An outstanding biography

Justice for All: Earl Warren and the Nation He MadeJustice for All: Earl Warren and the Nation He Made by Jim Newton
My rating: 5 of 5 stars

I learned a great deal not only about Warren himself but about the Supreme Court and the history of California. Newton gives a thorough background of Warren before he was on the court and shows how his political principles developed over time and how his biography shaped his jurisprudence. While Newton is sometimes critical of his subject, especially regarding Warren’s important role in the removal of Japanese Americans from their homes during World War II, he convincingly portrays Warren as a very decent man with an abiding concern for justice and good government. Over time, a growing concern for the government’s responsibility to bring about a fairer society brought him more to the center politically and to leading the Supreme Court in requiring states to treat their citizens by the justices’ understanding of the rights that all Americans ought to enjoy.

Newton’s summary of the comments of one of Warren’s clerks gives a good glimpse of the picture that Newton paints. The clerk said “that the Supreme Court could not function with nine Earl Warrens. It would be too conscious of delivering individual justice and perhaps too heedless of the need to construct an architecture of law. But nor, Gaither added, can the Court survive without one Warren. Someone needs to look after the law, as Warren did, to see not only that it is faithful to its principles but also that it is effective in action, that it serves society and does not merely bind it, that is delivers not just abstract justice but actual fairness” (519).

That’s not the style of constitutional law that I prefer. But this book helped me to understand the case for it much better. While I thought that Newton sometimes slipped into hyperbole about Warren’s accomplishments and I thought his uncritical admiration for JFK was unwarranted, those were only tiny flaws in a truly informative and insightful work.

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    • If I recall correctly, Taylor Branch’s “Parting the Waters: America in the King Years, 1956-1963” portrayed JFK as somewhat reluctant to get involved in supporting civil rights. To be fair, Newton does mention this, and I probably would have been too in his position when this was still an edgy issue and the South was so important to Democrats. The textbook (lame, I know) that our college used for modern American history, America: A Concise History, also noted that the picture manly strength that was portrayed was belied by his poor health.

      My main concern really was that Newton’s presentation of JFK diverts very little from the Camelot image: the young, energetic glamorous president and his elegant wife. Now, Warren did seem to see JFK in this way and gave a stirring eulogy for him:

      It wasn’t that I wanted Newton to criticize JFK. It was just that his descriptions tracked so closely with the JFK myth and with Warren’s perceptions of him. I guess that I thought that most writers now tended to write about JFK in a more detached and reserved way.

      Now you see the rather thin understanding of things behind my comments. 🙂 Do you have strong opinions one way or the other about Kennedy?

  1. continued from here

    Here are some links on the Incorporation Doctrine that help explain the conflict to me:

    The phrase “privileges and immunities” appears more than two dozen times in the notorious 1857 Supreme Court case of DredScott v Sandford. The Court concluded that black persons were not entitled to the privileges and immunities of citizens, which the Court took broadly to include the rights to speak, bear arms, assemble, and travel freely. John Bingham, primary author of the Fourteenth Amendment, said that he used the phrase “privileges and immunities” to specifically overturn the language of Scott v Sandford.

    Bingham, it will be recalled, had proposed his amendment to avoid doubts as to the constitutionality of the Civil Rights Bill. Wilson, chairman of the Judiciary Committee, joined issue: “in relation to the great fundamental rights embraced in the bill of rights, the citizen . . . is entitled to a remedy. The citizen is entitled to the right of life, liberty and property. Now if a State intervenes, and deprives him, without due[162] process of law, of those rights . . .”

    Presumably the framers who listened to Bingham found his frequent shifts of position no less perplexing than they seem to us; consequently, they had an added incentive to cling to the vastly preponderant view that they were merely incorporating the limited provisions of the Civil Rights Act in the Amendment.

    Whatever be the weight that attaches to Bingham’s utterances, it needs to be noted that even his admirers read them restrictively. So, Kelly states that his speech of February 29 “makes it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantee of due process in the Fifth Amendment.” And tenBroek asks, “What Bill of Rights? Certainly not the first eight amendments to the Constitution. The answer is not left open[166] to conjecture: the Bill of Rights that contain (1) the comity clause . . . which guarantees the privileges and immunities of citizens of the United States; (2) the due process clause of the Fifth Amendment; and (3) the requirement that all shall be protected alike in life, liberty, and property, not explicitly mentioned in either body or amendments . . . this was the ‘immortal Bill of Rights’ of John A. Bingham.”

    Let Justice Black himself, the unremitting champion of “incorporation,” sum up, substituting for his word “corporations” the words “judicial processes”:

    The states did not adopt the Amendment with knowledge of its sweeping meaning under its present construction. No section of the Amendment gave notice to the people that, if adopted, it would subject every state law . . . affecting [judicial processes] . . . to censorship of the United States courts. No word in all this Amendment gave any hint that its adoption would deprive the states of their long recognized power to regulate [judicial processes].

    Pointing to the fact that the federal structure as established by the Constitution had left the entire domain of civil rights with the states, Justice Miller argues that if the claim made by the plaintiffs were followed, such an interpretation of the privileges and immunities clause would completely destroy the original design of the Constitution. The effect of such a construction he says, would be to “fetter and degrade the state governments by subjecting them to the control of Congress” and would “radically change the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”50

    Therefore, because of the extreme results that would follow, the Court considered itself obligated to reject such an interpretation “in the absence of language which expresses such a purpose too clearly to admit of doubt.”51 In other words, if the Congress which drafted the 14th Amendment had intended for the privileges and immunities clause to “radically alter” the federal system, then they should have explicitly said, for example, that “the entire domain of civil rights heretofore belonging to the states are now transferred to the jurisdiction of Congress.”

    Some adoption or incorporation is reasonable enough to read into 14A, but what’s odd is that they could have easily specified the whole Bill of Rights and the courts should have applied it much sooner if that was intended, making its original public meaning as such doubtful. It’s sloppy, revealing a lack of foresight regarding how it would be used to reverse the localization of power, beyond basic political equality for blacks, etc.

    In principle, I’m not opposed to incorporation, because it only binds (involuntary) government. My primary complaint is that the intersection of all of the constraints upon government should necessarily limit what it can do but they haven’t.

    Instead, those constraints are compromised and selectively enforced so that they actually end up imposing upon society rather than only on government. e.g. government should not even be able to run a school because that necessarily impacts free speech and the free exercise of religion. Nor should it be able to fund the arts since that necessarily favors some speech over others, even if randomly selected. Nor should it be able to grant exceptions to laws to get them passed, etc.

    The US Constitution is not a way of life, it is the cage of a violent overlord, and we are endangered not only as that cage is weakened but also as that cage expands to encompass us within it.

    Everything that any level of government touches becomes subject to its own constraints. e.g. religion is not necessarily protected from interference from government anymore because within its cage anything deemed “religious” must be eliminated.

  2. Thanks for these quotes and thoughts, Kevin. The 14th Amendment has a very odd history. I think that you’re right that it was sloppy from the beginning, and the selective incorporation of rights over time perhaps testifies to that. The biography of Warren describes Hugo Black’s thought on the issue as being influenced by the debates about the 14th Amendment’s ratification, but less about its broader history. He became a key figure in incorporation in the years before the Warren’s tenure and then in Warren’s early tenure.

    • Yeah, the part about 14A being proposed “to avoid doubts as to the constitutionality of the Civil Rights Bill” also struck me as very significant because 14A might then reasonably inherit from the debates and intent of that Civil Rights Bill, which is quite a bit different from what 14A actually did.

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