an offense as incit-ing a riot; there can in fact be such an offense as organizing violentsteps that are calculated to disturb public order or to lead to over-throw. The use of one's vocal cords or of one's typewriter may,therefore, properly be regarded as punishable action in some situa-tions. Those situations, however, do not arise when there is stillample opportunity for the force of words to be dissipated by otherand better words, or by feasible defensive measures, or (most sig-nificantly) by the course of events that the speaker does not con-trol. The man who urges an angry mob to follow him into action,then and there, is creating an immediate threat to public safety.But a man who urges an audience to follow him into action whenthe time is ripe, at some uncertain date in the future, is not apresent menace, though he may be a profound irritation. Twothings argue against dealing with him or his kind at that stage.First, society should conserve its energies, using them only for realrather than supposititious problems. Second, when immediacy ofdanger is not the test, the boundaries between permissible andimpermissible talk become too hard to draw. When that happens,the people at large are discouraged from talking at all about thingsthat matter deeply, lest they be adjudged to have overstepped thelines. A free society can better stand the risks of talk than the risksof silence.8In his discussion of the freedom to keep silent, Professor Gellhorn dealswith the flag salute cases, the various loyalty oath requirements, the privilegeagainst self-incrimination, and immunity statutes; but he does not discuss theproblems which have arisen in the last two areas because of the federal natureof our government.7 Yates v. United States, 355 U.S. 66 (1957).8 GELLHORN, AMERICAN RIGHTS 83-84 (1960).NOTRE DAME LAWYERIn a brief epilogue, Gelihom assesses the work of the courts in the fieldof civil liberties. He points out the difficulties inherent in "amorphous" principlessuch as "due process of law" and says their meaning is "built upon" the Con-stitution:The master builders - the judges - drew inspiration for thebuilding design elsewhere than from the simple language of theforefathers. Sometimes they had recourse to history, which laysbare a record of evils against which the Constitution-makers pre-sumably sought to create a shield. Sometimes, perhaps more often,the inspiration came from the judges' own perception of values.Whose values were thus perceived? The judges disclaim anyintent to be uninhibited subjectivists when they apply soft wordsto hard facts. They purport to recognize not their own inner hopesand fears, but, rather, the aspirations of society at large. Whenthe words of the Constitution are not given precision by contextand usage or by history or by binding precedents, then the judgesmust "gather meaning not from reading the Constitution but fromreading life." 'And he eloquently concludes:America can remain a land in which majorities of the momentare forbidden to tyrannize political minorities, a land in which whathappens to an individual is deemed important to the communityas a whole, a land in which means as well as ends are matters ofmoral concern, only if Americans want this kind of land. TheSupreme Court cannot decree its preservation. The Supreme Courtcan only reflect the expressed or latent convictions of all thosewho in the aggregate are America. Charles Evans Hughes, in awidely quoted aphorism he no doubt regretted having uttered,once declared that the Constitution is what the Supreme Courtsays. So it is. Back of the Supreme Court, however, providing theethical current that animates its decisions, is the massive thoughsometimes formless body of public sentiment. In the end, theConstitution always becomes what the People of America will itto be. That is why liberty is everybody's business.' 09 Id. at 197-98, quoting from FRANKFURTER AND LANDIS, THE BuSINEss OF THESUPREME COURT 310 (1928).10 Id. at 200.

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