Beyond the System

A central goal of Eloquence and Reason is to uncover the cultural-legal process by which constitutional ideas emerge as governing ideals. The book necessarily focuses on the actions of those who participate directly in the system: judges, politicians, lawyers, and activists.

But it's fair to wonder about the processes that largely escape the control of political or legal institutions. One of those domains is art. To what extent does art inform or disrupt constitutionalism? The intersection of popular culture and law is well worth mining.

Artists such as Langston Hughes bore witness to the New Deal and America's participation in World War II, two of Franklin Roosevelt's greatest achievements. In a new paper, Langston Hughes: The Ethics of Melancholy Citizenship, I analyze this twentieth century figure's poetry as a theory of democratic participation.

The abstract follows:

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.

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Will Sotomayor Be the New Rutledge?

As some academics and court watchers wonder whether Judge Sonia Sotomayor is a first-rate intellect or a legal visionary, I couldn't help but think back to Franklin Roosevelt's selection of Wiley Rutledge for the Supreme Court in 1943. Few analogies are perfect, but consider some similarities. Rutledge, like Sotomayor, was a sitting judge on the federal court of appeals. Although he served on the D.C. Circuit, he spent many years West of the Mississippi and was touted as a diversity candidate—i.e., he would improve geographic diversity to the Supreme Court. Additionally, Rutledge found himself pitted against other candidates, most notably Learned Hand, with strong advocates (including Felix Frankfurter) hoping for a brilliant addition to the High Court.

Supporters of Rutledge, including Francis Biddle, needed to counter Learned Hand's stellar legal bona fides. They made three arguments to Roosevelt and others. First, at 71, Learned Hand was too old to have a significant impact on the Supreme Court. Beyond presidential legacy, some also argued that appointing a someone advanced in years exposed FDR to charges of hypocrisy after his court-packing initiative.

Second, Rutledge had the chops to do the Court's business. A memorandum by Herbert Wechsler arranged by Biddle argued that Rutledge's legal opinions were sometimes overwritten, but nevertheless demonstrated a "soundness of judgment, a searching mind, a properly progressive approach to legal issues."

Third, as John Ferren recounts, Rutledge came to be perceived as a "trusty liberal." What, exactly, did that mean? The obvious part is that he would not wreck the New Deal, something Wechsler pointed out. But I think it meant something more to liberals within the administration hoping to make more inroads on questions of civil rights and liberties. Wechsler pointed out "civil liberty problems" among those Rutledge handled as a judge, and concluded that "his work leaves no room for doubt that these values are safe in his hands." Biddle described Rutledge as "a liberal who would stand up for human rights, particularly during a war when they were apt to be forgotten."

Today Rutledge is never mentioned in the same breath as Cardozo, Brandeis, or Holmes. But consider what he achieved in his six years on the Court. Rutledge authored Thomas v. Collins, an overlooked decision involving union organizing that provided an important link between the solitary speaker model of free expression and the group advocacy model that we now recognize. He voted to overrule Gobitis. On those occasions Robert Jackson or Hugo Black preferred a narrower reading of the First Amendment, such as Jones v. City of Opelika or Terminiello v. Chicago, Rutledge often provided an important vote for free speech protections. He authored Kotteakos v. U.S., which helped define "harmless error" review in criminal appeals involving non-constitutional claims. Rutledge dissented in Everson v. Board of Education, arguing that the Establishment Clause forbade public funds to be spent on transporting children to parochial schools. However, he joined Black's majority opinion in Korematsu v. U.S. upholding the wartime internment of persons of Japanese ancestry.

Jilting the President for Congress

Cross-posted at Legal History Blog:

An intriguing aspect of West Virginia State Board of Education v. Barnette involves the Justices' choice of partners in making the sale to the American public that the Constitution embodies a more robust right of individual conscience than what they believed a few years earlier. The background assumption many scholars work with today is that, all things being equal, the Supreme Court prefers not to go it alone, particularly when the institution anticipates controversy ahead. Robert Jackson's early drafts of the opinion suggest that his preferred partner originally was the presidency. This makes sense on a number of levels, given that executive branch officials had flooded the zone on the matter, Jackson and others may have honestly been swayed by their statements and actions, and independent reasons exist for thinking that the modern presidency enjoys an influential role in framing constitutional questions.

But Jackson at some point appears to have changed his mind during the opinion writing process, and the published opinion not only sought to erase the appearance of presidential cooperation but also gestured toward Congress. Sandwiched between two sentences in Barnette on the risks to the Constitution posed by overzealous local officials is this sentence: "The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation."

Note that the argument is only that the passage of a recent federal law and the existence of a textual commitment to Congress "contrast[] sharply" with a relatively minor claim by local officials to work in the federal interest, not that the federal law or Congress's power to raise an army is actually violated by a mandatory flag salute. In other words, a clash of federal and state interests is a strong suggestion rather than a firm conclusion.

What caused this aspect of the switch and what does it reveal?

The decision to swap partners merits further digging and rumination. For now, let me offer a few additional thoughts beyond my prior writings. First, the development may reflect no more than respect for formalism, since the administration was not a party to the action. On the other hand, DOJ was not present to defend the flag law or Congress's power to raise an army, either, so while formalism may explain in part a decision to jilt the presidency, it doesn't completely explain the Court's decision to take up with Congress. The argument that the federal flag law preempted conflicting state and local laws was made in the DOJ lawyers' article, pressed by the ACLU as amicus curiae below, and rejected by the three-judge panel that first heard the action—which means that the Supreme Court ended up watering down the argument, but found it useful anyway to imply federal-state friction. Still, at least the argument had already been made somewhere during the lawsuit.

Second, formalities aside, Congress is often an attractive partner because many Americans think of the legislative branch as most in tune with popular preferences. As an institution, it also has a hard time talking back in a single voice. Given the collective action problems involved in repudiating the Barnette Court's inconclusive assertion of a federal interest in all matters concerning the flag, the Justices may have felt it reasonably safe to imply that the Court and Congress were in accord on the matter. Since it hadn't issued a strong endorsement of Gobitis already, Congress was unlikely to do anything to shatter the illusion of Judiciary-Congress cooperation (though you can never fully predict a reaction to legal decisions).

Third, seeking cover behind legislative prerogatives may reflect some hangover effect from the New Deal years—including increased suspicion of presidential authority left over from the court-packing crisis. It is possible, of course, to argue that FDR was not nearly as popular in the 1940s as he had been in the 1930s. If this is true, then the contingent, oscillating nature of a particular office-holder's popularity may have affected the ultimate presentation in Barnette.

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The Law Clerk's Memo to Robert Jackson in Barnette

Cross-posted at Legal History Blog:

One of the more fascinating documents in Robert Jackson's files on West Virginia State Board of Education v. Barnette is an undated memo from "JFC"—Jackson's first law clerk brought over from the Department of Justice, John F. Costelloe.

One idea suggested by Costelloe involves when courts ought to permit an individual a First Amendment exemption from an otherwise valid law. Costelloe wonders how to protect rights without interfering with the "many items of school discipline which will inevitably offend the tastes of students"—a concern that bedevils jurists to this day. He proposes a kind of "substantial difference" test: "a minimal requirement for refusal to salute the flag in a public school should be a showing of difference in political, ethical, or religious opinion to a degree which may fairly be called substantial." Given his mention of political and ethical objections, Costelloe envisions an approach that could be adopted in contexts beyond the flag salute. Jackson apparently resisted this suggestion and finessed the standard.

Another set of comments establishes that some members of the Supreme Court and their clerks were aware of, and found important, certain extrajudicial events and perspectives. First, Costelloe advises Jackson that it is possible to describe the persecution of the Jehovah's Witnesses as a perversion of Gobitis, and not in any way sponsored by the Court: "Because lawless mobs may have misunderstood its meaning is not in itself a reason to change it." This comment echoes one separately made by Chief Justice Harlan Fiske Stone. But notice that these criticisms help to explain why the final opinion downplays the extent of the persecution, but they do not disprove that out-of-court events affected the Justices' thinking. Nor do the changes to the text alter the likelihood that Jackson himself believed that Gobitis bore some responsibility for certain anti-democratic attitudes and behavior.

Second, Costelloe refers to the "June 16, 1940 radio address [in which] Solicitor General Biddle said that the Attorney General had ordered that an investigation be commenced." A reference in the opinion to this speech was later deleted.

Third, Costelloe endorses Jackson's plan to cite to the article by Victor Rotnem and F.G. Folsom, Jr., two lawyers from the Civil Rights Division of the Department of Justice—which I have called an unofficial amicus brief. Costelloe notes that the article "contains many statements of opinion quite inapposite to a formal report by a governmental agency or statement by a governmental opinion speaking in that capacity," and that it is therefore "intended more for advocacy than for exposition." Even so, he concludes: "I should think that it would be desirable to indicate the position of these gentlemen in the Department of Justice." Though Jackson and others likely read and considered DOJ's extrajudicial appeal, this reference was excised from the opinion before publication.

Fourth, the law clerk "think[s] it would be well to work into the opinion rather exhaustive references to the secondary materials on the Gobitis case. The list of Gobitis haters begins with Powell, . . . and continues until we reach the anonymous student notes. Their practical unanimity is, I think, of some significance and possibly of some help." These out-of-court writings make the final cut. Why cobble together all of these sources unless you are trying to suggest one consensus has rapidly eroded and another has emerged—supported by thoughtful Americans, including members of the Executive Branch?

What Caused the Supreme Court to Change Its Mind on the Flag Salute?

In Chapter Five of Eloquence and Reason, I consider the ways in which war has altered how we talk about the First Amendment. A linchpin of the post-World War II order is the case of West Virginia State Board of Education v. Barnette, which vindicated the right of objecting Jehovah's Witnesses to refuse to salute the American flag. I have authored an article, Reconsidering Gobitis, that develops themes in the book by drawing on more extensive archival materials.

Cross-posted at Legal History Blog:

The question of causation is notoriously difficult to assess, in law as in history. The legal system's goals of fashioning incentives just-so and compensating injured parties demand that participants assign responsibility. Judges and juries identify the "proximate cause" or "motivating factor" because, in a sense, they must. In history, no normative enterprise need constrain one's investigation of cause and effect. Often, one can be satisfied by merely showing that some underappreciated factor had a part in human affairs.

When it comes to constitutional history, pressing a bit harder on the relationships among causal factors can yield insights as to how the political order operates. We might wish to know the relative power political and legal actors have in practice, the social conditions under which an influence on the law can be exerted, and the tools available for acts of constitutional meaning-making and transformation.

A fascinating case study can be found in the U.S. Supreme Court's switch on the constitutionality of the coerced flag salute in the early 1940s. As America geared up for war, the Justices originally held in Minersville School District v. Gobitis that national unity counseled against recognizing a First Amendment right to refuse to salute the American flag. Three years later, the High Court abruptly reversed course, concluding in the famous Barnette case that respect for pluralism and individuality favored vindicating the Jehovah Witnesses' claim.

What best explains the sudden change? Two of the stronger explanations for the switch involve the wave of terror against Jehovah's Witnesses after the first ruling, vividly documented by Shawn Francis Peters; and changes in the Court's personnel in the intervening years (as analyzed in numerous judicial biographies).

In Reconsidering Gobitis: An Exercise in Presidential Leadership, which is hot off the presses, I offer an alternative account: the extra-judicial words and deeds of the Roosevelt administration played a significant role in the Supreme Court's turnabout. These actions signaled that the right of conscience was a presidential priority and framed such a right as the legacy of a just war. No brief was filed by the United States government in either lawsuit, but archival documents show that Robert Jackson kept FDR apprised of developments in Barnette. Department of Justice lawyers authored an article laying the extra-legal violence against the Jehovah's Witnesses squarely at the feet of the Supreme Court, urging the Justices to undo the damage by reversing themselves, and suggesting that such a corrective would implement the president's agenda, "The Four Freedoms." Speeches by key aides emphasized religious liberty and conscience, all while denying public support to Gobitis; these speeches were prominently quoted by the litigants. Finally, Robert Jackson's early drafts of Barnette suggest that the Justices and law clerks were aware of these executive branch efforts, though most of these references were later excised or downplayed during the opinion writing process, effectuating an erasure of presidential action.

Who has the better of the historical argument? What lessons can be drawn if we view this sequence of events as a sophisticated exercise in what Keith Whittington calls "political construction" of the Constitution?