Dahl sought to show that popular sovereignty and political equality were not sufficient ends of democratic government, specifically because they failed to ensure the protection of minorities. But, in fact, Dahl asserted, the American political system tended to produce responsible government because it consisted of competition among interest groups-"not minority rule," in Dahl's famous phrase, "but minorities rule."61 It was Dahl who articulated what came to be called the "interest group pluralist" theory of American democracy that would dominate American political thought during the 195os. All that was necessary was a prior commitment to rules of the game for resolving group conflict. Dahl's vision went hand in hand with Daniel Bell's picture of an "end of ideology" in which politics was confined to the question, as Harold D. Lasswell had put it, of "who gets what, when, how."62 Non-ideological politics was thought to involve only technical disagreement over the best means of arriving at agreed-upon ends.
Democratic politics, Dahl wrote, actually represents "merely the chaff. It is the surface manifestation, representing superficial conflicts."
Prior to politics, beneath it, enveloping it, restricting it, conditioning it, is the underlying consensus on policy that usually exists in the society among a predominant portion of the politically active members. Without such a consensus no democratic system would long survive endless irritations and frustrations of elections and party competition. With such a consensus the disputes over policy alternatives are nearly always disputes over a set of alternatives that have already been winnowed down to those within the broad areas of basic agreement.63
Thus, Dahl continued, "so far as there is any general protection in human society against the deprivation by one group of the freedom desired by another, it is probably not to be found in constitutional forms. It is to be discovered, if at all," Dahl concluded two years after Brown v. Board of Education, "in extraconstitutional factors." 64
One of the reasons why tyranny of the majority is controllable primarily through extra-constitutional means, Dahl explained, is that "a central guiding thread of American constitutional development has been the evolution of a political system in which all active and legitimate groups in the population can make themselves heard at some crucial stage in the process of decision."65 But what about the influence of racial or political persecution in determining who were the "active and legitimate groups in the population"?
[I]f a group is inactive, whether by free choice, violence, intimidation, or law, the normal American system does not necessarily provide it with a checkpoint anywhere in the process. By "legitimate," I mean those whose activity is accepted as right and proper by a preponderant portion of the active. In the South, Negroes were not until recently an active group. Evidently, Communists are not now a legitimate group. As compared with what one would expect from the normal system, Negroes were relatively defenseless in the past, just as the Communists are now.66
One now wonders about Dahl's original insistence on the "underlying consensus" that makes political conflict "superficial," as well as about his assurance that this "enveloping" consensus produces extra-constitutional checks far superior to constitutional rules. Can it be that this consensus is defined as simply what remains after dissenting groups become "inactive, whether by free choice, violence, intimidation, or law . . ."?
But why were the ends agreed upon? Here we see the close relationship between interest group pluralist theories of politics modeled on equilibrium theories in economics and consensus theories that sought to find fundamental agreement over ends and values. Whether rooted in a picture of a relatively conflict-free American history or of a non-ideological "American mind," consensus theories buttressed the view either that there could be agreement on rules of the game independently of ends or else that all politics involved simply the non-ideological question of the most efficacious means for arriving at undisputed ends.
The one area in which consensus theories seemed most obviously inadequate was race. It was a common observation that consensus historians downplayed the significance of slavery and the Civil War in their historical interpretations.67 Indeed, just as consensus theorists were forced to ignore the meaning of the existing racial caste system enforced by Southern segregation laws, interest group pluralist theorists were likewise required to avoid the question of why certain groups were excluded from the democratic political process entirely.68
Brown v. Board of Education was thus deeply unsettling to the picture of American society that the dominant version of postwar social thought had presented. As America rediscovered poverty with the publication of Michael Harrington's influential The Other America (1962)69 and the civil rights movement surged with Martin Luther King, Jr.'s, 1963 "1 Have a Dream" speech,70 the web of denial that value-free and non-ideological post-war thought had spun concerning fundamental questions of social justice began to unravel.
Learned Hand's Bill of Rights
Brown v. Board of Education produced a sharply critical reaction among elite legal thinkers,7' for it challenged at the deepest levels their efforts to re-establish a neutral, value-free system of constitutional doctrine. Could the Brown decision be kept from spilling over into other areas involving minority rights? For at the same time as a majority of the Supreme Court was justifying its capitulation to McCarthyism in the name of judicial restraint and democracy, a dissenting minority was insisting that civil liberties occupied a preferred position in the American constitutional scheme.
Brown v. Board of Education thus became the lightning rod for the emerging split within Progressive jurisprudence during the sixteen years since Chief Justice Stone's Carolene Products footnote. If a majority of the Supreme Court in West Virginia v. Barnette (1943) had seemed to accept the distinction between economic and personal rights, according the latter a preferred position in the constitutional scheme, by the time Brown was decided, a new majority was insisting that the Court's capitulation to McCarthyism was required by judicial restraint and deference to democratic principles. Thus, Brown was received by many legal thinkers as a test of their commitment to judicial restraint.
Two of the most prominent critics of the Brown decision were judge Learned Hand and Columbia Law Professor Herbert Wechsler, who delivered consecutive Holmes Lectures at Harvard Law School in 1958 and 1959. Each of these lectures was widely discussed in legal circles, and indeed, they expressed a number of the themes prominent in post-war American legal thought.
Learned Hand's lectures, entitled The Bill of Rights (1958),72 constituted a bold and uncompromising challenge to all constitutional review of legislation. "Particularly at the present time,"73 he wrote four years after Brown, the question of "when a court should intervene" was important enough to re-examine. He then proceeded to offer a thorough review and critique of the justifications for judicial review. He first agreed with the earlier Progressive contention that there was "nothing in the United States Constitution that gave courts any authority to review the decisions of Congress," and he insisted that "it was a plausible-indeed to my mind an unanswerable-argument" that such an authority was incompatible with the separation of powers.74
Having fundamentally challenged the legitimacy of judicial review, Hand next turned to a discussion of the conflict that had emerged within the New Deal majority since the second Flag Salute Case over whether "a stiffer interpretation" of the Constitution was appropriate "when the subject matter is not Property but Liberty. "75 He concluded that any distinction between personal and property rights "would have seemed a strange anomaly" to the framers of the Constitution. 76 Having thus cast doubt on the preferred position argument, Hand immediately focused on the Brown decision itself.
(This] question arose in acute form in "The Segregation Cases." In these decisions did the Court mean to "overrule" the "legislative judgement" of states by its own reappraisal of the relative values at stake? Or did it hold that it was alone enough to invalidate the statutes that they had denied racial equality because the [Fourteenth] amendment inexorably exempts
that interest from legislative appraisal? It seems to me that we must assume that it did mean to reverse the "legislative judgement" by its own appraisal.. . . There is indeed nothing in the discussion that positively forbids the conclusion that the Court meant that racial equality was a value that must prevail against any conflicting interest, but it was not necessary to go to such an extreme.77
Hand could not see how the Court, in purporting to distinguish, not overrule, Plessy v. Ferguson,78 could still defend "the notion that racial equality is a paramount value that state legislatures are not to appraise and whose invasion is fatal to the validity of any statute."79 Therefore, after Brown, he concluded, "the old doctrine seems to have been reasserted" that personal rights had a preferred status over economic rights,80 a view he had already done his best to criticize.
Hand ended his discussion of Brown by saying that he could not "frame any definition that will explain when the Court will assume the role of a third legislative chamber and when it will limit its authority. . . ." As to the former, "I have never been able to understand on what basis it does or can rest except as a coup de main."81
Because Brown v. Board of Education has become so incontrovertible a part of the legal landscape, one is surprised to realize how problematic it appeared to someone of judge Hand's towering reputation. And because constitutional theorists have subsequently separated the preferred position issue from questions of racial equality, one is reminded that for many post-war legal thinkers the Brown case was the central challenge to their justifications for judicial restraint. For example, one month after Brown Y. Board of Education was decided, Justice Felix Frankfurter wrote to Judge Hand: "You know my deep sympathy with your outlook on the XIV Amendment. I once shocked Cardozo by saying that I would favor the repeal of that Amendment-and had wished that only the X111 and XV had issued from the Civil War. But since we have it, we have it-and I literally go through torture, from time to time."12 Four years later, after informing Hand of "the accounts that have come from Cambridge of the impressive success of your Lectures," Frankfurter recalled "that Cardozo's espousal of the value of the Fourteenth Amendment led to a correspondence between us in the course of which I told him that on the balance I wished that when the Amendment first came before the Court it had concluded that it was too vague, too much open to subjective interpretation for judicial enforceability."83
Judge Hand spoke amid the greatest crisis over school desegregation since Brown was decided. The governor of Arkansas, implementing the declared Southern policy of massive resistance to school desegregation, had disobeyed a federal court desegregation order by preventing black children from integrating an all-white school. At the same time as judge Hand was casting doubt on the legitimacy of the Brown decision, federal troops, sent by President Dwight D. Eisenhower, were patrolling the grounds of Little Rock's Central High School. Hand not only questioned the general authority of the Supreme Court to engage in judicial review, but he also suggested that the Court had acted like "a third legislative chamber" in adopting the "extreme" view "that racial equality was a value that must prevail against any conflicting interest.. . ."84
How could one of the giants of pre-World War I Progressivism have averted his eyes so completely as to avoid seeing the significance of the Supreme Court's effort to end this long-standing institutionalization of systematic social injustice?
Before we attempt an answer, we need to set Hand's 1958 lectures in the context of the Supreme Court's contemporaneous efforts at dismantling the widespread institutionalization of attacks on civil liberties during the McCarthy era. Only one year earlier, in a series of major decisions, the Court first signaled a turn away from its virtually complete deference to cold war governmental measures designed to punish political dissent.85
The most important of these cases was Yates v. United States (1957),86 in which the Court reversed the Smith Act convictions of fourteen second-string leaders of the American Communist Party and indicated that it would be reluctant to sustain future convictions under the act. Distinguishing between advocacy of abstract doctrine and advocacy of action, the Court held that there was insufficient evidence of the latter to support a conviction.
In his lectures, judge Hand criticized the Yates distinction as unsound and urged that a court should always bow to the legislative judgment "unless . . . [it] is satisfied that it was not the product of an effort impartially to balance the conflicting values."87 Moreover, at a time when the Holmes-Brandeis interpretation of the "clear and present danger" test represented the chief intellectual bulwark against complete deference to legislative restrictions on unpopular speech,88 judge I-land pronounced: "I doubt that the doctrine will persist.. . ."89 Indeed, Judge Hand had already done his best to subvert the clear and present danger test in his influential circuit court opinion in Dennis v. United States (1950),90 upholding the prosecution of the top leaders of the Communist Party. Chief Justice Vinson's incorporation of Hand's version of that test91 is often thought to represent the post-war nadir of Supreme Court protection of free speech.92
Thus, when the Supreme Court reversed the second set of convictions under the Smith Act the year before judge Hand delivered his Holmes Lectures, he might well have had reason to feel criticized. Indeed, when one recalls that four decades earlier, in the midst of war, Hand himself had delivered a strong and unprecedented defense of unpopular speech in the Masses case,93 one is left wondering what had become of Learned Hand's commitment to free-speech. 94
Hand's views on Brown v. Board of Education and the Bill of Rights generally are representative of the demise of a critical vision to which Progressive jurisprudence succumbed after World War II. In developing its critique of the Lochner Court, Progressivism had originally overstated the contradiction between democracy and judicial activism,95 which eventually culminated in Hand's assertion in The Bill of Rights of the virtual illegitimacy of judicial review. As the conception of democratic process became increasingly divorced from any notion of democratic culture, Progressives increasingly came to define judicial review as contrary to democratic principles. In addition, the introduction of balancing tests by Progressive legal thinkers as a way of undermining the confident formalism, conceptualism, and fundamentalism of Classical Legal Thought eventually also undermined Progressivism's own confidence in the validity of its social vision.
By the time Hand wrote, his school of pre-war Progressivism had come to focus upon adherence to judicial restraint as the paramount test of whether a judge was principled or opportunistic.
One can best capture the stakes in this issue by looking back twelve years earlier to judge Hand's 1946 eulogy of Chief Justice Harlan Fiske Stone.96 As the post-war division within pre-war Progressivism grew, one of the most prominent forms of debate involved argument over whether earlier revered figures such as Holmes, Brandeis-and now Stone-would have accepted or rejected a preferred position for civil liberties. Never so much as mentioning either Stone's Carolene Products footnote or his solitary dissent in the first Flag Salute Case, Hand nevertheless claimed Stone for his, the anti-preferred position, camp.
Hand's eulogy enables us to capture his justification for judicial restraint at a time before the sides became bitterly divided during the 195os. Presenting a now standard Progressive version of the New Deal triumph over the Lochner Court, Hand declared that when Stone was appointed to the Supreme Court in 1925, "there had for long been a cleavage, deep though somewhat vague in its boundaries . . . chiefly in the interpretation of the Bill of Rights. . . ."
With the extraordinary industrial expansion which followed the Civil War, there came in the seventies and eighties acute industrial and agrarian tensions, which, though in kind they were not new and indeed went back to the beginning of the republic and earlier, had not theretofore been thought to call for much affirmative governmental regulation. Beginning in the eighties the states strove to relieve these by statutes whose passage the propertied interests, on whom they impinged, were powerless to prevent.
/> They appealed to the Fourteenth Amendment on the score that these measures invaded just those rights of property which the Amendment had been designed to prevent. There was no doubt that they did invade those rights as they had theretofore been enjoyed and understood; and the judges, having been for the most part drawn-as was inevitable-from the group whose interests were affected, in entire good faith found ample warrant for the position that such enactments were contrary to the fundamental presuppositions of a society based upon that system of free enterprise which the Bill of Rights guaranteed.
It was during the nineties that this movement was in its heyday; perhaps it reached its most extreme expression in the Income Tax Decision, in spite of the fact that that involved the Bill of Rights, if at all, only very obliquely.97
Then, while Stone was a law student "there were questionings," and Professor James Bradley Thayer at Harvard had already become the "prophet of a new approach."98 By the time Stone became dean at Columbia Law School, "the difference was articulate and strident and he made no secret where his choice lay."99 As justice, he sided "with that minority of brethren"-Holmes and Bran- deis-"who made up for their small number by the weight of their authority." loo
Their notion was that the Bill of Rights could not be treated like ordinary law; its directions were to be understood rather as admonitions to forbearance; as directed against the spirit of faction when faction sought to press political advantage to ruthless extremes. These men believed that democracy was a political contrivance by which the group conflicts inevitable in all society should find a relatively harmless outlet in the give and take of legislative compromise after the contending groups had had a chance to measure their relative strength; and through which the bitterest animosities might at least be assuaged, even though that reconciliation did not ensue which sometimes follows upon an open fight. They had no illusion that the outcome would necessarily be the best obtainable, certainly not that which they might themselves have personally chosen; but the political stability of such a system, and the possible enlightenment which the battle itself might bring, were worth the price. 10'
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