by Peter Irons
Praise for A People’s History of the Supreme Court
“Following in the footsteps of Howard Zinn’s A People’s History of the United States, Peter Irons tackles a most unlikely subject—the branch of government most remote from popular awareness and influence. A People’s History of the Supreme Court . . . brings alive the sweeping effects of seemingly remote, abstract judicial concerns . . . Irons offers a unique and inspiring view in which the deeply political nature of the Supreme Court is not a weakness unless we, the people, allow it to be.”
—The Denver Post
“Well-written and interesting . . . Irons performs a valuable service by focusing attention on the biggest question in constitutional law: What is the proper role of the Supreme Court in American life.”
—Chicago Tribune
“Irons shines. He goes beyond the bare text of the decisions, telling poignant stories from his research about the men and women whose rights were at stake in each case. Best of all, it is written in a style accessible not only to lawyers and history buffs but to all people with a stake in our constitution system.”
—Star-Ledger
“Riveting . . . Highly readable . . . Unlike many books on the nation’s third branch of government, A People’s History of the Supreme Court is a lively and provocative book.”
—Houston Chronicle
“[Irons] breathes abundant life into old documents and reminds readers that today’s fiercest arguments about rights are the continuation of the endless American conversation.”
—Publishers Weekly (starred)
“Peter Irons’s outstanding new book masterfully draws upon his dual perspectives as both a leading constitutional scholar and a pathbreaking civil liberties advocate. This exciting book vividly recounts the dramatic stories behind the Court’s landmark cases and memorably portrays the colorful individuals who brought and decided them. Every American should read this superb history of the Supreme Court.”
—Nadine Strossen, President, American Civil Liberties Union and Professor of Law, New York Law School
“This intriguing book about the Supreme Court is both concise and comprehensive. Peter Irons, a lawyer and historian, has written a book which should be read by any American who wants to understand how the Constitution and the rule of law have operated in the United States.”
—Robert F. Drinan, S.J., Professor of Law, Georgetown University Law School
“The landmark decisions of the U.S. Supreme Court come alive again in legal scholar Peter Irons’s first-rate people’s history. It is a riveting saga about constitutional democracy at work, filled with vivid narrative portraits of such illustrious Supreme court justices as John Marshall, Oliver Wendell Holmes, and Thurgood Marshall. A truly indispensable book.”
—Douglas Brinkley, Director, Eisenhower Center for American Studies, University of New Orleans
ABOUT THE AUTHOR
Peter Irons is a professor of political science emeritus at the University of California, San Diego, where he taught constitutional law from 1982 to 2004 and directed the Earl Warren Bill of Rights Project. A Harvard Law School graduate and civil liberties lawyer, he is a member of the Supreme Court bar. In the 1980s, he initiated the successful legal effort to vacate the criminal convictions of Fred Korematsu and Gordon Hirabayashi for violating World War II military orders that led to the internment of Japanese Americans. His previous books include Justice at War, The Courage of Their Convictions, May It Please the Court, and Jim Crow’s Children, all of which received Silver Gavel awards from the American Bar Association. His most recent book is God on Trial: Landmark Cases from America’s Religious Battlefields. He lives in Greenville, California.
PENGUIN BOOKS
An imprint of Penguin Random House LLC
penguinrandomhouse.com
First published in the United States of America by Viking Penguin, a member of Penguin Putnam Inc. 1999
Published in Penguin Books 2000
This revised edition published 2006
Copyright © Peter Irons, 1999, 2006
Foreword copyright © Howard Zinn, 1999
All rights reserved
LIBRARY OF CONGRESS CATALOGING IN PUBLICATION DATA
Irons, Peter H., 1940–A people’s history of the Supreme Court : the men and women whose cases and decisions have shaped our Constitution / Peter Irons.
p. cm.
Includes bibliographical references and index.
ISBN: 9781101503133
1. United States. Supreme Court—History. 2. Constitutional law—United States.
3. Law and politics. I. Title.
KF8742.I766 2006
347.73’2609—dc22 2006044779
The scanning, uploading and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions, and do not participate in or encourage electronic piracy of copyrighted materials. Your support of the author’s rights is appreciated.
Version_3
Dedicated to my daughters,
Haley Ellen Fox and
Maya Grace IronFox
Table of Contents
About the Author
Title Page
Copyright
Dedication
Foreword
Introduction
SECTION I - “To Establish a More Perfect Union”
Chapter 1 - “Morally Sinful by the Word of God”
Chapter 2 - “The Exigencies of the Union”
Chapter 3 - “Dishonorable to the National Character”
Chapter 4 - “The supreme Law of the Land”
Chapter 5 - “The Country Must Finally Decide”
Chapter 6 - “The Plot Thickens Fast”
Chapter 7 - “The Nauseous Project of Amendments”
SECTION II - “It Is a Constitution We Are Expounding”
Chapter 8 - “The Court Is Now Sitting”
Chapter 9 - “To Say What the Law Is”
Chapter 10 - “These Jarring and Discordant Judgments”
Chapter 11 - “The Good and the Wise”
Chapter 12 - “Great, Good, and Excellent Man!”
SECTION III - “Justly and Lawfully Be Reduced to Slavery”
Chapter 13 - “A Small, Pleasant-Looking Negro”
Chapter 14 - “Beings of an Inferior Order”
Chapter 15 - “Another Explosion Will Soon Come”
Chapter 16 - “A Higher Law Than the Constitution”
Chapter 17 - “An Evil Eye and an Unequal Hand”
Chapter 18 - “Our Constitution Is Color-Blind”
SECTION IV - “Liberty in a Social Organization”
Chapter 19 - “The Spectre of Socialism”
Chapter 20 - “The Work Was Light and Healthful”
Chapter 21 - “Falsely Shouting Fire in a Theatre”
Chapter 22 - “Every Idea Is an Incitement”
Chapter 23 - “The General Welfare of the United States”
Chapter 24 - “To Save the Constitution from the Court”
Chapter 25 - “Hughes Thundered Out the Decision”
SECTION V - “Beyond the Reach of Majorities”
Chapter 26 - “We Live by Symbols”
Chapter 27 - “A Jap’s a Jap”
Chapter 28 - “My Little S
oul Is Overjoyed”
Chapter 29 - “Give Me the Colored Doll”
Chapter 30 - “War on the Constitution”
Chapter 31 - “A Better Place Because He Lived”
SECTION VI - “A Right of Personal Privacy”
Chapter 32 - “You’ve Been Taking Pure Thalidomide”
Chapter 33 - “The Raw Edges of Human Existence”
Chapter 34 - “Truly a Pandora’s Box”
Chapter 35 - "I Fear for the Future”
SECTION VII - “It Is a Cultural War”
Chapter 36 - “One Nation Under God”
Chapter 37 - “The Values We Share with a Wider Civilization”
Chapter 38 - “A Blank Check for the President”
EPILOGUE
UNITED STATES CONSTITUTION
THE JUSTICES OF THE SUPREME COURT
NOTES
SOURCES FOR FURTHER READING
INDEX
FOREWORD
Although the Preamble to the United States Constitution begins with the words “We the People . . . ,” the volumes upon volumes that deal with constitutional law are remarkably devoid of human beings. How many Americans, of the huge number who have heard of Brown v. Board of Education, know that “Brown” refers to Oliver Brown and his eight-year-old daughter Linda in Topeka, or know anything about the long struggle of their family to bring the case before the highest court in the land?
How many, even if they have studied constitutional law and argued the case of Tinker v. Des Moines, know (unless they have read Peter Irons’s wonderful book The Courage of Their Convictions) the human story of Mary Beth Tinker, the thirteen-year-old suspended from school in 1965 for wearing a black armband in school to protest the war in Vietnam?
It is this situation that Peter Irons has set out to remedy, with a history of the Supreme Court that breathes life into the dry language of the judicial system, that looks behind the cases to the human beings crucial to the cases but long forgotten, that examines the realities of social conflict beneath the surface of legal argument.
The document created by the Founding Fathers was born of intense conflicts of race and class, yet there has always been a certain aura of disinterestedness around the decisions of the Supreme Court, notwithstanding the adversarial character of the cases before it.
Sharp divisions of interest are concealed behind abstract legal arguments. Substantive issues are obscured and arguments advanced, decisions made, based on technicalities of law. In the austere chambers of the Court, life-and-death matters are decided in an atmosphere of genial academic debate. It is a contribution of this book that the human beings behind these legal arguments are brought to the fore, giving the debates their proper significance.
At the highest levels of legal discourse, and embedded in popular belief, is the notion that something called “precedent” has ironclad power. The result of holding to this was long ago observed by Jonathan Swift in Gulliver’s Travels: It is a maxim among lawyers, that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly.
Swift’s irony is an exaggeration of course, but with a great deal of truth in it. The deference to precedent, without regard to “common justice,” will be found again and again in these pages, as Professor Irons takes us through the fascinating history of the Supreme Court and its decisions.
Yet, precedents are broken when the social forces demand it. Thus, it took more than half a century to overturn the principle of “separate but equal” enunciated in the case of Plessy v. Ferguson. Its overturn came not, as it might seem from a superficial reading of the arguments, from a reconsideration of the language of the Fourteenth Amendment, but from tumultuous changes in the United States and in the world: the disintegration of old colonial empires, the legacy of war, and the emergence of a movement among black people for equal rights.
The justices of the Supreme Court are not simply black-robed repositories of objective wisdom; rather, as Professor Irons reminds us, they come out of the political system, out of a social context, and each brings to the Court legal philosophies and moral attitudes that come out of his or her background. To understand this is to demystify the pronouncements of the courts, even the words of the Founding Fathers, and to recognize the Constitution as a living, changing document. “The Constitution,” he has said, “should adapt to the changing needs of a society, based on core values like the dignity of the individual.”
Thus, while Peter Irons is aware of the power of law, he is not deferential to it. He understands its magnetic hold on the public, but also its limitations. He knows, for instance, having been jailed as a result of his refusal to serve in an unconstitutional war, what the Roman statesman Cicero said a long time ago: “Silent enim leges inter arma” (The law is silent in wartime).
His resistance to the draft and the war in Vietnam came out of his involvement in the civil rights movement, and the pacifist philosophy of Gandhi and Martin Luther King. He came out of prison armed with a social conscience tempered by years of observing how the law can serve immoral ends. He was determined to turn law to good ends. After receiving his doctorate in political science at Boston University he went on to Harvard Law School, distinguishing himself in both endeavors. Almost immediately, he began turning out books, much admired by both specialists and general readers, on issues involving the intersection of law and politics.
His first book, New Deal Lawyers, based on untapped litigation files in the National Archives and on interviews with the lawyers who worked for Franklin D. Roosevelt, was very well received. He then became interested in the legal battles surrounding the internment of Japanese-Americans in World War II. He used the Freedom of Information Act to uncover the behind-the-scenes deceptions involved in FDR’s infamous order and the Supreme Court decisions affirming the constitutionality of that order. The result was his prizewinning book Justice at War.
The documents that Professor Irons uncovered in the course of his research on the internment cases became the basis for legal action, in which he was a crucial participant. He was now in his favorite mode, that of a lawyer-researcher-activist. He enlisted volunteer lawyers, many of them children of detention-camp inmates, and in 1983 drafted petitions asking the courts to vacate the wartime decisions; and one by one, starting with the case of Fred Korematsu and ending dramatically with the case of Gordon Hirabayashi, the convictions were overturned.
The Hirabayashi case then became one of sixteen cases Professor Irons wrote about in his book The Courage of Their Convictions, cases where ordinary Americans pursued their convictions all the way to the Supreme Court. Some won, some lost, but all displayed remarkable bravery in insisting on their constitutional rights, and the result is a wonderfully inspiring book.
In the early 1990s, Peter Irons achieved an extraordinary victory for the principle of free expression when he went into the National Archives, where the arguments made before the Supreme Court were housed. They had been recorded, put on tape, since 1955. He copied twenty-three of the tapes, dealing with critical issues of civil liberties, and then, with the help of the legal scholar Stephanie Guitton, edited them for publication, defying a National Archives rule. The resulting volume, and its accompanying tapes, were published in 1993 as May It Please the Court. There was a flurry of threats from the government, but Irons and Guitton held to their belief that it was the right of everybody to know what had happened before the Court. The government yielded, and now the tapes were open to the public.
Contemplating Peter Irons’s record, we may then know what to expect from A People’s History
of the Supreme Court—scrupulous legal scholarship, bold ideas, and an abiding concern for human rights, sometimes violated by the law, sometimes upheld, but always depending on the courage of ordinary citizens.
HOWARD ZINN
INTRODUCTION
“The Genius of the Constitution”
A People’s History of the Supreme Court begins in the early years of the seventeenth century, with the arrival of a few hundred British emigrants on the shores of a vast continent. These first settlers of a New World left behind most of their belongings, but they brought with them the English common law and the rights it granted “freemen” who vowed allegiance to God and King. This book ends in the early years of the twenty-first century, with the descendants of those English “freemen” now a small fraction of the quarter billion citizens of a diverse and divided nation, governed by a constitution that requires no profession of allegiance to any deity or secular ruler to enjoy its protections.
Between the “Body of Liberties” of the Puritan colonists and the American Constitution of today lies a dramatic story of efforts to secure “the blessings of liberty” to a people who have never reached agreement on what that evocative term really means. Too often in our history, Americans who have claimed the Constitution’s protection of their own “liberty” have denied that it equally protects fellow Americans who differ in race, religion, class, gender, or politics. For some two centuries, since the Constitution was ratified in 1789, disputes over the meaning of its broadly worded provisions have been decided by the Supreme Court of the United States, whose unelected members have often wielded the power to strike down the acts of elected lawmakers. Just over a hundred people have served on the Supreme Court in just over two hundred years. All but two have been white, all but two have been men, and all but seven have been Christian. Many of the landmark cases these justices have decided were brought by blacks, women, and religious and political dissenters. In a very real sense, the history of the Supreme Court reflects the appeals of powerless “outsiders” to the powerful “insiders” who have shaped the Constitution’s meaning over the past two centuries.