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59• R. DAHL, A PREFACE TO DEMOCRATIC THEORY (Univ. of Chicago Press 1956).
6o. "No interpretive tendency of the 1950s was more typical of the general movement of intellectual opinion, or reverberated more widely throughout the culture, than the sharp downward turn in the historical reputation of the Populists. . . . Rather than a democratic movement against exploitation, whose program prefigured subsequent reforms, the Populists came to be portrayed as a backward-looking band of nativist book burners obsessed with imaginary grievances. . . . [T]he assault on Populism spread throughout the social sciences and the intellectual world at large. . . . The immediate context of the reevaluation of the Populists was the early 1950S phenomenon of McCarthyism, which a number of analysts quickly connected with agrarian radicalism, LaFollette Progressivism, and in particular, Populism. In this view McCarthy's crusade, like that of the Populists, was a democratic and anti-intellectual revolt of dispossessed groups against educated elites.. . . The approach which Hofstadter took to the Populists was the first important example of what became a common feature of cold war historical scholarship, the social-psychologizing of dissidence and insurgency. . . . The most controversial of Hofstadter's assertions about the Populists . . , was the charge that anti-Semitism was central to their world view. . . . Privately, Hofstadter acknowledged that he had exaggerated. . . ." P. NovICK, supra note 30, at 337-38. Novick is referring to R. HOFSTADTER, THE AGE OF REFORM 8o (Knopf 1955) and R. HOFSTADTER, ANTI-INTELLECTUALISM IN AMERICAN LIFE (Knopf 1963).
61. R. DAHL, supra note 59, at 132.
62. H. LASSWELL, POLITICS: WHO GETS WHAT, WHEN, How (McGraw-Hill 1936). See D. BELL, supra note 24.
63. R. DAHL, supra note 59, at 132-133.
64. Id. at 134.
65. Id. at 137.
66. Id. at 138.
67. See, e.g., R. HOFSTADTER, supra note 30, at 460-61; Higham, supra note 30, at 95.
68. See R. DAHL, supra note 59.
69. See M. HARRINGTON, THE OTHER AMERICA: POVERTY IN THE UNITED STATES (Macmillan 1962).
70. See T. BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS, 1954-63, at 881-883 (Simon & Schuster 1988).
71. One is surprised to learn how late it was that legal academics actually sought to defend the Brown decision. See, e.g., Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959); Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960).
72. See L. HAND, THE BILL OF RIGHTS (Harvard Univ. Press 1958).
73. Id. at i.
74. Id. at to.
75. Id. at 50.
76. Id.
77. Id. at 54.
78. 163 U.S. 537 (1896).
79. Id. at 54-55.
8o. Id. at 55•
81. Id.
82. Letter from Felix Frankfurter to Learned Hand (June 25, 1954) (Folder #20, Hand Papers, Harvard Law School Library). I am grateful to the Harvard Law School for permission to quote from the manuscript. Special thanks to Sanford Levinson for calling these Frankfurter-Hand letters to my attention.
83. Letter from Frankfurter to Hand (February 13, 1958). Frankfurter continued: "In short, I deemed it on the whole a misfortune that the Due Process Clause (more than the Equal Protection Clause) had not been regarded like unto some other provisions of the Constitution as raising 'political questions' and therefore unfitted for the adjudicatory process." Just at the moment when it appeared that the statement quoted in the text referred only to the due process clause, not to the equal protection clause, under which the major state cases like Brown were decided, Frankfurter continued: "One reason why you ought to find a source of relief in not having been on this Court is that you would have had one helluva time whenever you would have been called upon to act in these due process cases. Thus, I doubt very much whether in the end you would have held out against the decision in the Segregation Cases." Frankfurter thus slipped right back to treating the whole of the Fourteenth Amendment as one undifferentiated "misfortune."
84. L. HAND, supra note 72, at 54. See Cooper v. Aaron, 358 U.S. 1 (1958).
85. See Pennsyvlania v. Nelson, 350 U.S. 497 (1956) (reversing the conviction of a Communist under Pennsylvania's sedition law); Konigsberg v. State Bar, 353 U.S. 252 (1957) (reversing the refusal of bar examiners to admit a former Communist to the California bar); Jencks v. United States, 353 U.S. 657 (1957) (reversing the conviction of a union official accused of falsely stating that he was not a member of the Communist Party); Watkins v. United States, 354 U.S. 178 (1957) (reversing a conviction for refusal to answer questions before the House Committee on Un-American Activities); Sweezy v. N.H., 354 U.S. 234 (1957) (reversing a conviction for refusal to answer questions about Communist associations put by the state attorney general); Service v. Dulles, 354 U.S. 363 (1957) (invalidating a discharge of a Foreign Service officer by the Loyalty Security Board); Yates v. United States, 354 U.S. 298 (1957) (reversing a conviction of "second string" Communist leaders under the Smith Act); Kent v. Dulles, 357 U.S. 116 (1958) (the Secretary of State had no power to deny a passport to a citizen because of alleged Communist associations).
86. 354 U.S. 298 (1957)-
87. L. HAND, supra note 72, at 61.
88. See M. SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 46-72 (Prentice Hall 1966).
89. L. HAND, supra note 72, at 59. Hand continued, "and I cannot help thinking that for once Homer nodded . . .," which Professor Gerald Gunther interprets as a critical reference to Holmes's decision in the case of Schenck v. United States, 249 U.S. 47 (1919). G. GUNTHER, CONSTITUTIONAL LAW 1097 (Foundation Press 1975).
90. 183 F.2d 201 (1950).
91. Dennis v. United States, 341 U.S. 494, 510 (1951). Chief Justice Vinson quoted Hand's rule as "[I]n each case we must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
92. M. SHAPIRO, supra note 88. I do not mean to suggest that judge Hand in any way approved of McCarthyism. His opinion in United States v. Coplon, 185 F.zd 67.9 (1950), in which he reversed a conviction of conspiracy to deliver national defense information, on the grounds of illegal arrest and illegal wiretapping, demonstrates his commitment to constitutional procedure even in the face of evidence that "made out a case which must have satisfied any fair minded jury that she was engaged in the conspiracy.. . ." Perhaps his concurrence in the opinion of Swan, C.J., in United States v. Remington, 191 F.zd 246 (1951), is a better example of resistance to political persecution. There the court reversed, for lack of evidence, the perjury conviction of a person who had denied earlier Communist Party membership before a witch-hunting grand jury.
93. Masses Publishing Co. v. Patten, 244 F. 535 (1917).
94. Professor Gunther has suggested that there was consistency between Hand's opinion in Masses and the views he expressed against the "clear and present danger" standard in The Bill of Rights, supra note 72. Hand, Gunther says, thought the clear and present danger test was "too dangerous to free expression." See Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975). I am not persuaded. There is now a consensus among constitutional historians that during the summer of 1919 Zechariah Chafee, Jr., and Learned Hand pushed Holmes toward a more libertarian position on freedom of speech than he held when he wrote his opinion in Schenck v. United States, 249 U.S. 47 (1919). See RABBAN, THE EMERGENCE OF MODERN FIRST AMENDMENT DOCTRINE, 50 U. CHI. L. REV. 1205 (1983); Ragan, Justice Oiiver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919, 58 J. AM. HIST. 24 (1971); Gunther, supra at 720.
95. See Horwitz, History and Theory, 96 YALE L.J. 1825 (1987); Ackerman, supra note 43, at 462-465.
96. See L. HAND, Chief Justice Stone's Concept of the Judicial Function, in THE SPIRIT OF LIBERTY 201-208 (Knopf 1952).
97. Id. at 202-203.
98. Id. at 203. Hand is referring to Janes B. Thayer's The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893).
99. L. HAND, supra note 96, at 203.
Ioo. Id. at 203-204.
101. Id. at 204.
102. Id.
103. Id. at 204-205-
104. Id. at 2o5.
10 5. Id.
to6. Id.
107. Id. at 203.
to8. Id. at 204.
109. Id. at 205-2o6.
110. Id. at zo6.
111. Id.
112. Id.
113. Id. at 207.
114. L. HAND, supra note 72, at 60.
i 1 5. Id. at 6o-61 .
116. Id. at 54.
117. Id. at 34.
118. Id. at 61.
119. Id. at 6o.
Izo. Id. at 71.
121. Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
122. See Shapiro, The Most-Cited Law Review Articles, 73 CALIF. L. REV. 1540 (1985).
123. Wechsler, supra note 121, at 20.
124. Id. at 25.
125. Id. at 19.
126. Id. at 12.
127. Id.
128. Id. at 14.
129. Id. at 26.
130. Id. at 27.
131. Id. at 31.
132. Id.
133. Id. at 33-34.
134. Id. at 34.
135. Id.
136. Id.
137. Another representative sample of post-war legal culture can be found in the annual Forewords to the Supreme Court issue of the Harvard Law Review, which began in 1951. Not until Archibald Cox's Foreword in 1966, Constitutional Adjudication and the Promotion of Human Rights, 8o HARV. L. REV. 91 (1966), did a defense of the Warren Court appear in its pages. It was frequently attacked, often by disciples of Felix Frankfurter. See e.g., Brown, Process of Law, 72 HARV. L. REV. 77 (1958); Hart, The Time Chart of the justices, 73 HARV. L. REV. 84 (1959); Bickel, The Passive Virtues, 75 HARV. L. REV. 40 (1961); Kurland, Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government, 78 HARV. L. REV. 143 (1964).
`See the brilliant book by Peter Novick, That Noble Dream: The "Objectivity Question" and The American Historical Profession (Cambridge University Press, 1988).
* After the above text was completed, I learned of the existence of a collection of letters written by justice Holmes to Lady Clare Castelton, an Irish aristocrat, whom he met in Ireland during the summer of 1896. Copies are held in the Harvard Law School Library. I am grateful to the Harvard Law School for permission to quote from these letters.