ISSUE: Summer 1970
The birth and longevity of a great University, “based,” as the founder of the University of Virginia said, “on the illimitable freedom of the human mind,” would be a cause for celebration under any circumstances. The celebration is especially appropriate when universities throughout the land are challenged as the instruments of a repressive polity and culture and averred to be unworthy to survive.
No less appropriate than the occasion is the theme advanced for our reflection. The first and second Rectors of the University of Virginia certainly were not alone in the conviction that political and intellectual freedom are pre-eminent among all human values and that their protection is a prime responsibility of government. But it was Jefferson, particularly in the Declaration and the Statute for Religious Freedom, and Madison, particularly in the resolutions that became the Bill of Rights, whose words projected the ideas across the chasm of the years—not merely as the articles of private faith but as established doctrine of the Nation buttressed by its law and institutions. The University that they began and nurtured surely is the proper place for asking if that legacy is well preserved today and if its future is secure.
Though our summons is to think about the future, I do not read it to solicit an apocalyptic vision, whether of salvation or of doom. Prophecy of such dimension reveals more about the prophet than about the shape of things to come, so large is the contingent element in human destiny. Of course the fate of our freedom turns above all else on our capacity to save ourselves from being hoist with our new petard. The survivors of a nuclear engagement would assuredly have other problems to preoccupy their minds. We are not met, however, to appraise the probability of mankind’s self-destruction. What must concern us is more modestly that aspect of the future that is a perceptible continuant of both the present and the past. This is, in any case, the way a lawyer must construe the theme of our discussion to persuade himself that he may properly take part.
Even if this limitation is accepted, our subject is as broad as our culture, suggesting questions such as the effect on our psyches of mass communication, the development of the computer, urbanization and the growth of population, or, indeed, space exploration and the military budget. I mean, however, to confine myself to legal matters and specifically to explore the problems posed to law and lawyers in defining and protecting the essential freedom with which our sessions are concerned.
II
There is little in the original Constitution as it came from the Convention that will be significant for our purpose, though attention may be called in passing to the prohibition of ex post facto laws and bills of attainder imposed on both the Nation and the States. In general, the Framers worked on the assumption that the States, whose representatives they were, would adequately safeguard freedom of the individual, as indeed their State constitutions sought to do. The problem, as they saw it, was to assure that the central government they were engaged in founding should not itself become a threat to liberty. They sought to solve it by the very structure of that government, with such essential features as fixed terms of office, the differences between the House and Senate, the checks and balances of power separation, the concept of enumerated powers, and the additional precautions of the limitation on suspension of the privilege of habeas corpus and the ban on a religious test for holding federal office. Even the scope of the franchise for electing Representatives was remitted to determination by the States, since the electors were confined to those qualified to vote for the most numerous branch of the State legislature. When all of this was not conceived to be enough, the Bill of Rights was added. It too, however, as you know, was binding only on the Nation and did not restrict the States.
The First Amendment with its potent declaration that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” was thus a formulation of relatively narrow application when it was proposed and ratified. Indeed, Madison had sought to supplement it by the further statement that “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” arguing that “it is proper that every Government should be disarmed of powers which trench upon these particular rights” but the proposal did not pass the Senate.
The First Amendment has its analogues, of course, in all the constitutions of the States but they are often cast in less peremptory terms or have been so construed by the State courts. Hence, the extension of the First Amendment to the States by force of national authority made an enormous difference in the legal structure that supports freedom of conscience and expression. How that development occurred, and how nearly it did not occur, are, therefore, worthy of attention.
The Fourteenth Amendment following the Civil War provided that any person born or naturalized in the United States and subject to the jurisdiction is a citizen of the United States and of the State where he resides. It added that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” or “deprive any person of life, liberty or property without due process of law” or “deny to any person within its jurisdiction the equal protection of the laws.”
As Macaulay’s schoolboy is aware, the Supreme Court, after some initial floundering, found major content in the due process and equal protection clauses of the Amendment. In the initial period it found in these provisions an impressive barrier to governmental regulation of the economic order, deeming major interference with the autonomy of ownership a deprivation of property or liberty of contract without due process of law. Yet the Court that read due process as a guarantee of laissez-faire was slow, indeed, to read it as a safeguard of the freedom of expression. Writing in 1907, only two years after Lochner v. New York had held a State without authority to limit the length of the working day in bakeries, even Justice Holmes could view it as an un decided question whether the due process clause accorded any protection to freedom of speech (Patterson v. Colorado, 205 U. S. 454, 462). Fifteen years later it was said in a most sweeping dictum that the Constitution imposed no such limitation on the States. Only in 1925, and then in affirming, not reversing, a State judgment, did the Court say that it was prepared “to assume” for “present purposes” that “freedom of speech and of the press-which are protected by the First Amendment from abridgement by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States” (Gitlow v. New York, 268 U.S. 652, 666).
We may be sure that the assumption was in major part an answer to a telling charge of inconsistency, a charge advanced especially by Justice Brandeis, who believed that the due process clause had no relation to the substance of restraints, that its concern was solely with procedure. If it did apply to substance, as the Court so resolutely had maintained in economic matters, what answer could be made to Brandeis when he argued in dissent that he could not “believe that the liberty guaranteed … includes only liberty to acquire and enjoy property” (Gilbert v. Minnesota, 254 U. S. 325, 343). Hence, those whose main concern was to protect what they called “liberty of contract” made a very statesmanlike concession when they granted that the guarantee of liberty also comprehended freedom of speech and of the press. Indeed, as the protest against the Court’s judgments invalidating social legislation gained in intensity throughout the country, culminating in the crisis of a little more than thirty years ago, the strongest argument advanced by the defenders of the Court was that the liberty that it protected was not only that important to the vested interests, but included rights of such great moment to the disadvantaged as freedom of speech and of the press.
When the Court reversed itself in 1937, giving rein to the regulatory program of the New Deal period, it faced the crucial question whether the consistency that Justice Brandeis had demanded during the hegemony of liberty of contract did not now work in the opposite direction, demanding that due process be employed as no greater barrier to legislative limitation of the freedoms of expression than to economic regulation. The issue did hang briefly in the balance but the resolution was to reaffirm and strengthen the position that the First Amendment freedoms are included in the “liberty” of the Fourteenth and, more than this, to hold that the measure of permissible control or regulation is the same for Congress and the States.
Both history and theory were adduced to relieve the apprehension that the Court had thus embraced a double standard or, more precisely, had abandoned its first double standard only to accept another. The fact that the Framers had explicitly declared these values in the First Amendment to prevent abuses by the federal authority showed the primacy that they enjoyed in the thought animating our beginning as a nation. History apart, the self-government envisaged by the Constitution plainly could not function to shape governmental measures to the views of those they govern and promote the processes of peaceful change by law, unless the protests of the discontented and the disadvantaged could be uttered and be heard. How could new truth emerge or the arts stimulate imagination if the orthodox and the conventional could be established by official action? The balance of advantage with respect to getting and to spending, the scope of the dominion that derives from property and may impinge so heavily on others, simply have no similar relation to the individual’s fulfillment, the openness of our society, or the viability of our politics to correct such abuses as emerge.
So Madison’s submission in the Congress of 1787 prevailed after a century and a half in the judgments of the Supreme Court. (See, e.g., DeJonge v. Oregon, 299 U.S. 353; Herndon v. Lowry, 301 U.S. 242.) Nor were these judgments a mere coup de main, though they assuredly involved, as I have tried to show, an element of what Holmes called “the sovereign prerogative of choice.” The Fourteenth Amendment as a whole was meant to impose substantive restrictions on the States. I cannot agree with Justice Black that it was explicitly designed to make all of the Bill of Rights Amendments applicable to the States, though I admit that there is evidence to that effect (Adamson v. California, 332 U. S. 46, 71-123). Professor Charles A. Fairman demonstrated, I believe, that the evidence, on balance, does not warrant that conclusion. It is, however, certainly the case that the Amendment was designed to safeguard, and to authorize the Congress to protect, fundamental rights against impairment by the States. What rights were considered fundamental was left vague in Congress and the ratifying process and thus remitted to interpretation as occasion might arise. That no conception of the fundamental could, in our tradition, exclude freedom of conscience and expression is assuredly entirely clear.
III
I have traced the process by which the great rights delineated in the First Amendment became nationalized by the Constitution, in the sense that they have federal protection against action of the State and its officialdom as well as against national abridgement. I turn now to the definition of their content and the scope of the protection guaranteed.
We must revert at this point to the early years of our history. A Federalist Congress, apprehensive that the days of its supremacy were numbered, fearful of the machinations of the French and their supporters, sensing subversion in Re publican hostility, passed the Sedition Act of 1798. The statute made criminal the utterance or publication of “false, salacious and malicious” statements against the Government, the Congress, or the President, with “intent to defame them” or to “bring them” into “contempt or disrepute.” Prosecutions were initiated based on nothing more than caustic criticism of President Adams or his actions or the acts of his Administration, including even the statement by a witness to a cannon salute to the President that he wished the wadding discharged from the cannon had been lodged in the seat of the President’s pants. There were some twenty-five indictments, yielding ten convictions, followed not alone by fines but also by prison sentences, some of them quite shocking in the light of the offense, even if the Act was constitutional.
The Republicans responded by the famous Virginia and Kentucky resolutions, the former drafted by Madison and the latter surreptitiously by Jefferson, who was, of course, Vice-President of the United States. The Resolutions and Madison’s Report elaborating their position challenged the Act as a violation of the First Amendment. Rejecting both the English concept of seditious libel and the view, derived from Blackstone, that freedom of the press meant immunity to censorship but not to punishment for publication, the protests crystallized a national consensus that criticism of the Government and the officialdom, the policies that they pursue or measures they put forth, is protected by the Constitution; and, further, that the protection would be thwarted if a jury verdict that the criticism was unfounded could suffice to justify conviction. Jefferson’s election signaled the political acceptance of this view, exemplified thereafter by pardoning the prisoners and the return by Act of Congress of their fines. Calhoun, for example, in a Senate report in 1886 on the possibility of dealing with the mailing of abolitionist propaganda to the States where slavery was sanctioned, referred to the invalidity of the Sedition Act as a matter “which no one now doubts” (Report with S. No. 122, 24th Cong., 1st Sess., p. 3). The question, it is true, was never passed on by the Supreme Court, since appeals from federal convictions had not yet been authorized by statute. Numerous justices, however, including Holmes, found occasion through the years to endorse the assumption that the Act abridged protected freedom; and the Court’s opinion in the New York Times libel case, decided some five years ago, leaves no doubt that this is now established law.
The harder problem, one that has important current application, is how far speech or publication is protected when it goes beyond critique of men or measures and promotes or threatens conduct that infringes valid law. This was, indeed, the first major issue the Supreme Court faced in its interpretation of this aspect of the First Amendment. It arose in prosecutions under a statute passed in 1917, misleadingly called the Espionage Act, which made it a federal offense to obstruct or attempt to obstruct enlistment or the draft or to promote disaffection in the forces under arms. The charges were, in substance, that the defendants by denouncing our participation in or conduct of the First World War attempted such obstruction or promotion. After that war the issue was presented in a different context, in prosecutions under the State statutes, passed to put down agitation by the anarchists and Communists, which declared criminal the advocacy of the overthrow of government by revolutionary force.
Max Beerbohm may be right that history seems to repeat itself only because historians are repetitious. The fact is, however, that the pattern I have just described was closely duplicated in more recent years, though during the Second World War, thanks to Francis Biddle as Attorney General, prosecutions for obstruction of the draft were very few. Congress had, however, passed the Smith Act in 1940, directed like the earlier State statutes against the advocacy of revolutionary violence. When the cold war set in, the Communist leadership was charged with violation of that Act, resulting in a number of important judgments, starting with the Dennis case in 1951.
These decisions and opinions ranging through the course of fifty years are too diverse and numerous to deal with in detail, fascinating as their study is. I shall content myself with trying to depict the main positions that have had significant support and the conclusion the Supreme Court for the present may be thought to entertain.
The polar positions are indicated simply by two famous presidential statements. One is the familiar passage in the First Inaugural of Jefferson:
If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand un disturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
The second emanates from a lament of Lincoln’s in the deep shadows of 1863:
Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend into a public meeting, and there working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptible government, too weak to arrest and punish him if he shall desert. I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy.
The Jeffersonian pronouncement suggests the constitutional position repeatedly advanced by Justices Black and Douglas, that speech or publication unaccompanied by action never may be made the subject of repression. They are, however, the only members of the Court, in its entire history, who have considered this an adequate solution of the problem. Lincoln’s counter-thrust has had the greater weight, though it has called for drawing lines that it is hard, indeed, to draw.
One principle for drawing a decisive line, proposed by Justice Holmes, has come to this: “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” One difficulty here, however, is that this criterion subordinates freedom of speech or press to the prevention of any evil with which government may rightly seek to deal, provided only that what is said or printed creates a present danger that such evil may befall. Brandeis sought to meet this in Anita Whitney’s case by saying that the “evil apprehended” must be “relatively serious,” a useful mitigation, to be sure, but hardly a complete solution. Others have gone further and have said with Learned Hand that 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,” calling for a balancing of values by the Court. This approach has drawn forth the strong answer that the Framers did the balancing themselves when they drafted and put forth the First Amendment.
As courts have grappled with this complex dialectic, they have come, I think, increasingly to see that what is called for is a definition of the freedom guaranteed in terms of the purpose of the guarantee. Since a great purpose was indubitably to preserve freedom of debate respecting public men and measures, it is unthinkable that such debate may be repressed whenever the ideas advanced create a danger that persons, for whose behavior the speaker or writer is not legally responsible, may commit unlawful acts. But suppose the situation is such that the speaker or the writer would be held responsible for the unlawful conduct of such other persons, as he would be under the long-standing law of criminal complicity if his expression was designed to urge or to assist them to commit the unlawful acts involved? Can it have been a purpose of the Constitution to have altered the long-standing law as to the scope of criminal complicity—a position, incidentally, held by every legal system? If not, does not the principle that generally sanctions punishment of conspiracies and of attempts, as what are called inchoate crimes, apply to permit punishment of statements designed to produce unlawful conduct, whether or not the purpose is achieved? Jefferson surely thought it did in his reaction to the Burr conspiracy.
If the answer is, as I believe it is, that the general principles of criminal responsibility were not affected by the First Amendment, much of the problem I have stated is resolved. But there is still a lurking issue of predominant significance. Complicity by counseling or by incitement always has been understood to call for an intent to bring about the criminal result. But intent, as you well know, has been a word of many meanings in the law; and it is sometimes said that men are presumed to intend the “natural and probable consequences” of their actions. That concept was the root of the great evil in the prosecutions of the First World War. If Debs described the war as monstrous to a meeting that included persons subject to the draft, there was of course a danger that an influential leader such as he would encourage draft evasion; therefore, he “intended” to obstruct the draft. Even Holmes and Brandeis seem at first to have believed that that logic was correct. Not until the Abrams case did Holmes perceive that its acceptance operated to permit the statute to bar any effective or potentially effective criticism of the war. He met the problem then by the insistence that “intent” must mean a true purpose to induce forbidden conduct, the type of purpose that would be required for complicity in advocated conduct should it subsequently be performed.
That is, as it appears to me, the standard that emerges from the Supreme Court’s decisions. The crucial holding in the Dennis case, which later judgments have refined, is that the Constitution did not preclude a conviction resting on a finding that the defendants had combined to advocate the overthrow of government, with the specific purpose of achieving that result as soon as it could feasibly be brought to pass. The opinions in Yates, Noto, and Scales apply a stringent test of the sufficiency of evidence of that decisive purpose, a test that must be very stringent to avoid the pitfall I have noted in discussing Debs.
The meaning of this resolution is well illustrated by the judgment of the Court of Appeals of the First Circuit in the famous case of Dr. Spock and Dr. Coffin. The incompetence of counsel for the government combined with the ineptitude of the presiding judge produced convictions that quite obviously could not stand. But the Court in its reversal made the governing criterion quite plain. No amount of criticism of the war in Vietnam or sympathy for those whose consciences have led them to defy the draft can constitutionally be condemned and punished as counseling or aiding draft resistance. But if the purpose of such discourse is to stimulate resistance, or if there is combination to achieve that purpose, criminality may validly be found. Thus Coffin and another were remanded for retrial. The evidence respecting Spock was held deficient for conviction, a conclusion I regard as overgenerous to that defendant. It does, however, show how a criterion dependent on strict proof of a specific purpose safeguards freedom of discussion, while avoiding the anomaly that Lincoln so perceptively described. It is, therefore, my opinion that the test of specific purpose to incite unlawful conduct will in general survive.
IV
The condemnation of expression on the basis of its content has not only raised hard problems when there is a claimed relationship between expression and unlawful action. They are presented also when publication is alleged to constitute contempt because it threatens a fair trial and when it is impugned as libel or obscenity. There was a time when it was thought quite simply that the First Amendment did not speak to issues of this order; and many would no doubt be happier if that were still the law. I do not hesitate to state my own opinion that we should be grateful for the Court’s rejection of simplicity of this dimension, in favor of sustained judicial effort to determine in these contexts the right scope for freedom of expression.
In contempt, more than a purpose to pervert judicial action is demanded. The capacity of courts to ignore press denunciation has been thought to call for an especial showing that the publication raises a clear danger of perversion of the course of justice. In jury cases, such a showing may, of course, be easier to make but juries can, to some extent, be insulated from the press and venue can be shifted for that purpose.
In libel, where the purpose of the law is to safeguard reputation, public officials, public persons, and matters as to which there is a public interest have been held within the range of privileged attack and criticism, calling for the proof of conscious falsehood before liability may be imposed.
In obscenity, the most controversial area of all, the Court has made a most impressive effort to define the kind of publication that may fall outside the ambit of protection, demanding not alone that the material have a predominant appeal to prurience and be patently offensive under current national standards but also that it be “utterly without redeeming social value.” It is not surprising that communities long accustomed to express their piety by the repression of offensive publications should deem the Court’s criterion a libertarian excess. But an alternative that holds the local bigot within decent bounds is surely most elusive to express.
What I have said thus far is confined only to repression based upon the content of expression. There must, of course, be larger room for regulation of the time or place or circumstances of utterance or publication, even though such regulation has an incidental impact on the scope of freedom of expression. Here the full Court acknowledges that there is no escape from a judicial balancing of interests. To prohibit leaflet distribution on the public streets in the interest of preventing littering reflects distorted judgment that depreciates unduly the importance of a public forum. A supply of garbage cans can yield an adequate solution, leaving open this crude but important medium for the communication of ideas.
Time precludes further illustration of the multitude of situations that have been presented in the past or foreseeably may be presented in the future. It must suffice to say that while there have been differences and fluctuations in the Court’s decisions, as indeed in the votes of its members, they do not obscure a profound consensus that regulation that impinges on protected freedom must be necessary to protect competing interests of significant dimension to withstand a First Amendment challenge. Even then, its chances of survival are most doubtful if it really threatens a free market in ideas.
Freedom of speech and press and the companion freedom of association have thus achieved a scope as legal rights in our day that was unknown to our parents’ generation and is quite unmatched in any other legal system.
V
I have not thus far spoken of the safeguard of religious freedom in the First Amendment, though the judgment that the liberty protected by due process against State deprivation comprehended freedom of expression would necessarily extend to that. Indeed, the multitude of cases brought by the embattled sect that calls itself “Jehovah’s Witnesses,” to which we owe so many of the Court’s decisions, involved proselyting, making no less a claim to constitutional protection as an exercise of freedom of speech than as “free exercise” of their religion. When, for example, the compulsory flag salute for children in the public schools was finally stricken down in 1943, the ground was that it forced an affirmation of belief and thus involved “coercive elimination of dissent”; the religious point was only evidentiary.
It is, I think, entirely faithful to the concept that, thanks to Jefferson and Madison, became Virginia law in 1786 that claims of immunity on religious grounds from civil obligations or restraints, validly imposed in general, have found scant shelter in the definition of religious freedom ever since the claim was first rejected in the prosecutions of the Mormons for polygamy. This is a point to which some clergymen of our day would do well to give further study, as they ponder what belongs to Caesar and to God.
The hardest problem posed by the religion clause inheres in the distinctive prohibition of a law “respecting an establishment”—a formulation that did not receive full dress attention from the Supreme Court until the Everson case of 1947. The conclusion that the clause was designed to keep the central government out of the affairs of church and keep the churches out of government was based precisely on its derivation from the Virginia Act, with its specific purpose to bar the collection and the use of taxes for the support of religion or the propagation of a faith. The Jeffersonian conception of a “wall of separation” between church and state was held to be the standard of the First Amendment binding upon Congress and imposed by the Fourteenth on all the States.
It has been urged that separation precludes any govern mental action that may aid religion or religious institutions. The difficulty with so sweeping a submission is, however, that it generates a tension between the proscription of establishment and the safeguard of “free exercise.” A prison or the army, for example, may provide chaplains to minister to the religious needs of these communities. Is their compensation out of public funds forbidden as establishment or would their absence, given the restraints on prisoners and soldiers, be a prohibition of free exercise? Is the legislature precluded from making such concessions to religious sensibility as the special treatment the Selective Service Act purported to accord to persons conscientiously opposed to war in any form by reason of “religious training or belief”? Was the Supreme Court right in holding the denial of unemployment compensation to a Sabbatarian, found to be employable except for her unwillingness to work on Saturday, an impairment of free exercise? Or should it rather have considered the denial necessary to avoid a dispensation constituting an establishment?
It is not surprising that no full solution to this dilemmatic issue has emerged. There has, however, been a proper effort to construe “establishment” so as to give the broadest scope that can be given to “free exercise,” reducing pro tanto a collision of the interests guaranteed. Thus, in Everson the Court sustained, though by a bare majority, the use of public funds to pay the cost of busing students to their schools, parochial as well as public. Viewing the action as a welfare measure for all students, it was not defeated by the fact that it conferred an incidental benefit on the religious schools. That result was reaffirmed and extended recently to sustain a statute that requires local school authorities to lend secular textbooks to parochial school students, though Justice Black, the author of the Everson opinion, dissented strongly, insisting that there was a clear distinction between books and busing as an aid to the religious institutions. So too the Sunday closing laws have been upheld against assorted Sabbatarian objections, in the view that notwithstanding their religious origin, such measures serve the secular objective of providing a day of rest for all citizens, a goal not unreasonably thought to call for the prescription of a single day. That choosing Sunday incidentally satisfies the religious needs of many of the faithful did not make it an “establishment.” Nor was the incidental hardship to the Sabbatarians deemed to impair their religious freedom.
A different situation is undoubtedly presented if the State employs its funds or public institutions for the very purpose of promoting or assisting worship or religious teaching, although no coercion is involved. This was the meaning of the released time decisions, whatever one may think of making invalidity turn on the distinction between using the school premises and excusing students from attendance, as the Court’s decisions did. It is the teaching unequivocally of the cases striking clown the State prescription of a prayer to be offered in the public schools, whether it is “non-denominational” as New York’s Regents claimed for theirs or consists of an extract from the Bible. That these decisions were assailed throughout the country and in Congress as an interference with religious freedom, rather than welcomed as protection of such freedom, shows the distance that we sometimes travel from our roots. It is instructive on the strength of our tradition how far sober second thought about that issue appears now to have prevailed.
The two lines of decision I have noted obviously have great bearing on the formidable question whether government in subsidizing education may include religious schools. Does the principle of the bus and textbook cases sanction grants directly to the institutions for some purpose separable from religious teaching, like constructing dormitories or improving physical facilities or even the specifically secular instruction in the schools? It is easy to declare, as many do, that churches maintain schools for the indoctrination of their youth and any such assistance is designed to help the schools. But tax exemption also makes a contribution to the functioning of religious institutions. So long as it is granted on some broader ground, like the exemption of eleemosynary enterprise, its validity does not appear to be in doubt. I find it hard to think that the distinction between an exemption and a grant can have a constitutional dimension. Hence I believe that subsidies confined to furthering specific secular objectives that are common to all schools should be sustained. This is a point on which logic and experience may offer more than history to shaping the conception that should bind the future in this sensitive and controversial field.
VI
Thus far, I have confined myself to the great contribution of the First Amendment to the definition and protection of the freedom with which we are here concerned. I should not close, however, without speaking of one other right that is so central to political democracy. I mean, of course, the franchise. For national extension and protection of the right to vote has had enormous impact on the breadth of the consent from which, as the Framers taught, the just powers of the government derive.
The Constitution, as you know, did not confer a right to vote at all, but merely built on the State definition of the franchise in connection with the House of Representatives. Senators were to be appointed by the legislatures of the States and the States also were left free to frame the method of appointing their presidential electors. It shows the strength of republican sentiment in our early years that there was nonetheless steady expansion in the use of popular selection and, notwithstanding the initial property restrictions, progressive extension of the franchise.
Three constitutional amendments spoke directly to the problem: the Fifteenth in 1870 prohibited denial or abridgement of the right to vote “on account of race, color, or previous condition of servitude”; the Seventeenth in 1917 required popular election of Senators, employing the same formula as to the franchise that governed popular election of the House; the Nineteenth in 1920, modeled on the Fifteenth, forbade denial or abridgement “on account of sex.” With the end of Reconstruction, the Fifteenth Amendment held a promise to the Negro’s ear that steadily was broken to the hope. Many Supreme Court decisions did, to be sure, condemn deprivation of the franchise on account of color, whether the discrimination was overt or indirect. The point was that the Nation was in fact content to leave the blacks to their fate, a view that became a formal, working principle of politics when the Democratic Party won control of national administration in the early years of Cleveland’s second term. Even when Franklin Roosevelt began to court the Negro vote, in framing the coalition that supported the New Deal, the Supreme Court sustained the White Primary that was the instrument of Negro disfranchisement in many Southern States.
The first crucial change came in 1944, when the White Primary decision was expressly overruled, intimations of its ultimate demise having been made in 1941. But court decisions do not implement themselves and what was needed was effective implementation. That did not come until the Civil Rights Acts of our time, starting with the Act of 1957 and culminating in the drastic Act of 1965. Only in most recent years has it been possible to think that State manipulations working an abridgement of the right to vote on racial grounds may finally be near their end. The great thing is that it is possible to think that now.
While the Congress has thus been developing new sanctions to protect the franchise, the Court, it should be added, has made contributions of its own, no less significant in their effects and implications. The first and most important was, of course, the crucial and hard-fought determination to apply the Fourteenth Amendment guarantee of “equal protection of the laws” as a demand for equality in State legislative apportionment. What is required, Chief Justice Warren wrote five years ago, is “no less than substantially equal state legislative representation for all citizens, of all places as well as all races,” that is, numerically equal districts insofar as they are practically attainable. So also, it was held in the same year, does the Constitution prescribe with respect to Congressional districts, so long at least as Representatives are chosen on a district basis, as an Act of Congress provides they must be. It is surprising but enormously important that these decisions have been generally followed, with State reapportionments according to their standard virtually completed by the end of 1966.
Beyond this, the Court held in the amazing judgment striking down Virginia’s poll tax of $1.50, imposed as a condition of voting in State elections, that the Twenty-fourth Amendment, conservatively limited to abrogating such a tax in federal elections, had been quite unnecessary. Justice Douglas declared for the Court that “a State violates the Equal Protection Clause…whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Acknowledging the historicity of property qualifications, the Court deemed it sufficient to say: “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” And, finally, in an important judgment upholding a provision of the Act of 1965 purporting to modify New York’s requirement that voters be literate in English, the Court perceived authority in Congress under the enforcement clause of the Fourteenth Amendment to displace inequalities effected by State law to which it takes exception.
The interest in equality that has been so supported in our time has thus enormously enhanced the right to participate in choosing those who govern. This surely is an element of the political freedom, whose vitality and future we are seeking to appraise.
VII
In light of the developments I have described, are we not justified in thinking that legal protection of the rights of conscience and expression and participation in the choice of those who exercise authority has reached its apogee in our time? Is it not, then, one of the ironies by which Providence instructs us in humility that this should be the time when the significance of the entire legal effort is so violently challenged in the name of the blacks and of the poor?
Of course, the full enjoyment of the blessings of our freedom is impaired by poverty and by the fruits of past discrimination. Of course, we face enormous tasks in the rebuilding needed to enhance equality of opportunity throughout the land. Of course, we must devote ourselves to the great mission of achieving greater social justice than we have. Of course, the need is great and there is ground for the contention that its decent satisfaction has been much too long denied.
I put it to you, nonetheless, that at no time in human history have government and legal institutions been so shaped that they are more responsive to such just demands. This being so, let no one doubt our duty and our purpose to defend those institutions against any who would seek to tear them down. The problem of the future will not be to marshal such defense but rather to assure restraint and moderation in combatting the attacks that may arise. The defense of freedom must not be permitted to become the instrument of its impairment or subversion, as has sometimes happened in the past. Since “what to come” is “yours and my discharge,” should we not draw from a commemoration such as this renewed dedication to restraint and moderation in defending human freedom in our time?
