Virginia Law Review
February, 1996

RETHINKING THE CIVIL RIGHTS AND CIVIL LIBERTIES REVOLUTIONS

Michael J. Klarman [FNa1]

Copyright © 1996 by the Virginia Law Review Association; Michael J. Klarman

It is common wisdom that a fundamental purpose of judicial review is to protect minority rights from majoritarian over-reaching. Supreme Court justices themselves have frequently propagated this view. Most famously, Justice Stone wrote in his Carolene Products footnote that the Court should invalidate legislation that reflects "prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." [FN1] Justice Black once declared that courts stand "as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." [FN2] Justice Jackson proclaimed in his celebrated opinion in the second flag salute case that "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities." [FN3] And in his famous concurring opinion in Whitney v. California, Justice Brandeis wrote that one function of judicial review is to protect against "the occasional tyrannies of governing majorities." [FN4]

This understanding of judicial review--which I shall call the Court's heroic countermajoritarian function--exercises a powerful hold over our constitutional discourse. The rhetoric of heroic countermajoritarianism is, for example, prominently on display at the confirmation hearings of Supreme Court justices. [FN5] On the occasion of the fortieth anniversary of Brown v. Board of Education, [FN6] pundits' celebration of the Court's momentous contribution to the transformation of American race relations testified to the force the conventional wisdom exercises over our nation's opinion molders. [FN7]

The legal academy's reception of this popular understanding of the Court's countermajoritarian capacity has been more mixed. Many scholars appear wholeheartedly to embrace this conception of judicial review. For example, Michael Perry defends noninterpretive judicial review on the ground that without it, there would be no basis for objecting "to laws authorizing torture, establishing slavery, or even instituting another Holocaust"; [FN8] Perry thus implies that judicial review could prevent such atrocities. Judith Baer writes that without judicial review "there would be little hope for rights or for equality" and that individual rights in America "have never gotten very far without appeals to the Court." [FN9] Ken Karst declares that courts "restrain the majority's worst excesses, in the name of the constitutional values that define our national community." [FN10] Alpheus Mason opines that judicial review "advances the cause of peaceful change" by preventing the "oppression of individuals and minorities" that might encourage resort to the right of revolution. [FN11] Laurence Tribe writes that the function of the judicial branch "is to protect dissenters from a majority's tyranny." [FN12] Paul Murphy argues that without judicial review the populace would be "at the mercy of legislative majorities," [FN13] and he observes that since 1931 courts have protected "formerly helpless Americans" in their exercise of constitutionally-protected free speech rights. [FN14]

Other scholars, it is true, have challenged this conventional wisdom, denying that the Court possesses any substantial capacity to protect minority rights from majoritarian overreaching. In a classic article, political theorist Robert Dahl observes that, given any reasonable set of assumptions about the nature of the political process, "it would appear to be somewhat naive to assume that the Supreme Court either would or could play the role of Galahad." [FN15] Dahl's article is a distinguished contribution to a long tradition of scholarly and judicial writing that questions the Court's capacity to engage in countermajoritarian heroics. [FN16] For present purposes, the most noteworthy feature of this impressive corpus of skeptical scholarship is that its principal contributions were composed before 1960--that is, before Brown had achieved iconic status and before the Warren Court had produced its constitutional rights revolution. [FN17] Thus, Leonard Levy begins his mid-1960s reevaluation of judicial review by noting with apparent approval the skeptical assessments of the Court's countermajoritarian capacity provided in classic articles by Henry Steele Commager in the 1940s and John Frank in the 1950s. [FN18] But Levy, one of the past generation's most eminent constitutional historians, goes on to observe that under Chief Justice Warren the constitutional law of civil liberties "has enjoyed a golden age in our history." [FN19] He concludes that First Amendment freedoms and civil rights "have flourished and prospered in the pages of the [Warren] Court's opinions, with considerable fall-out in the world beyond." [FN20]

While there have been some recent contributions to the skeptical scholarly tradition which questions the Court's countermajoritarian capacity, they constitute a distinctly minority position. [FN21] Moreover, even the skeptics sometimes seem uncertain of their footing. Consider, for example, Barry Friedman's exhaustive, and generally persuasive, recent challenge to the idea that judicial review is plagued by "a countermajoritarian difficulty"-- that is, the notion that invalidation of statutes by an unelected, remotely accountable federal judiciary is inconsistent with basic premises of democratic governance. [FN22] Friedman denies the existence of any significant countermajoritarian difficulty, contending instead that judicial review is part of a "dialogue" between the judicial and legislative branches. [FN23] Then, in one telling footnote, he concedes without explication that the position for which he argues in roughly one hundred pages of text probably is inapplicable in First Amendment and some equal protection contexts, where the Court "most unabashedly seems to take on the majority in the name of minority rights." [FN24]

In any event, my purpose here is neither to deny that some scholars appreciate the overblown nature of the countermajoritarian hero image nor to dispute that the Court does occasionally play a limited countermajoritarian function. Both the countermajoritarian capacity of the Court and scholars' assessment of that capacity are measured along a continuum. My claim is only that the Court's capacity to protect minority rights is more limited than most justices or scholars allow. Part I of this Article seeks to establish that point by briefly reconsidering the Court's performance in several individual rights contexts--equal protection, substantive due process, freedom of speech, and the Establishment Clause. Rather than viewing the Court as protecting minority rights from oppressive majorities, as the conventional wisdom holds, I suggest that the Court's decisions are better understood as comprising two categories. Frequently the Court takes a strong national consensus and imposes it on relatively isolated outliers. Infrequently the Court resolves a genuinely divisive issue that rends the nation in half; on these occasions, roughly half the country supports the Court's determination. Neither of these roles, it seems to me, is accurately characterized as providing "havens of refuge for those who ... are helpless, weak, outnumbered, or ... are nonconforming victims of prejudice." [FN25]

Part II offers several explanations for why the myth of the heroically countermajoritarian Court has persisted in the face of consistently contravening evidence. Part III sketches a research agenda for constitutional historians, who are particularly wellsuited to revise the conventional understanding of the Court's countermajoritarian capacity and to demonstrate the limited parameters within which judicial review actually operates. This final Part outlines an alternative account of the modern civil rights and civil liberties revolution--one that emphasizes not the Court's countermajoritarian heroics but rather the deep-seated political, social, economic, and ideological forces that have rendered possible the transformation of large areas of constitutional doctrine. Specifically, I look at race discrimination, freedom of speech, the Establishment Clause, and criminal procedure, and argue that jurisprudential transformations in all four areas were congruent with and dependent upon the broad sweep of historical forces. The Court was not, in any strong sense, being countermajoritarian.

It bears emphasis that Part III is the core of this Article. Parts I and II should be seen primarily as an attempt to explain why scholars have failed to pursue the research agenda proposed in Part III. Thus, even if I have overstated the conventional view of the Court's countermajoritarian capacity or am mistaken in my explanations for the persistence of that understanding, the fact remains that constitutional scholars generally have failed to provide the sorts of social, political, and ideological accounts of the civil rights and civil liberties revolutions that Part III urges. Whatever the explanation for this gap in the literature, it requires filling.

I. THE COURT'S LIMITED COUNTERMAJORITARIAN CAPACITY

The Supreme Court does not play the strong countermajoritarian role in defense of individual liberties that popular wisdom ascribes to it. The conventional view probably exerts its greatest force in the area of race discrimination, and more specifically with regard to Brown v. Board of Education. [FN26] Brown, according to the usual story line, represents a paradigmatic example of the Supreme Court intervening to protect an oppressed minority from majoritarian overreaching. Without the Court's timely intervention, according to this view, there would have been, at least in the near term, no civil rights movement, no landmark civil rights legislation, and no dramatic transformation in American race relations. [FN27]

This understanding of Brown's significance is distorted. Brown is better understood as the product of a civil rights movement spawned by World War II than as the principal cause of the 1960s civil rights movement. The many scholars who have treated Brown as the inaugural event in the modern civil rights movement [FN28] have difficulty accounting for the momentous civil rights developments of the late 1940s and early 1950s--the landmark report of President Truman's civil rights committee, the executive orders desegregating the federal military and civil service, the integration of major league baseball, the exponential increase in Southern black voter registration, the enactment of a plethora of Northern antidiscrimination laws, the incipient crumbling of Jim Crow's outer facade in many Southern cities (for example, initial steps taken toward the desegregation of Southern police forces, juries, and public accommodations), and the emergence of a general war-related civil rights consciousness among African-Americans. [FN29]

Perhaps even more devastating to the traditional understanding of Brown as a heroically countermajoritarian decision are the opinion polls showing that by the time of the Court's intervention roughly half of the country supported racial integration in public schools. [FN30] The justices themselves, moreover, repeatedly expressed astonishment in their private discussions of the school segregation cases at the rapidity with which race relations had been changing. [FN31] Had the Supreme Court decided Brown twenty (perhaps even only ten) years earlier, the result would have been dramatically countermajoritarian. [FN32] Yet the Court declined more than one opportunity to render such a decision. [FN33]

The Court's rulings in another important equal protection context--sex discrimination--reveal an even more limited countermajoritarian bent. The Supreme Court did not invalidate a single law on sex discrimination grounds until 1971 [FN34]--that is, not until after the explosion in social and political support for the women's movement in the late 1960s. Well into the postwar period, the Court continued to reject equal protection challenges to laws excluding women from traditionally male occupations or defining jury service obligations differently for men and women. [FN35] The Court began to disfavor legislative classifications based on sex at almost precisely the same time that Congress, by the requisite supermajorities, passed a constitutional amendment to accomplish essentially the same objective. Most of the sex discrimination cases of the 1970s and early 1980s, moreover, involved legislation employing antiquated sex stereotypes that even most opponents of the Equal Rights Amendment would have been unwilling to defend. [FN36] The Court in these cases was doing little more than chopping down some dead legislative wood. Moreover, when the Court in 1981 finally encountered a sex classification that retained substantial support in public opinion--the exclusion of women from military combat positions and the draft--it declined to interfere. [FN37] Thus, the sex discrimination cases do little to confirm the view of the Court as countermajoritarian defender of historically oppressed groups. [FN38]

The point just made about the race and sex components of equal protection is also true of the Court's modern substantive due process jurisprudence, which principally involves the rights to privacy and sexual autonomy. None of the Court's decisions in this area corroborates the popular conception of the Court as countermajoritarian savior. When the justices in Griswold v. Connecticut [FN39] first articulated a constitutional right to privacy and invalidated a state ban on the use of contraceptives as applied to married couples, only two states in the nation (two of the three with the highest percentage Roman Catholic populations) had such laws. [FN40] Griswold is best understood as the Court constitutionalizing a dominant national consensus and using it to suppress a local outlier. [FN41] Certainly this decision can be seen as protecting minority rights in a certain sense--the rights of a minority within Connecticut--but this is hardly the heroic countermajoritarian role claimed for judicial review by proponents of the conventional wisdom. Congress, after all, can force local outliers to abide by national norms as well as the Court can.

At first blush Roe v. Wade, [FN42] which constitutionalized a right to abortion, seems to fit the conventional wisdom better. That decision, after all, had the effect of invalidating abortion laws in at least forty-six states. [FN43] Yet even with regard to Roe, the extent of the Court's countermajoritarianism is easily exaggerated. By the time Roe was decided in 1973, public opinion on the abortion issue had already been dramatically transformed, primarily as a result of the burgeoning women's movement. Seventeen states had recently passed legislation liberalizing their abortion regulations. [FN44] Opinion polls conducted soon after the decision revealed that slender pluralities or majorities of the public endorsed the Court's ruling. [FN45] Roe could have been dramatically countermajoritarian only if it had been decided years earlier--say, in 1964, when the abortion issue first appeared on the ACLU agenda, or even in 1967, when Planned Parenthood and the National Organization for Women still found themselves deeply divided over whether to call for repeal of abortion statutes. [FN46] Yet it seems safe to say that the justices would not have dreamed of invalidating abortion restrictions even as few as a half dozen years before Roe. [FN47]

The limited scope of the Court's countermajoritarian capacity is also evidenced by its most recent privacy/sexual autonomy case--Bowers v. Hardwick. [FN48] Let us suppose that Justice Lewis Powell had changed his mind about the outcome when it still mattered, as we know he almost did, [FN49] and together with the four dissenters in Bowers had produced a majority opinion recognizing at least a limited due process right for consenting adults to engage in private, homosexual activity. Would such a result have corroborated the view of the Court as heroic defender of minority rights from majoritarian oppression? I think not. The justices would not have contemplated constitutionalizing a sexual orientation right before the emergence of a powerful social and political gay rights movement in the 1970s and 1980s. One can easily imagine Bowers coming out differently in 1986, but a contrary result is virtually unimaginable, say, in 1966--the year the American Civil Liberties Union first formally endorsed the principle of constitutional protection for sexual orientation and several years before the American Psychiatric Association ceased labeling homosexuality a mental illness. [FN50] Had the Court decided Bowers the other way in 1986, contemporaneous opinion polls reveal that roughly half the country would have endorsed the ruling. [FN51] No minority rights savior here.

Turning from the Fourteenth Amendment to the First, one notes a similar absence of countermajoritarian heroics in the Court's modern free speech jurisprudence. [FN52] Meaningful constitutional protection for free speech is almost entirely a product of the post-World War I era. [FN53] In the immediate aftermath of that war, the Court had several opportunities to intervene against government suppression of leftwing political and industrial speech. [FN54] Yet public opinion at the time was highly agitated by a wave of anarchist bombings, massive labor unrest, and race riots in numerous cities. [FN55] In the "snowballing red hysteria of 1919," [FN56] Court intervention on behalf of the free speech rights of communists, anarchists, and IWW Wobblies would have been dramatically countermajoritarian. For the most part, the justices were not even tempted. [FN57]

The Court began to extend serious First Amendment protection to political radicals only in the 1930s--that is, after the first Red Scare had safely passed. [FN58] Additional First Amendment expansion took place in the late 1930s and early 1940s, mainly in cases involving the expression rights of Jehovah's Witnesses and labor unions. [FN59] Such decisions might well have been significantly countermajoritarian in the 1920s, but they hardly qualified as such by the time of the Second World War. As I shall suggest in Part III, background forces such as the growing political and economic power of organized labor, a gradual transformation in American attitudes toward religious minorities, and (relatedly) ideological revulsion against Nazi suppression of basic civil liberties impelled Americans to adopt an increasingly tolerant attitude toward free expression through the interwar years. Indeed when the justices in 1940 declined to protect the right of Jehovah's Witnesses to refuse to salute the flag, their decision was roundly criticized in both the law journals and the popular press. [FN60]

Over the course of the last generation, the Supreme Court has demonstrated an apparently robust commitment to protecting the free speech rights of political radicals, whether they be communists or fascists. [FN61] Yet decades ago, when such groups were widely perceived to threaten the nation's well-being, the Court declined numerous opportunities to protect free speech rights against majoritarian suppression. At the zenith of McCarthyism in the early 1950s, the Court sustained against First Amendment challenge the Smith Act prosecution of Communist Party leaders, the Taft-Hartley Act's requirement that labor union officers sign noncommunist affidavits, and local government requirements that public employees do likewise. [FN62] The justices' first substantial interventions against the legal manifestations of McCarthyism came only after the Army/McCarthy hearings in the spring of 1954 had precipitated the Senator's downfall and after Communist Party membership in the United States had reached rock bottom following the Soviet Union's brutal invasion of Hungary in 1956. [FN63] Even then, most of the Court's interventions can best be described as marginal. For example, the justices generally avoided constitutional rulings, instead narrowly construing statutes and thereby leaving open the possibility of congressional overruling. [FN64] Moreover, in the face of heavy congressional pressure, the Court in 1959 apparently retreated from its most important anti-McCarthyite decisions of "Red Monday" two years earlier, once again rejecting First Amendment challenges to state and federal legislative committee harassment of alleged communists. [FN65] Not until the mid-1960s did the Supreme Court extend genuine First Amendment protection to communists. [FN66] By that late date, one wonders how much anyone really cared. A cynical, though nonetheless apparently accurate, interpretation of the Court's free speech jurisprudence is that political dissidents become entitled to significant constitutional protection only when they cease to pose a serious threat to the status quo--that is, communists and Ku Kluxers in the second half of the 1960s, but not, respectively, in the 1950s or 1920s. [FN67] Further, according to this interpretation, the Court protects the expression rights of pesky but nonthreatening dissidents (Jehovah's Witnesses) and of mainstream speakers (labor union picketers in 1940 but not 1920). Precious little corroboration of the Court's countermajoritarian heroics appears in the free speech context.

My final example of the limited scope of the Court's countermajoritarianism derives from a doctrinal compartment that appears, at first blush, to be fertile soil for the received wisdom: the Establishment Clause. Surely, one might contend, if any modern individual rights decisions have been countermajoritarian, they are the school prayer and Bible reading cases of the early 1960s. [FN68] On further reflection, though, the countermajoritarian nature of these rulings seems more modest than at first appears.

There is no denying that Engel and Schempp contravened to a certain extent public opinion, as manifested in polls revealing that anywhere from sixty to eighty percent of the public favored the outlawed practices, defiance of the rulings by hundreds of local school districts, and support by a majority (but not the requisite supermajority) of congressmen for proposed constitutional amendments to overrule the decisions. [FN69] Yet situating the Court's Establishment Clause decisions within a broader historical context once again illuminates the limited countermajoritarian capacity of judicial review. The Court barred prayer and Bible reading from public schools only after the dramatic disestablishment of Protestantism as America's unofficial religion in the middle decades of the twentieth century--a phenomenon explored at some length in Part III. [FN70] While Engel and Schempp were defied in many locales, studies have found that prayer and Bible reading in public schools had declined significantly by the mid-1960s, [FN71] suggesting that resistance to the Court's decisions was not nearly so intense, for example, as that manifested toward Brown. Outside the South, which was well-practiced at resisting Supreme Court mandates, the school prayer and Bible reading decisions were not so unpopular that they incited prolonged resistance. While the rulings plainly were contrary to the preferences of a national majority, they were not dramatically countermajoritarian, which is what they would have been had the Court rendered them a generation earlier.

To sum up, then, a quick review of some of the Court's leading individual rights decisions of the modern era fails to corroborate the conventional image of the Court as countermajoritarian hero. Apparently the justices possess neither the inclination, nor the power, to play such a role. [FN72] Rather, the modern Court's individual rights jurisprudence can be usefully distilled into two general categories. First, constitutional adjudication frequently involves the justices' seizing upon a dominant national consensus and imposing it on resisting local outliers. [FN73] Cases illustrating this pattern include Griswold v. Connecticut [FN74] (striking down a state ban on contraceptive use, as applied to married couples); Gideon v. Wainwright [FN75] (requiring state- appointed defense counsel in all felony cases); Pierce v. Society of Sisters [FN76] (invalidating a state law barring children from attending private schools); Harper v. Virginia Bd. of Elections [FN77] (invalidating a poll tax); Coker v. Georgia [FN78] (forbidding imposition of the death penalty for the crime of rape); and Moore v. City of East Cleveland [FN79] (invalidating legislation denying certain blood relatives the right to live in a single household). Second, less frequently and far more controversially, the Court intervenes on issues where the nation is narrowly divided--racial segregation in 1954, the death penalty in 1972, abortion in 1973, affirmative action in 1978, and (with the shift of a single vote) sexual orientation in 1986. [FN80] On these occasions, the justices seem, whether consciously or not, to be endeavoring to predict the future. [FN81] Obviously their efforts have been more successful on some occasions than others. For present purposes, however, the significant point is that with regard to neither of these two categories of decisions--suppressing outliers on the basis of a dominant national consensus or intervening "at the margin" on narrowly divided issues--can the Court accurately be portrayed as providing a "haven of refuge" for minorities suffering persecution from overreaching majorities.

To risk putting the point somewhat cynically, the Court identifies and protects minority rights only when a majority or near majority of the community has come to deem those rights worthy of protection. [FN82] Judicial review operates only within the parameters established by the social, political, and ideological context within which judges function. [FN83] Thus it was possible for the Court to invalidate racial segregation in public schools in 1954, not 1944; sex discrimination in 1971, not 1961; abortion restrictions in 1973, not 1963; and restrictions on radical political affiliation and speech in 1965, not 1955.

None of this, of course, is to deny that judicial review possesses some countermajoritarian capacity. Striking down local laws on the basis of a national consensus--which is what most constitutional adjudication is about-- does protect local minorities. And on rare occasions the Court does frustrate the will of a slender national majority. [FN84] Interestingly, neither of the two epochal decisions of the postwar period--Brown and Roe--fits this description, as the Court on both occasions probably had a narrow majority, or at least a plurality, of the nation on its side. Engel and Schempp, on the other hand, almost certainly do fit this description. Yet, as I have noted above and shall elaborate in Part III, even these rulings were not nearly so countermajoritarian as they are generally portrayed.

II. WHY THE PERSISTENCE OF THE MYTH?

Why does the myth of the Court as countermajoritarian hero retain such powerful force in the face of substantial contravening evidence? This Part offers three explanations. The first is simply stated: Brown. The second is psychological--our need to be comforted in the face of a terrifying reality: majorities can and do perpetrate many awful deeds. The third explanation is the most complex, yet also possibly the most important. It focuses on a misconception that constitutional historians are well equipped to elucidate and perhaps to remedy--a theme to which I shall return in Part III. The persistence of the myth of the Court's countermajoritarian heroics, according to this third account, is attributable to the tendency of judges and scholars to understand the world in ahistorical terms--specifically, to ignore the complex background context from which judicial decisions emanate.

A. Brown

The conventional assessment of the Court's countermajoritarian capacity has been distorted, I believe, by a single decision--Brown. Because that ruling rescued us from our racist past, the conventional story line runs, the Court plainly can and does play the role of heroic defender of minority rights from majoritarian oppression. My colleague John Jeffries has nicely captured the point: "The image of the heroic Court, stepping in where others dared not, to free an oppressed people and relieve the nation of the crippling legacy of segregation, is cherished in the American memory." [FN85] And, one might plausibly extrapolate, if the Court could end the legal oppression of African- Americans, why could it not do the same for women, gays and lesbians, political radicals, and so forth?

The view that Brown was fundamentally responsible for whatever racial progress one believes this nation has experienced since World War II is so deeply ingrained today as to be virtually immune from challenge. Just as Brown has become normatively sacrosanct, in the sense that one cannot question its correctness as a matter of constitutional theory without inviting political attack, [FN86] it appears that Brown's significance has become positively sacrosanct, in the sense that one cannot question the extent of the decision's contribution to racial progress without exposing one's motives to question. [FN87] It is not difficult to understand how Brown became so obviously compelling as a policy outcome that any constitutional theory unable to justify the decision would appear impoverished and unacceptable. [FN88] It is less clear why society's overwhelming repudiation of statemandated racial segregation today should inhibit dispassionate inquiry into the relative importance of the Supreme Court's contribution to that present posture. Perhaps the best explanation for this lopsided focus on Brown has to do with the greater salience of Supreme Court decisions, as compared with the background social, political, economic and ideological forces that, as I have argued elsewhere, were propelling the nation ineluctably toward greater racial equality. [FN89] These forces included urbanization and industrialization, the Great Migration, economic and educational progress among African-Americans, revulsion against Nazi theories of white supremacy, the Cold War imperative for racial change, and so forth.

Whatever the epistemological or psychological explanation for our fixation on Brown, the fact itself remains puzzling. Not only, as noted above, were fundamental changes in race relations taking place in the late 1940s and early 1950s, [FN90] but many of the justices themselves highlighted the significance of these changes as they contemplated resolution of the school segregation cases. For example, in a draft concurring opinion that Justice Jackson ultimately decided not to publish, his principal rationale for invalidating public school segregation was the "'spectacular"' progress already made by blacks. [FN91] Similarly, in a private memorandum he prepared while Brown was pending, Justice Frankfurter noted "'the great changes in the relations between white and colored people since the first World War"' and further observed that "'the pace of progress has surprised even those most eager in its promotion."' [FN92] At the Court's conference on Brown, Justice Reed remarked upon the "'constant progress in this field [public schooling] and in the advancement of the interests of the negroes"' in areas such as transportation, voting and employment, while Justice Burton noted the encouraging trend against segregation in restaurants and the armed forces. [FN93]

If Brown was as critical to this nation's racial enlightenment as the conventional wisdom suggests, it is puzzling not only that substantial change in race relations antedated Brown, but also that strikingly little public school desegregation took place in the decade after the Court's intervention. Ten years after the justices unanimously condemned racial segregation in public schools, only about two percent of black Southerners attended school with whites, and the figure in the Deep South states was not significantly above zero. [FN94] Only the intervention of the national political branches in the form of the 1964 Civil Rights Act and stringent executive branch enforcement guidelines produced significant amounts of public school desegregation in the late 1960s and early 1970s. [FN95] Unless one can establish a direct linkage between Brown and the civil rights movement that produced the momentous 1964 Civil Rights Act and 1965 Voting Rights Act--a connection that has yet to be compellingly demonstrated--it is not obvious that Brown played nearly so fundamental a role in the transformation of American race relations as is commonly supposed. [FN96]

Whatever the facts, the view that Brown rescued the nation (on some accounts, almost singlehandedly) from its racist past predominates today. Michael Perry suggests that without the Court's intervention in Brown, we would have had no "means of ridding ourselves of such a blight as segregation." [FN97] C. Herman Pritchett observes that without Brown there would have been no 1964 Civil Rights Act. [FN98] John Jeffries declares that Brown "launched a revolution," and Jack Greenberg observes that it "laid the foundation for the civil rights movement." [FN99] J. Harvie Wilkinson III says that Brown "may be the most important political, social, and legal event in America's twentieth-century history." [FN100] Those who believe that Brown was primarily responsible for this nation's racial enlightenment might naturally also accept the notion of the Court's heroic countermajoritarian capacity. It is revealing that a whole generation of eminent scholars and judges who forcefully questioned the extent of the Court's capacity to protect individual liberties from majoritarian overreaching--for example, Felix Frankfurter, Learned Hand, Robert Dahl, Henry Steele Commager, John Frank, H.B. Mayo, and Loren Beth--wrote either before Brown had been decided or at least before it had achieved iconic status. [FN101] In 1957 it was still possible for Robert Dahl realistically to assess Brown's significance, just as in 1959 it was still possible for Herbert Wechsler to question the decision's normative soundness. [FN102]

B. Psychological Reassurance

Majority rule can be a scary thing if one contemplates the many atrocities perpetrated by democratic majorities in this country, not to mention in the rest of the world. (Hitler won overwhelming majorities in national referenda before he stopped conducting them.) Democratic majorities have enslaved millions of African-Americans in the antebellum South; interned Japanese- Americans during World War II; imposed complex codes of racial subordination in the antebellum North as well as the ante- and postbellum South; tolerated and sometimes actively perpetrated discrimination against Jews, Catholics, and other religious minorities; and persecuted political dissidents at all levels of government. This is hardly a track record to inspire great confidence in the unfettered sovereignty of democratic majorities.

For those troubled by such a thought, judicial review represents, in the words of the eminent political scientist Edward Corwin, "democracy's attempt to hedge its bet." [FN103] As a society we yearn, in the words of another noted political theorist, for "a political system which permits the majority to do right but prevents it by law from doing wrong." [FN104] Whether a system of judicial review that invokes minority rights to invalidate majoritarian legislation can be normatively reconciled with principles of democratic governance is a conundrum that has plagued statesmen and jurists since the inception of the American republic.[FN105] For present purposes, though, the key point is positive, not normative: We have a judiciary which plainly understands its constitutional role to include the protection of minority rights, yet each of the abuses enumerated above went unchecked by judges for lengthy periods of time, if not entirely. The justices did not forbid the Japanese-American internment; rather, they sanctioned it. [FN106] The Court did not forbid slavery; rather, it ruled the institution was protected against federal interference by the Due Process Clause. [FN107] The justices did not initially forbid racial segregation or disfranchisement; rather, they invalidated on federalism grounds national legislation designed, at least in part, to guard against such abuses. [FN108] One could go on, but the point seems evident.

While one can appreciate the psychological imperative for believing in the Court's countermajoritarian heroics, the historical record plainly suggests that such a view is chimerical. The Court safeguards minority rights only after a majority has come to acknowledge their legitimacy.

C. Thinking About Judicial Review Ahistorically

The third, and perhaps the most important, explanation for the prevalent mythology surrounding the Court's countermajoritarian capacity involves the profoundly ahistorical way in which most judges and scholars approach issues of judicial review. Scanning today's constitutional universe, it certainly appears that the Court is ready and able to take strong stands, for example, against race or sex discrimination and in defense of politically dissident speech. [FN109] If it is possible for the justices to do so today, this mode of thinking proceeds, then why could they not have done so fifty years ago? There follows a deduction that past decisions failing to adequately protect minority rights were unfortunate, but quite avoidable, mistakes--rulings that realistically could have gone the other way had the justices simply evinced greater wisdom or fortitude.

Yet to analyze past Court decisions this way is often profoundly to misunderstand them by neglecting the social, political and ideological context in which they were rendered. Consider in this regard the way that contemporary scholarship tends to portray Plessy v. Ferguson. [FN110] It is fair to say that Plessy is generally vilified today as one of the two most egregious decisions in Supreme Court history (along with Dred Scott). Michael Perry calls Plessy "ridiculous and shameful"; Judith Baer labels it "racist and repressive"; Paul Oberst calls it, simply, "a catastrophe." [FN111] Ronald Dworkin writes that "[m]ost lawyers now agree that the [Plessy] Court made a grave mistake." [FN112] Robert Harris calls Plessy "a compound of bad logic, bad history, bad sociology, and bad constitutional law." [FN113]

Yet it is an interesting question whether a contrary result at that time was realistically possible. To portray Plessy as simply a product of racist judging is to fundamentally misunderstand it. Background social, political, economic, and ideological forces created a climate within which judicial invalidation of a railway segregation law would have been dramatically countermajoritarian, and indeed virtually unthinkable. These forces included the triumph of virulent strains of white supremacy in the South, partially in response to the perceived threat that Populism would produce interracial economic and political alliances; a growing desire for sectional reconciliation which could be secured only with a return to Southern "home rule" on the race question; the incipient growth in Southern black migration to Northern cities which increasingly predisposed Northerners toward adopting their own segregationist practices; the passing from the scene of the last remnants of an abolitionist generation that had been committed to genuine racial equality; the triumph of social Darwinism and theories of scientific racism; the widespread concern that imperialist expansion would create a growing class of nonwhite citizens; and the immigration of millions of Southern and Eastern European immigrants (disproportionately Catholic and Jewish) which tended to make Northerners more sympathetic toward the racially exclusionary practices of Southern whites. [FN114] The Plessy decision was, indeed, so fully congruent with the dominant racial norms of the period that it elicited little more than a collective yawn of indifference from a nation that would have expected precisely that result from its Supreme Court. A generally consistent body of state and lower federal court precedents had sustained the "separate but equal" doctrine for a quarter century before the Supreme Court provided its imprimatur in Plessy. [FN115] Our foremost academic authority on Plessy, Charles Lofgren, observes that "the nation's press met the decision mainly with apathy." [FN116] How can a ruling that could not realistically have come out the other way be "a grave mistake," "ridiculous and shameful," or "a catastrophe"?

The importance of situating past decisions within their historical context is a point of general applicability. When one thinks ahistorically about issues like race discrimination, sex discrimination, separation of church and state, or freedom of speech, the result often is a miscalculation of the countermajoritarian capacity of judicial review. Judges today, for example, are able to invalidate racially discriminatory laws largely because there exists an overwhelming national consensus against malevolent race discrimination (as manifested in the landmark civil rights statutes enacted during the 1960s). From the post-Reconstruction period through World War II, however, judges generally possessed neither the inclination nor the power to invalidate racial segregation in most of its permutations. [FN117]

Let me offer two other illustrations of this prevalent tendency to think about past Court decisions in ahistorical terms: Korematsu v. United States [FN118] and Dennis v. United States. [FN119] Both decisions, it seems to me, are commonly regarded today as "mistakes." That is, they are not viewed as simple and almost inevitable products of their historical contexts, but rather as rulings that easily could have been avoided had the justices simply demonstrated greater wisdom and fortitude. We pride ourselves on believing that the Japanese-American exclusion and internment could not take place today, even under similar wartime exigencies, and that if it somehow did the Court would rightly strike it down. Thus Justice Scalia has recently referred to the "misguided military order" in Korematsu. [FN120] Michael Perry calls Korematsu "almost universally discredited"; Laurence Tribe describes it as "infamous"; Judith Baer calls the decision "racist" and a "disgrace"; Scott Powe observes that "the injustice was so plain." [FN121] David Garrow labels Korematsu "one of the Court's two most heinous decisions" since Plessy. [FN122]

But this interpretation of Korematsu seems quite dubious. Only by ignoring the context in which the military exclusion order and the executive decree authorizing it were issued can we confidently conclude that a "right-thinking" Supreme Court would have invalidated it. In late 1941 and early 1942, there existed a widespread conviction that the Japanese raid on Pearl Harbor would soon be followed by an invasion of the West Coast. [FN123] Indeed some newspapers actually reported soon after Decemberthat such an invasion was underway. [FN124] In January 1942 the Roberts Commission report fed fuel to the fire by finding that Japanese espionage on Hawaii had contributed to the debacle at Pearl Harbor. [FN125] A string of sweeping Japanese military victories in the South Pacific further inflamed public opinion in the United States against Japanese aliens and Japanese-American citizens. By early 1942, most West Coast politicians and national opinion-molders--e.g., Walter Lippmann and Westbrook Pegler--were endorsing exclusion and internment. Congress passed the bill criminalizing defiance of a military exclusion order by voice vote after the most perfunctory debate. [FN126] Even the American Civil Liberties Union was bitterly divided over the constitutionality of the military exclusion order, ultimately concluding that the demands of national security during wartime could justify exclusion of citizens from a military zone. [FN127] This was the historical context within which Korematsu was decided; it is often conveniently ignored today by those disparaging the decision. Indeed, the pressure for internment was so great in early 1942 that one might plausibly question whether there would have been as many as three dissenters on the Court had Korematsu been decided while the outcome of the war was still genuinely in doubt, rather than in December 1944. By the time Korematsu was decided, the military had already announced the rescission of its exclusion order. [FN128]

The prevalent tendency to think about judicial review ahistorically is also illustrated by modern attitudes toward the Dennis decision. Today most people believe that the Supreme Court made a grievous error in declining to stand up for freedom of expression and association when confronted with the excesses of the McCarthy era. Justice Frankfurter's most recent biographer, Mel Urofsky, calls his subject's Dennis opinion a "judicial abdication of responsibility." [FN129] Martin Shapiro criticizes thejustices in Dennis for failing "to protect the First Amendment against flagrant violation when they didn't want to protect it." [FN130] Michael Parrish calls the Dennis result "disastrous," and Ronald Dworkin labels it "shameful." [FN131]

Yet the notion that the Dennis Court simply made a mistake, an ill- considered judgment that greater wisdom and courage could have prevented, seems dubious when the historical context of the decision is reconstructed. Dennis was decided in 1951, when McCarthyism was at its peak. Within the preceding two years, mainland China had fallen to the communists, the Soviets had detonated their first atomic bomb, North Korea had invaded the South, Klaus Fuchs and the Rosenbergs had been arrested and charged with transferring nuclear secrets to the Soviets, and Senator Joe McCarthy had given his famous speech at Wheeling, West Virginia, announcing pervasive communist infiltration of the Truman State Department. [FN132] The Red Scare was not limited to the minds of a handful of anticommunist witchhunters; virtually the entire nation was overcome. [FN133] As late as the mid-1950s, the American Civil Liberties Union remained bitterly divided over whether to regard Communist Party affiliation as protected by the First Amendment. [FN134] Politically liberal organizations, such as the Congress of Industrial Organizations, the NAACP, and the American Jewish Committee, conducted internal investigations and expelled members alleged to be communists. [FN135] It was the liberal cofounder of Americans for Democratic Action, Hubert Humphrey, who in 1954 proposedlegislation to outlaw the Communist Party. [FN136] Against this backdrop, it is unrealistic to suppose that a majority of the Supreme Court could have denied the constitutionality of loyalty oaths, legislative anticommunist investigations, or criminal prosecutions for subversion.

I have offered as examples three famous Supreme Court decisions that are typically vilified today for their failure adequately to safeguard individual liberties from majoritarian oppression. In none of these cases, I believe, was a contrary outcome realistically possible. Only by ignoring the background historical context of these decisions can we delude ourselves into thinking otherwise. Nor are these three rulings unrepresentative in their revelation of the limited countermajoritarian capacity of judicial review. Just as the Court could not realistically have invalidated racial segregation in public schools before the dramatic transformation in American racial attitudes spawned by World War II, so it could not plausibly have forbidden sex discrimination before the rise of the women's movement, articulated a constitutional right to sexual autonomy before the burgeoning of the gay rights movement, or banned prayer from the public schools before the gradual undermining of the unofficial Protestant establishment. The principal reason many people today think otherwise is because of a pervasive tendency to reflect upon constitutional issues in light of today's deeplyingrained assumptions and social context, rather than seriously endeavoring to reconstruct the past horizons of those judges actually charged with resolving constitutional disputes. So long as we approach constitutional issues ahistorically, we will continue to exaggerate the countermajoritarian capacity of judicial review.

III. RETHINKING THE CIVIL RIGHTS AND CIVIL LIBERTIES REVOLUTIONS

Constitutional historians would appear to be particularly well- equipped to explore, illuminate, and perhaps even remedy this distorted perspective on judicial review. By situating constitutional disputes within their complex historical contexts, constitutionalhistorians can identify the sorts of background forces--political, social, economic, cultural, ideological--that render possible dramatic shifts in constitutional doctrine. Excavating and exposing these potent, yet often intangible, background forces will facilitate understanding of the parameters within which judicial review actually operates. Thus constitutional historians can inform our understanding of the margin (where countermajoritarian judicial review is possible) and the core (where it is not), explode the myth of the heroically countermajoritarian Court, and foster more realistic expectations regarding the capacity of judicial review to safeguard individual liberties.

There is surprisingly little constitutional history written along the lines that I am suggesting. In a recent article I sought to identify the deep background forces that rendered possible a transformation in the Supreme Court's jurisprudence of race relations. [FN137] After briefly summarizing that account, I shall attempt in the remaining Sections of this Part to sketch analogous accounts for the transformation in the constitutional jurisprudence of free speech, the Establishment Clause, and criminal procedure. I emphasize that these are only sketches; they are preliminary and highly tentative. This is necessarily so, for the great bulk of the historical work remains to be accomplished. Because of our tendency to think about judicial review ahistorically, and as a consequence to embrace the myth of the Court's countermajoritarian heroics, little effort has been devoted to identifying and elaborating the background historical forces that rendered possible the postwar revolution in civil rights and civil liberties jurisprudence.

A. Race

I have endeavored elsewhere, at considerable length, to describe the background forces that rendered possible the mid-twentieth-century transformation in the Supreme Court's constitutional jurisprudence of race. It should suffice here to provide only a brief summary of that account. [FN138] Beginningaround World War I, the Great Migration converted an American black population that had been ninety percent Southern as late as 1910 into one that was evenly divided between North and South in 1960, as roughly five million blacks fled the South in search of greater economic opportunity and (relative) racial toleration. Almost as a side effect, this mass migration ultimately produced a potent Northern black political presence, as African- Americans relocated from a region where they had been almost universally disfranchised to one where they not only voted without racial restriction, but frequently represented the margin of difference between the two major political parties. During the interwar period, burgeoning Northern black political power was manifested in a variety of ways: the election in 1928 of the first black congressman in the twentieth century (from Chicago), the Senate defeat in 1930 of the nomination of Judge John Parker to the United States Supreme Court partly on the ground of his alleged racism, the failure in 1944 of the Democratic vice-presidential nomination campaign of South Carolinian James Byrnes partly due to his unacceptability to Northern blacks (and labor unions), and President Truman's decision after the disastrous 1946 off-year elections to bid for black votes with a strong civil rights platform, ultimately leading to his famous executive orders in 1948 that desegregated the military and the federal civil service.

The Great Migration, World War II, and the continuing phenomena of urbanization and industrialization also had a transformative impact on the economic situation of both Northern and Southern blacks. By the end of World War II there existed a substantial urban black middle class, which possessed the education, disposable income, and leisure time necessary for involvement in social protest activity. Economic advances better enabled blacks to challenge the racial status quo by freeing them from white control over their livelihoods, and by creating a powerful weapon in the economic boycott, which could be used to extract concessions on civil rights issues. Greater prosperity rendered blacks not only better able, but also more inclined, to challenge the status quo, by dramatizing the disparity between their economic and social status. Southern urbanization, in addition to bettering blacks' economic situation,increased their political power, as suffrage restrictions had never been as stringent in large Southern cities as in rural counties. Urbanization also loosened the restraints on social protest activity, since urban racial norms tended to be somewhat less oppressive, as evidenced by the fact that lynchings historically had been largely a rural phenomenon. Finally, urbanization reduced some of the collective action barriers to a social movement by placing participants in greater physical proximity and by improving their communication and transportation facilities.

Ideological forces also contributed significantly to changing racial norms. The war against Nazi fascism had impelled many Americans to reevaluate their racial preconceptions in an effort to clarify, as Justice Black stated the point at conference, how and why "Hitler's creed" was any different from "what the South believed." [FN139] Furthermore, the ensuing Cold War required America to demonstrate to (mostly non-Caucasian) Third World nations that democratic capitalism was a superior system to communism, notwithstanding America's long history of racial oppression. This so-called "Cold War imperative" for racial change played an enormous role in the civil rights calculations of the Truman, Eisenhower, and Kennedy administrations. Finally, while material and ideological forces were propelling the United States toward more egalitarian racial norms, developments in transportation and communication--such as television, an interstate highway network, and air transit--were binding the nation into a tighter unit. It thus became increasingly difficult for one region (the South) to maintain social practices or traditions (de jure forms of Jim Crow) that deviated significantly from those of the nation as a whole.

B. Freedom of Speech

One explanation for the growth in modern commitment to free speech principles reflects John Frank's observation that "courts love liberty most when it is under pressure least." [FN140] Support for free expression has correlated through the twentiethcentury with the perceived severity of the threat that radical dissenters posed to the economic and political status quo. During the first two decades of the century, the cause of free speech was more or less synonymous with that of political radicalism; in the wake of the McKinley assassination in 1901, there was little popular support for the expression rights of anarchists, communists, or IWW Wobblies. [FN141] During the First World War, there was an overwhelming popular consensus that radical political speech, which was obstructive of the Wilson administration's war efforts, should be suppressed. Public intolerance of political radicalism escalated during the Red Scare of 1919-20, as evidenced by the enactment in some thirty- five states of legislation criminalizing speech with a tendency to produce unlawful actions aimed at promoting radical economic or political change. [FN142] Against the backdrop of near public hysteria induced by a wave of anarchist bombings and violent labor unrest, the Supreme Court refused to extend First Amendment protection to radical speech. [FN143]

But the perceived threat posed by radical groups, so potent in 1919- 20, had largely dissipated within a few years. By the early 1920s, political prisoners convicted during the war and the ensuing Red Scare were generally receiving executive pardons, while criminal syndicalism statutes had fallen into relative disuse by 1924. Fear of politically radical aliens declined after passage of the restrictive immigration legislation of 1921 and 1924, and concern about radical labor organizers dissipated with the demise of the IWW through the 1920s. The diminution in public concern regarding political radicalism is evidenced by the massive condemnation of the Fish Committee report of 1931, which blamed communists for the Great Depression and called for suppression of communist propaganda. [FN144] That same year theSupreme Court for the first time invalidated state legislation on free speech grounds. [FN145] By the late 1930s, as fears of communism further declined during the era of the "Popular Front," the Court was reversing on First Amendment grounds the criminal syndicalist convictions of radical agitators. [FN146]

During the second Red Scare, in the early 1950s, the First Amendment once again went into hibernation. With the Cold War at its height and fears of domestic subversion rampant, communists were perceived to be simply too dangerous to warrant First Amendment protection. While the demise of Senator McCarthy and the decimation of the American Communist Party during the mid- 1950s opened a window of opportunity for Court intervention--producing the much vaunted "Red Monday" decisions of 1957 [FN147]--it was not until the complete collapse of the internal subversion threat in the 1960s that the Court supplied its most robust interpretations of the First Amendment. [FN148] The point just made about radical speech on the political left is equally true of such speech on the right: the Court protected the free expression rights of the Ku Klux Klan after the defeat of massive resistance to Brown, not before, and certainly not during the Klan's heyday in the 1920s when the organization's membership peaked at over four million. [FN149]

Constitutional historian Paul Murphy has posited a second explanation for the dramatic expansion in social support for free speech ideals during the interwar period. [FN150] According to Murphy, the perceived excesses of the Wilson administration's internal security apparatus during the First World War and itsimmediate aftermath created a backlash in support of freedom of expression. Prosecutions under the Espionage and Sedition Acts were not limited to members of "dangerous" fringe groups such as anarchists, communists, and IWW Wobblies. Rather, the government's suppression machinery also captured socialists, pacifists, and occasionally Progressive critics of the Wilson administration's conduct of the war. Mainstream opinion was not terribly concerned by the suppression or deportation of anarchists and communists, who were generally deemed to be alien elements, resistant to Americanization and thus scarcely entitled to constitutional protection. But the enthusiastic suppression conducted by Postmaster General Burleson was an entirely different matter. Burleson openly announced his intention to ban from the mails any literature even vaguely critical of administration war policy--which, to his mind, included statements suggesting that the nation had gone to war at the behest of Wall Street or the munitions makers. He proceeded to suppress an issue of the mainstream Progressive magazine, The Nation, for publishing an article critical of the government's civil liberties policies (a decision that the President felt compelled to reverse). [FN151] Pacifist opponents of the war, who often found themselves lumped together with radical anarchists and communists by the administration's suppression machinery, included reputable supporters of Wilson's domestic policies, such as Jane Addams and Crystal Eastman. Even the suppression of socialists, who during the war saw virtually all of their publications banned from the mails, was bound to produce some sort of civil liberties backlash at a time when twenty to thirty percent of the voters in large industrial cities such as New York, Chicago, and Cleveland regularly supported socialist candidates in local elections. In some places government suppression during the war simply ran amok. The city of Pittsburgh banned Beethoven music; the Los Angeles Board of Education forbade discussion of peace in the schools; and many states prohibited German language instruction. It was in response to these sorts of government excesses that the first general civil liberties organization in the nation's history was established--the National CivilLiberties Bureau, which soon became the American Civil Liberties Union. [FN152]

The repressionist mentality peaked in the war's immediate aftermath. States enacted a wave of criminal syndicalism and red flag laws, while Congress seriously debated reenacting its wartime sedition statute. Paul Murphy calls this flurry of repressive legislation "the first open and overt legal peacetime departure from the principle of freedom of speech by the states," and he concludes that it "distressed some Americans enough to call attention to the free-speech implications involved." [FN153] The Palmer raids of 1919-20, directed against suspected alien radicals, repulsed many in the political mainstream. And the New York state legislature's refusal in 1920 to seat five duly elected socialists was strongly condemned as an assault on representative government by no less of an establishment figure than former governor and Supreme Court Justice Charles Evans Hughes, who quickly mobilized the conservative New York City and state bar associations to oppose the legislature's action. [FN154] In 1922, Kansas newspaper editor William Allen White was jailed for putting up posters supportive of striking unionists in violation of a ban on picketing; White subsequently received a Pulitzer Prize for his eloquent statement defending free speech principles. In 1923 the Los Angeles police arrested Upton Sinclair and others for publicly reading passages from the American Constitution during an IWW strike--an episode which "raised the hackles of many decent citizens" [FN155] and ultimately led to the dismissal of the local police chief and a boost to ACLU membership in southern California. As Murphy puts the point, "repressionist muscle and eventual overkill alarmed even conservatives," [FN156] leading to burgeoning support for the concept of free expression.

A third explanation for the flowering of free speech jurisprudence in the middle third of the twentieth century focuses on the substantive causes with which free expression became associated in the popular consciousness at particular points in time. Unsurprisingly, as those substantive causes prospered politically and socially, so did the concept of free speech. [FN157] During the interwar period, free speech was understood to be predominantly a labor union issue, involving protection for the rights to organize, picket, and boycott. To modern eyes the extent of the identification of free speech with the agenda of organized labor during these years is quite extraordinary. In the 1920s the American Civil Liberties Union concentrated its attention almost entirely on the rights of organized labor. [FN158] The syndicalism laws passed in the wake of World War I were directed not only at abstract proponents of political radicalism, but also at leftwing labor agitators such as the IWW. In 1919 the battle over California's criminal syndicalism law was fought largely between union and anti-union forces; the sponsors of Michigan's red flag and criminal syndicalism legislation were employers. [FN159] The typical free speech battle of the 1920s involved steelworkers, miners, or textile employees seeking to unionize a fiercely resistant employer in a company town where free expression was curtailed through mechanisms such as permit requirements for the use of meeting halls and bans on workers inviting union organizers into their (company-owned) homes. Roger Baldwin,head of the ACLU, summarized the organization's first decade in 1929: "'Of the infringements of civil liberties against which organizations in this field protest, nine out of ten involve rights which labor asserts in its contest with employers or with civil authorities."' [FN160]

Organized labor began to prosper politically and economically in the 1930s. At the start of the decade, the American Federation of Labor played a crucial role in the Senate defeat of Judge John Parker's nomination to the Supreme Court; Parker was thought by organized labor to be overly sympathetic to the concept of the labor injunction. [FN161] Labor's first big national legislative victory came in the form of the Norris-LaGuardia Act of 1932, which prohibited courts from issuing injunctions to prohibit peaceful picketing and assembly of workers during a labor dispute. The National Industrial Recovery Act of 1933 and the National Labor Relations Act of 1935 protected the organizational and collective bargaining rights of labor unions. All three statutes evinced an emerging national consensus in support of a strong labor movement. [FN162] During the 1936 presidential election, organized labor for the first time became an important financial contributor to the Democratic Party and a core constituency of the successful New Deal coalition. [FN163] In 1937, following the controversial sitdown strikes in Michigan auto plants, unions for the first time successfully organized the giant automobile and steel industries and saw their national memberships balloon. [FN164] That same year, the Supreme Court issued two landmark decisions extending First Amendment protection to radical speech that almost certainly would have been found suppressible in the 1920s; the defendants in both cases were seeking to mobilize workers politically. [FN165] Moreover,when the Court that same year sustained the Wagner Act against what were primarily Commerce Clause and substantive due process challenges, the ACLU deemed the decision "the most important single step toward the attainment of meaningful freedom of speech in modern times." [FN166] Simultaneously, Senator LaFollette's Committee on Civil Liberties was pursuing an agenda almost entirely devoted to support of free speech and assembly rights for organized labor. The leading student of that committee's work concludes that its "characterization as a 'Civil Liberties' committee and its exclusive focus on interference with labor's rights indicate the conjunction of labor's liberty and civil liberty during the New Deal." [FN167]

The linkage between the rising tides of organized labor and free speech appears quite concrete in Hague v. CIO, [FN168] one of the landmark free speech decisions of the modern era. At issue in Hague was the constitutionality of a Jersey City ordinance prohibiting street meetings without a permit, which had been applied to prevent distribution of CIO flyers advocating unionization. The case neatly paralleled the paradigmatic free speech contests of the 1920s, and Paul Murphy calls it "the last major direct action challenge to local restrictions on First Amendment freedoms." [FN169] Labor's burgeoning political power was evidenced by the Roosevelt Justice Department's decision to prosecute antilabor Mayor Hague for suppressing union activity in his city. [FN170] The rising social status of organized labor was evidenced by the willingness of the American Bar Association's newly- created Bill of Rights Committee to publicly side in Hague with the ACLU, the CIO, and the communists. [FN171] The Supreme Court, in turn, provided a ringing endorsement of free speech principles in the context of labor union communicative activity.The following year the Court held for the first time that peaceful labor picketing was entitled to First Amendment protection. [FN172]

During the 1950s and 1960s, free speech became intertwined in popular and legal consciousness with another substantive cause that was beginning to prosper--that of the civil rights movement. Harry Kalven and others have noted the substantial number of free speech decisions from the Warren era that grew out of the civil rights movement. [FN173] NAACP v. Alabama, [FN174] declaring a new First Amendment right of association, derived from Alabama's efforts to suppress the litigation arm of the civil rights movement in retaliation for its pursuit of racial desegregation. New York Times v. Sullivan, [FN175] a landmark First Amendment decision establishing constitutional protection against defamation lawsuits by public officials, likewise arose from Alabama's effort to harass individual civil rights leaders. Similarly, NAACP v. Button, [FN176] extending First Amendment protection to litigation as an expressive activity, derived from Virginia's attempt to suppress the NAACP owing to its school desegregation efforts. Many other free speech cases also emanated from the civil rights movement, [FN177] but the point should already be clear: The fate of freedom of speech may be partially dependent upon the success of the substantive causes with which it becomes intertwined. Indeed, by 1960 more conservative justices such as Frankfurter and Harlan were warning their brethren against distorting established law, including the First Amendment, in their eagerness to promote the cause of civil rights. [FN178]

This point about the interrelated fate of free speech and the substantive causes with which it becomes affiliated can be broadened into an argument that free expression prospers during periods when challenges to the status quo are perceived as most legitimate. Thus during the first Red Scare and the ensuing return to "normalcy" in the 1920s, free speech principles, generally embraced by political radicals and labor organizers, enjoyed little support. After the Great Depression legitimized criticism of the status quo, free speech thrived, as did organized labor, the group most commonly associated with freedom of expression during this period. As Paul Murphy puts the point, "[w]ith the world of normalcy in a shambles, former liberal critics ceased to seem irresponsible disruptionists." [FN179] During the 1950s, McCarthyism had an inhibitory effect on all forms of challenge to the status quo-- communism, atheism, the civil rights movement, and even abstract expressionist art. [FN180] But the status quo came unhinged in the 1960s, and protest movements acquired substantial legitimacy and even occasionally entered the mainstream--for example, the civil rights movement, the antiwar movement, and the women's movement. Predictably, free speech principles, invoked by those seen to be legitimately protesting the status quo, enjoyed a boom period. [FN181]

I should briefly note two final explanations for the flowering of free speech ideals, and civil liberties more generally, during the interwar period. One has to do with the ideological revulsion against fascism. I shall address that factor in some detail in the following Section on the transformation of Establishment Clause thought. It should be sufficient here simply to note that Americans sought to distinguish themselves from the Nazis in all ways possible, including respect for freedom of speech. Just as revulsion against Nazi practices influenced American attitudestoward racial and religious minorities, treatment of criminal defendants, and eugenic sterilization, so did it affect the national commitment to freedom of speech. [FN182]

Finally, the composition of the New Deal political coalition sheds light on the growing support for free speech, and civil liberties more generally, during the interwar period. A civil liberties agenda, all things being equal, will prove more attractive to outsider groups disadvantaged by the status quo than to the establishment. FDR's New Deal coalition was an extraordinary assemblage of such traditional outgroups--organized labor, Catholics, Jews, blacks, German-American Progressives, and others. Most of these groups supported Roosevelt and the Democratic Party for economic reasons. Jews and LaFollette (often German-American) Progressives, for example, had renounced their traditional Republican affiliation when that party largely abandoned its Progressive wing in the 1920s. [FN183] In 1936 the majority of black voters supported the Democratic Party candidate in a presidential election for the first time in American history; their primary motivation was economic. [FN184] Catholics, on the other hand, had traditionally voted Democratic for ethnocultural, rather than economic, reasons (though the economic philosophy of the Catholic Church in the 1930s was very receptive to a New Deal agenda). [FN185]

These traditional outsider groups, which found themselves standing under the New Deal umbrella in the 1930s for a varietyof reasons, shared a common interest in the cause of civil liberties. Jews not only faced widespread discrimination in housing, employment and public accommodations, but also were ever wary of the possibility that Eastern European-style pogroms would follow them to America. [FN186] German-Americans had suffered widespread victimization during World War I; their language had been suppressed and their culture assaulted. [FN187] American Catholics likewise had been subjected to periodic displays of virulent Protestant hostility--the Know-Nothings of the 1850s, the American Protective Association of the 1890s, and the Ku Klux Klan of the 1920s--which frequently took the form of legal assaults upon Catholic parochial schools. [FN188] African-Americans, of course, had been subjected to the most intense and pervasive discrimination of all--slavery, lynching, disfranchisement, and segregation and discrimination in a multiplicity of forms.

In the mid-1930s the Democratic Party assembled a political coalition that was heavily dependent for its success upon the support of these outsider groups. While these constituencies had come to support FDR and his party primarily for economic reasons that had nothing to do with civil liberties, they nonetheless shared common ground in their support for legal checks on majoritarian oppression. Thus one might plausibly regard (Catholic) Attorney General Frank Murphy's decision to create a civil liberties unit within the Justice Department in 1939 as, in part, a political payback to these vital political constituencies. [FN189]Similarly, the ignominious defeat of FDR's Court-packing plan in 1937 revealed how important civil liberties issues were for groups that had entered the New Deal coalition primarily for economic reasons. Many Catholic and Jewish organizations opposed FDR's scheme to "reform the federal judiciary," notwithstanding the anger and frustration they felt toward the "Nine Old Men" for their assault upon New Deal legislation. [FN190] These constituencies opposed Court-packing because they feared that it would deprive the Supreme Court of the political independence necessary to guarantee the civil liberties of minority groups. In sum, the political empowerment of ethnic, racial, and religious minorities in the 1930s augured well for the cause of civil liberties and free speech.

C. The Establishment Clause

One area of modern constitutional jurisprudence that seems especially fertile ground for the sort of political and social history I am prescribing is the Establishment Clause. It is difficult to imagine the Supreme Court prior to World War II striking down "voluntary" nondenominational prayer and Bible reading in the public schools or time-release programs which facilitate religious instruction for public school students. [FN191]Neither doctrinal logic nor changes in Court composition can explain the dramatic departure effectuated by the Court in its post-1945 Establishment Clause decisions. Only an external account, focusing on deep political, social, and ideological forces, can plausibly explain this seachange in constitutional doctrine. A variety of forces contributed to this transformation: the increase in sheer numbers of religious minorities (especially Catholics and Jews) resulting from the massive immigration of the late nineteenth and early twentieth centuries; the political, social, and economic integration of these religious minorities into the national mainstream over the course of succeeding generations; and a fundamental ideological reevaluation of the place of minority religions in American life that resulted from public revelations of Nazi atrocities culminating in the Holocaust.

Inexplicably, this sort of social and political history of the transformation of Establishment Clause doctrine remains largely unwritten. [FN192] To be complete, such an account would have to explain how separation of church and state, which in the mid-nineteenth century had generally connoted a combination of opposition toward state support for parochial schools and toleration of public school displays of Christianity (read Protestantism), had by the mid- twentieth century come to mean opposition toward public school displays of Christianity and somewhat greater toleration for state support of parochial schools. Under the "Protestant consensus" that was dominant until at least the late nineteenth century--in many places much longer--public school displays of (Protestant) religiosity, such as prayer, Bible reading (from the King James, not the Douay, Bible), and religious hymn singing were unobjectionable on the ground that the United States was a "Christian nation." Separation ofchurch and state did not, in the eyes of most Protestants, require the state merely to tolerate, as opposed to supporting and preferring, Christianity (read Protestantism). [FN193] Thus nineteenth-century Catholic legal challenges to prayer and Bible reading in the public schools were almost universally rejected on the ground that the King James Bible was nonsectarian, or that religious minorities would have to make sacrifices in the name of majority rule. [FN194] As late as the turn of the century, Lord Bryce, the noted English observer, could still remark that "'Christianity is in fact understood to be, though not the legally established religion, yet the national religion."' [FN195] Just a few years earlier, Justice Brewer had observed for the Supreme Court that the United States was a "Christian nation." [FN196]

At the same time, though, public financial assistance to parochial (overwhelmingly Catholic) schools was deemed to be a plain violation of the principle of separation of church and state. [FN197] Thus the famous Blaine amendment, which narrowly failed to secure the two-thirds vote necessary to pass the Senate in 1876, would have forbidden any state from devoting public funds to private religious schools while simultaneously reaffirming the constitutionality of Bible reading in the public schools. [FN198] Similarly, the Illinois convention that in 1870 amended the state constitution to forbid appropriation of public money in support of sectarian (read Catholic) schools only narrowly failed to pass a provision declaring that the Bible should never be excluded from the state's public schools. [FN199]

Only the dramatic increase in the religious pluralism of the American population, resulting from the mass Catholic and Jewish immigration of the period 1880-1915, could shake the foundations of this "Protestant consensus." [FN200] Between 1850 and 1900, the Catholic population of the United States increased from 1.7 million to 12 million; between 1900 and 1930 that number doubled. [FN201] Meanwhile, the American Jewish population increased from 229,000 in 1887 to over 4,228,000 in 1927 (or from roughly 0.5% of the nation's population to about 3%). [FN202] One immediate consequence of this mass immigration of non-Protestant Europeans was a resurgence in nativist sentiment. The Ku Klux Klan, resurrected in 1915, achieved an estimated membership of over four million during the 1920s; ethnically and religiously discriminatory immigration restrictions were imposed in 1921 and 1924; and many states debated (and Oregon passed) legislation hostile toward Catholic schools. [FN203] Another consequence of growing religious pluralism, however, which manifested itself only with the passage of time, was the gradual undermining of the nation's unofficial Protestant establishment and a concomitant transformation in thought about church-state separation.

The transforming impact of religious pluralism on attitudes toward church- state separation could be glimpsed as early as 1869 in Cincinnati. There the presence on the school board of protesting Jewish and Catholic members led to a ban on Bible reading and religious hymn singing in public schools--a decision that a local trial court ruled in violation of the state constitution (which declared religion "essential to good government" [FN204]) but that the Ohio Supreme Court reinstated in a landmark opinion. [FN205] Nor can it be fortuitous that of the three state courtsthat had prohibited Bible reading and school prayer on state Establishment Clause grounds by 1910, two were located in the heavily Catholic states of Illinois and Wisconsin (the third was Nebraska). [FN206] Increasing judicial receptivity to Catholic challenges to public school displays of Protestantism was, unsurprisingly, contemporaneous with dramatic increases in Catholic numbers and political power. Thus, for example, it seems unlikely that the Wisconsin Supreme Court's 1890 decision prohibiting Bible reading and religious devotionals in public schools was entirely unrelated to the simultaneously successful political campaign by the state's German Catholics (and Lutherans) to repeal the anti- German Bennett law, which required that private as well as public school instruction be in English. [FN207] By 1920, five state courts had prohibited Bible reading in public school on state constitutional grounds. [FN208] Thus one scholar has concluded that many state courts by the end of World War I were moving "away from a perception of America as a Christian nation," [FN209] though perhaps it is only historical hindsight that enables us to identify the incipient crumbling of America's unofficial Protestant establishment at this early date. [FN210]

The interwar period witnessed the rapid integration of the new immigrants and their children into the mainstream of American society, a phenomenon that was probably facilitated by the discriminatory immigration restrictions of the early 1920s, which drastically reduced the flow of unassimilated newcomers. World War I played the usual integrating role that large-scale militaryconflict does, especially as Catholics participated in disproportionate numbers in the armed forces. [FN211] One historian notes that American Catholicism, having proved its patriotism during the war, "had come to a maturity of growing confidence in a nation in which it had often been viewed as an outsider." [FN212] Economic and social advances continued through the 1920s and 1930s. Catholics who in the 1910s had been only 70% as likely as white Protestants to attend college and only 65% as likely to become professionals, by the 1930s were 90% as likely to attend college and to become professionals. [FN213] One scholar concludes that by the mid-1930s "American Catholics had reached a position of respect and integration in public life in the United States." [FN214]

American Jews made similarly impressive strides toward social and economic integration in the 1920s and 1930s. By the 1920s Hollywood movies were rejecting the traditional Jewish stereotypes in favor of the twin themes of success and assimilation. [FN215] By 1930 a majority of the Jewish workforce held white collar occupations; a 1935 study revealed that just 2.6% of New York City Jews were unskilled workers, while 31.8% were proprietors, managers, and officials. [FN216] New York City Jews, who had constituted just 22% of the incoming public school teachers in 1914, accounted for 56% in 1940. [FN217] Jewish lawyers, many of whom were educated at prestigious Ivy League universities, were disproportionately represented in the New Deal's alphabet agencies. [FN218]

Expanding Catholic and Jewish populations and their rapid assimilation into society quickly translated into growing political power. Catholic numbers were sufficient at the local level to elect Catholic mayors in New York, Boston, and other Northeastern cities as early as the 1880s. [FN219] Political power at the state and national level came later. A Catholic, Edward White, was appointed Chief Justice of the Supreme Court in 1910. [FN220] Al Smith became governor of the nation's largest state, New York, during World War I, and then became the nation's first Catholic presidential candidate in 1928. [FN221] Franklin Roosevelt brought more Catholics into his Cabinet than any of his predecessors; this included a Catholic Attorney General, an appointment that his predecessor had tried but failed to accomplish. [FN222]

The Jewish political experience was similar. Rapid increases in the American Jewish population around the turn of the century induced Theodore Roosevelt to name the nation's first Jewish Cabinet officer in 1906--Secretary of Commerce and Labor Oscar Strauss. [FN223] The Jewish population of New York City was sufficient to ensure that, beginning in 1909, the borough president of Manhattan was usually a Jew. [FN224] During the 1930s, Jews held the balance of power in New York City mayoral races--a fact not unconnected to Mayor LaGuardia's support for the anti-Nazi Jewish boycott in 1933 and his vigorous condemnation of Adolph Hitler throughout the 1930s. [FN225] At the state level, the New York Republican Party first nominated a Jew for governor in 1928 (Albert Ottinger), and the Democratic Party nominated the first successful Jewish gubernatorial candidate in 1932--three-term governor Herbert Lehman. [FN226] In 1916 Woodrow Wilson appointed the first Jewish Supreme Court justice,Louis Brandeis, and during most of the 1930s there were two Jews on the Court (first Brandeis and Cardozo, and then, briefly, Brandeis and Frankfurter).

Jewish and Catholic integration and empowerment had two consequences for Establishment Clause thought. On the one hand, "increasing religious pluralism" helped to undermine "[t]he almost organic sense of community assumed by the early Christian nation theme," [FN227] and thus called into question the constitutionality of public school displays of (Protestant) Christianity. On the other hand, burgeoning Catholic political power rendered possible for the first time significant public financial assistance to Catholic parochial schools. Catholics had been seeking such aid since shortly after public education first proliferated in the Northern states during the 1830s. [FN228] The diminution in nativist sentiment wrought by the integrating experience of the Civil War emboldened Catholics again to demand access to public funds for their parochial schools; the result was another Protestant backlash, which culminated in the barely unsuccessful attempt to amend the federal constitution in 1876 to forbid state financial assistance to religious (read Catholic) schools. [FN229] While the Blaine amendment failed to pass at the federal level, it carried the day in the states. By 1915 more than 30 states had adopted "Baby Blaine" amendments. [FN230] Under these state constitutional provisions, state courts in the pre-World War I period generally, though not universally, struck down the practice of school boards in communities with large Catholic populations offering financial assistance to the parochial schools. [FN231] Only in the 1920s and 1930s did Catholics acquire the political power at the state level necessary to secure enactment of laws subsidizing parochial schools with publicly-funded textbooks and bus transportation. Unsurprisingly, such laws tended to appear in states with the largest Catholic populations--that is, primarily in the Northeast, upper Midwest, andLouisiana. [FN232] By the time the Supreme Court decided its first Establishment Clause challenge in 1947, twenty-two states had authorized public funding of bus transportation for parochial schools. [FN233]

A final element in the transformation of Establishment Clause thought was the widespread revulsion felt in the United States toward Nazi persecution of minority religious groups, particularly Jews. The consequence of this ideological readjustment was greater American acceptance of religious pluralism, a rapid decline in virulent anti-Semitism, and the gradual emergence of the notion that America possessed three great, and equally legitimate, religious traditions--Protestantism, Catholicism, and Judaism. Anti-Semitism had been rife in the United States during the 1920s and 1930s. It was manifested in a multiplicity of forms: the virulent anti-Semitic propaganda of Henry Ford's Dearborn Independent and the Ivy League universities' Jewish quotas of the 1920s; the unrestrained Jew-baiting of Father Charles Coughlin (the "Radio Priest") and the formation of the German-American Bund and the Christian Front in the 1930s. [FN234] Anti-Semitism was not simply tolerated during the interwar period; it actually was rather fashionable in certain elite circles. British ladies wore bracelets with Nazi swastikas at London West End parties well into the 1930s. [FN235] Even Eleanor Roosevelt at this time frequently indulged in the "casual" anti-Semitism of her class and culture when referring in private correspondence and conversation to Jewish political operatives Belle Moscovitz and Robert Moses or to Jewish financier Bernard Baruch. [FN236]

Only after the widespread public dissemination of information regarding Nazi persecution of Jews and later of the Holocaust did such casual and pervasive anti-Semitism become unacceptable. As one contemporary observer put the point in 1937, "it is surely one of the most curious paradoxes of history thatNazi Germany ... is, in spite of itself, bringing nearer the time when anti-Semitism will have passed into history." [FN237] In early 1937 the Christian Century wrote that "anti-Semitism has been checked by the general horror of the form that it has taken in Germany." [FN238] Kristallnacht in November 1938 dramatically heightened American sympathy for the plight of German Jews, especially coming as it did after the Third Reich's annexation of Austria and the cession of the Czech Sudetenland at Munich earlier in 1938 had rallied anti-Nazi sentiment in America. [FN239] Now, German-American organizations, which previously had refrained from public criticism of German Nazis, openly condemned them, expressing "horror" and "bewilderment" at developments in Germany. [FN240] High officials of the Catholic church began publicly repudiating Father Coughlin after his November 1938 speech justifying Kristallnacht as a defensive response to communism. [FN241] The German ambassador to the United States reported to his government after Kristallnacht that "even the most bitter anti-Semites are anxious to disassociate themselves from methods of this kind." [FN242] A Gallup poll taken the following month showed that ninety-four percent of Americans disapproved of Germany's anti-Jewish actions. [FN243] As one commentator has observed, "[a] horde of prominent Americans eagerly register [ed] their disapproval of Nazi barbarism." [FN244] In the 1940 presidential election, the Democratic Party platform included a plank on religious tolerance, and the Republican Party nominee, Wendell Willkie, repudiated the Nazi-funded organizations that had endorsed his candidacy and urged the criminalization of anti-Semitic speech. [FN245] One of the four freedoms embodied in the Atlantic Charter, which declared Allied war aims, was freedom of religion. One of the mostfamiliar images of the war, later reproduced on a postage stamp, was of four military chaplains, one a Jew, holding hands on the flooded deck of a ship about to sink after being torpedoed by a Nazi submarine. [FN246]

Later, the first gruesome photographs from the Nazi death camps arrived, revealing the consequences of extreme anti-Semitism. The Holocaust demonstrated, in the words of one historian of modern Judaism, that "anti- Semitism meant not merely the exclusion of Jews from clubs, exclusive neighborhoods, and elite colleges. It also involved mass murder." [FN247] Millions of Americans now reconsidered their traditional religious prejudices. Soon after the war, the first and only Jewish Miss America, Bess Myerson, was anointed. [FN248] In postwar movies, Hollywood condemned anti-Semitism as un-American in light of Jewish contributions to the war effort. Under pressure from state and local governments, universities repealed their quotas on Jewish students, corporations increased their hiring of Jews, and previously restricted neighborhoods opened themselves to Jews. Opinion polls showed dramatic drops in anti-Semitism; the percentage of Americans who said they did not want Jews as neighbors decreased from over twenty percent in 1948 to just two percent in 1959. The upshot of these developments was that Jews, in the words of one historian, were "no longer an exotic ethnic and religious minority but an integral part of American culture." [FN249] Jews were now seen to be "one of the country's three major religions," [FN250] each of which was thought to represent an equally valid expression of the American way of life. Increasingly the country's spiritual and moral values were described not as "Christian," but as "Judeo-Christian." [FN251]

In the midst of this transformed religious context, the Supreme Court entered the Establishment Clause debate in the postwar period. The unofficial Protestant establishment had crumbled. Jews and Catholics were now part of the social and politicalmainstream. Anti-Semitism had dramatically diminished. Catholics had acquired the political power to secure indirect state financial assistance for their parochial schools. The religious matrix for ensuing Establishment Clause disputes was as follows: Jews strongly opposed both state financial support for parochial schools and public school displays of religiosity, regardless of whether or not they were nondenominational. [FN252] Catholics continued to voice their traditional support for public aid to parochial schools; however, perhaps partly as a result of their increasingly secure position in American society, Catholics generally had converted from opposition to support of public school displays of religiosity. [FN253] Protestants generally opposed state financial support of parochial schools and were divided in their position on public school prayer and Bible reading. [FN254]

While nobody would posit coherence as a description of the Supreme Court's postwar Establishment Clause jurisprudence, it is nonetheless possible to identify two trends that reflect the underlying currents described in this Section. First, the Court has been far more hostile to public school displays of religiosity than would have been conceivable before the demise of the unofficial Protestant establishment. Second, the Court, while somewhat conflicted, [FN255] has been more tolerant of public support for Catholic parochial schools than most state courts had been before the integration of Catholics into the national mainstream. [FN256] I shall consider these two points in turn.

The elevation of Jews and Catholics to equal partnership status in the American religious triumvirate necessarily entailed the demise of the unofficial Protestant establishment. It is not surprising that one consequence of this development was that Protestant-tinged displays of religiosity in the public schools came to appear increasingly objectionable. What is perhaps more surprising is that the Court became so stringently separationist as to reject any preference for (nondenominational) religion over nonreligion in its public school cases. The logic of Catholic and Jewish integration required equal respect for their religious practices, but did not necessarily entail rejection of anypublic displays of religiosity. Yet Illinois ex rel. McCollum v. Board of Education [FN257] rejected a time-release program that permitted each religious group to accommodate its own members, and Engel v. Vitale [FN258] invalidated a nondenominational school prayer. These decisions, it seems to me, were not logically compelled by the disestablishment of unofficial Protestantism.

Perhaps the extent of the Court's separationism is best accounted for on the ground that one of the newly elevated partners in the religious triumvirate strongly opposed the challenged practices. As a small minority within an overwhelmingly Christian nation, Jews generally favored a policy of stringent separationism, rather than one of nondiscrimination against particular sects. [FN259] To most Jews, school prayer and Bible reading remained exclusionary practices. With the dramatic decline in virulent anti-Semitism in the postwar years, Jews became more willing to aggressively articulate their objections to such practices. [FN260] Their victories in the SupremeCourt in 1962- 63 can be seen as a symbolic recognition of their more complete acceptance into American society. [FN261]

Yet it bears emphasis that the underlying forces identified in this Section did not compel the Court to go as far as it did; indeed, if the polls noted in Part I are accurate, most Americans believe the Court went too far. As I stated in Part I, it is not my claim that judicial review lacks any countermajoritarian force. What I have tried to provide here is a preliminary account of the background forces that set the parameters within which the Court's Establishment Clause jurisprudence operated. This account explains, I think, how invalidation of school prayer and Bible reading had become a realistic option for the Court in the early 1960s. It does not explain why the justices chose to implement that option among the array of Establishment Clause interpretations available to them at the time.

The relationship between the social, political, and ideological forces described in this Section and the Court's posture toward public support for parochial schools is more complex. First, it is clear that without growing Catholic political power, such laws would not have been enacted, and thus no Establishment Clause conflict would have existed. [FN262] Second, it seems likely that as Catholics were integrated into the political and social mainstream their view that public support for Catholic schools represented state neutrality rather than subsidization of religion would gain adherents. [FN263] This supposition seems confirmed, for example, by significant postwar increases in popular support for state assistance to parochial schools in states like New York and Wisconsin. [FN264] If nothing else, growing Catholic political power translated into more Catholic judges--one out of every four ofFDR's federal judicial appointments was a Catholic, as compared with one out of every twenty-five for the Republican presidents of the 1920s. [FN265] And on the question of whether public assistance to parochial schools violated the Establishment Clause, by far the best predictor historically of a judge's position was his religion. [FN266] Third, and cutting in the opposite direction, Catholic integration into the nation's mainstream strengthened the concept of religious pluralism, which, to many minds, was inconsistent with public displays of religiosity. Thus, for example, the election of a Catholic president in 1960, which resoundingly confirmed the equal status of Catholics in American society, [FN267] simultaneously undermined the status of public school displays of religiosity, which (ironically) by the 1960s were supported most vigorously by American Catholics. It is no accident, I think, that President Kennedy was one of the relatively few public figures who refused to criticize the Supreme Court decisions in the school prayer and Bible reading cases. [FN268] After his famous defense of the "privacy" of his religious views in the 1960 presidential campaign,he had little choice in the matter. [FN269]

One final element is necessary to complete this sketch of a political and social history of the transformation of modern Establishment Clause thought. The Supreme Court in 1952 rejected a constitutional challenge to New York's time-release program, after invalidating a similar policy from Champaign, Illinois four years earlier. [FN270] The rhetoric of Justice Douglas'smajority opinion in Zorach was extremely accommodationist, observing, most famously, that "[w]e are a religious people whose institutions presuppose a Supreme Being." [FN271] What can explain the extraordinary shift between the accommodationist dicta and holding of Zorach v. Clauson and the extreme separationism of Engel and Schempp? Justice Douglas, indeed, went so far in the 1960s as to question the constitutionality of the national motto, "In God We Trust," and to become the only justice denying the constitutionality of tax exemptions for churches. [FN272] At least part of the explanation for this dramatic tilt toward separationism lies, I think, in the relative demise of domestic anti-communism during the interval between Zorach and Engel.

Historians often observe that the 1950s was a time of religious revival. Church membership was higher in that decade than in any other this century; Reverends Billy Graham and Norman Vincent Peale became national celebrities; President Eisenhower conducted prayer breakfasts and began his Cabinet meetings with prayers; Congress added a reference to "God" in the pledge of allegiance. [FN273] Historians have also noted that this religious revivalism "was bound up with the contemporary crusade against domestic and international communism." [FN274] The nation's enemy was "godless alien communism," and increased religiosity would strengthen "the moral fiber of American youth against the seductions of godless atheistic doctrines." [FN275] During these years, school prayer and Bible reading expanded into areas of the country where they had never been known before. The New York prayer that the Supreme Court eventually struck down in Engel had been recommended by the State Board of Regents in 1951 as part of the assault against atheism. [FN276] It is not surprisingthat justices who were unprepared to take on McCarthyism with regard to free speech issues also would be unenthusiastic about siding with the "atheistic communists" on Establishment Clause issues. [FN277] When the Court finally did strike down school prayer and Bible reading in 1962-63, after domestic anti-communism had become a largely spent force, Catholic Cardinals still attacked the decisions as conducive to communism. [FN278] One can easily imagine how much better such charges would have stuck at the peak of the McCarthyite frenzy in the early 1950s.

D. Criminal Procedure

The Warren Court produced a revolution in criminal procedure law. Scholarship seeking to provide a positive, as opposed to a normative, account of the dramatic doctrinal innovations of this period is virtually nonexistent. Such an account, it seems to me, would have to include at least three factors: race, poverty, and ideological revulsion against fascist methods of criminal law enforcement. Because the secondary materials in this field are so thin, my outline of a political and social history of the criminal procedure revolution is sketchier than the accounts provided in other Sections of this Part.

There is little doubt that the Supreme Court's first modern criminal procedure decisions were pervaded by concerns about race discrimination. As many scholars have noted, four of the Supreme Court's first major criminal procedure cases, dating from the 1920s and 1930s, involved Southern Jim Crow courts' dispensation of mob-dominated justice to black criminal defendants: Moore v. Dempsey, Powell v. Alabama, Norris v. Alabama, and Brown v. Mississippi. [FN279] Any court possessed of even a minimal commitment to fair procedure would have been aghast at the Southern states' treatment of black defendantscharged with serious crimes committed against whites--" the national scandal of racist Southern justice," as Robert Cover once put it. [FN280] While such egregious cases no longer dominated the Court's criminal procedure docket by the 1940s and 1950s, they still appeared with sufficient frequency to prevent the justices from thinking about criminal procedure issues in racially neutral terms. [FN281] Even by the 1960s, when many of the Court's principal criminal procedure cases seem facially unconnected with race, the statistical correlation between race and poverty, and between poverty and crime, ensured that for the justices of the Warren Court, criminal procedure questions were never entirely divorced from racial concerns. [FN282]

Relatedly, a complete understanding of the criminal procedure revolution of the 1960s requires attention to changing social attitudes toward poverty. Eminent commentators such as Francis Allen, Yale Kamisar, and Herbert Packer all contemporaneously noted the connection between poverty concerns and developments in criminal procedure. [FN283] That linkage is self-evident in cases such as Gideon v. Wainwright [FN284] and Douglas v. California, [FN285] where the Court interpreted the Constitution to require state provision of legal counsel toindigent criminal defendants at, respectively, trial and the first appeal. The connection between poverty and criminal procedure is less transparent but no less real in a case like Miranda v. Arizona, [FN286] where the Court arguably saw itself as evening the playing field between wealthy and poor criminal defendants possessed of differing background knowledge as to their constitutional entitlement to remain silent. [FN287]

Indeed, given the strong correlation between poverty and crime, it seems likely that the entire criminal procedure revolution was intertwined with changing popular attitudes toward poverty. Surely it is no accident that the Warren Court revolutionized the former at the same time that the Johnson administration declared war on the latter. Around 1940, when the Court unanimously rejected the notion that charging poor people to vote violated their equal protection rights, the justices were similarly unwilling to require the state to provide free counsel to indigent defendants in all noncapital cases. [FN288] By the mid-1960s, however, the justices were equally offended by the ideas that indigent noncapital defendants could be convicted without counsel and that poor people should have to pay a poll tax in order to vote. [FN289] It seems likely that the Great Depression, which led to the unpredictable and uncontrollable impoverishment of millions, inspired a significant shift in people's thinking about poverty. Many who previously had regarded indigency as primarily attributable to character flaws in the poor became more inclined to view it as the morally neutral product of uncontrollable external circumstances. Whatever the explanation, though, it is clear that popular attitudes toward the responsibility of the poor for their economic situation, and the responsibility of government to alleviate their plight, had shifted dramatically by the 1960s. With commentators generallyappreciating that "the problem of crime is to an important extent a problem of poverty," it is small wonder that criminal procedure law underwent a revolution as the nation declared "war on poverty." [FN290]

As with most civil liberties developments in mid-century America, ideological revulsion against Nazi practices apparently had some impact on criminal procedure norms as well. [FN291] David Bodenhamer writes that the rise of police states in Europe and Asia "intensified the Court's sense of responsibility for careful evaluation of the administration of justice." [FN292] Justice Black's celebrated opinion in Chambers v. Florida, [FN293] a coerced confession case from 1940, made thinly veiled references to Nazi and Stalinist police tactics. "Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment," Justice Black wrote, to attack "those who differed, who would not conform and who resisted tyranny." [FN294] Relatedly, though perhaps somewhat more speculatively, one might suggest that the relative demise of eugenic theories of criminality, as evidenced in cases such as Skinner v. Oklahoma, [FN295] another opinion making thinly veiled references to Nazi sterilization tactics, also would have transformed popular and judicial attitudes toward accused criminals. [FN296] Rather than criminality being viewed primarily as a product of genetic predisposition, the new social science paradigm postulated the importance ofenvironment and culture--influences largely beyond the power of the individual to control. Thus, criminality was gradually being transformed from a genetic predisposition to be extinguished or restrained into a behavioral condition to be treated and pitied. That attendant changes in criminal procedure doctrine would soon follow seems entirely predictable.

IV. CONCLUSION

I do not wish my proffered agenda for constitutional historians to be misunderstood. Much outstanding constitutional history has been written in the last generation from an "internal" perspective--what one might call the intellectual history of constitutional doctrine. [FN297] Moreover, some exemplary constitutional history of the nineteenth century adopts precisely the social, political, and economic approach that I advocate here. [FN298] Yet with very few exceptions, twentieth-century constitutional historians have eschewed this "external" perspective. [FN299] Legal historians of nonconstitutional subjects routinely adopt the external perspective, at least since J. Willard Hurst set the example almost a half century ago. [FN300] Yet twentieth-century constitutional history remains something of a "curious case"--7 "locked in the castle of conceptualism," as Lawrence Friedman put it a decade ago. [FN301]

I do not claim that the external perspective on constitutional history is the only one worth taking, but it surely is not the only one not worth taking. Twentieth-century constitutional history is out of balance. We have no decent positive account of the Warren Court's criminal procedure revolution. I have been unable to locate a single law review article that seeks to understand the postwar transformation of Establishment Clause doctrine in terms of the demise of the unofficial Protestant establishment. One searches the legal literature largely in vain for an account of Brown v. Board of Education that acknowledges the pre-1954 origins of this nation's racial transformation. It is my belief that the myth of the Court as countermajoritarian savior is largely responsible for this gap in the literature. It is time for constitutional historians to explode that myth, to identify and describe the parameters within which judicial review actually operates, and to create a richer and more credible account of the twentieth century's civil rights and civil liberties revolutions.

[FNa1]. Professor of Law and Class of 1966 Research Professor, University of Virginia. I am grateful to Michael Kent Curtis, Dave Douglas, Chris Eisgruber, John Hart Ely, Terry Fisher, Jack Goldsmith, John Jeffries, Laura Kalman, Daryl Levinson, Dick Merrill, Reuel Schiller, Mike Seidman, and Bill Stuntz for extensive comments on an earlier draft. I have also benefited from discussions on particular points with Lillian BeVier, John Harrison, Richard McAdams, Paul Mahoney, and Ted White. I owe special thanks to Chuck McCurdy, who provided not only useful discussion but also invaluable reading suggestions. Faculty workshop presentations at George Washington University National Law Center, Harvard Law School, and the University of Virginia School of Law's summer roundtable series provoked spirited discussions from which I profited immensely. This Article was originally conceived in response to an invitation to participate in a panel session commemorating the career of the distinguished constitutional historian Paul Murphy held at the 1994 annual meeting of the American Society for Legal History; I am grateful to Sandra VanBurkleo for extending that invitation, without which this paper would likely not have been written. Peter Dernbach, David Marcus, Viva Moffat, Ted Murphy, and Dilip Paliath provided first rate research assistance. I also wish to thank Sue Demasters, Evelyn Gray, Phyllis Ware, and (especially) Kathy Burton for their dictation transcription.

[FN1]. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).

[FN2]. Chambers v. Florida, 309 U.S. 227, 241 (1940).

[FN3]. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

[FN4]. 274 U.S. 357, 376 (1927) (Brandeis, J., concurring). For additional examples, see Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 606 (1940) (Stone, J., dissenting); Employment Div. v. Smith, 494 U.S. 872, 902-03 (1990) (O'Connor, J., concurring in judgment); United States v. Eichman, 496 U.S. 310, 318 (1990).

[FN5]. See, e.g., Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, Hearings Before the Senate Comm. on the Judiciary, 102d Cong., 1st Sess. 35 (1991) (statement of Sen. Edward Kennedy) (noting the Court's role as "guardian of the powerless in our society"); id. at 52 (statement of Sen. Patrick Leahy) (noting that it is courts, "and preeminently the Supreme Court, that must defend [individual] freedoms" and "run counter to shifting political winds").

[FN6]. 347 U.S. 483 (1954).

[FN7]. See, e.g., Walter Dellinger, A Southern White Recalls a Moral Revolution, Wash. Post, May 15, 1994, at C1, C4 ("The clarion call of the court's unanimous condemnation of racial segregation as incompatible with our deepest Constitutional principles was to play an indispensable role in the life of the South and the nation."); Bob Herbert, After Brown, What?, N.Y. Times, May 18, 1994, at A23 ("Brown was the crucial opening wedge in the struggle to dismantle legal segregation in the United States."); Nicholas Lemann, Brown, Now, N.Y. Times, May 18, 1994, at A23 (arguing that Brown "forever changed the racial consciousness of the nation"); Anthony Lewis, Brown v. Board, N.Y. Times, May 16, 1994, at A17 (arguing that Brown "started this country on an extraordinary undertaking: to undo 300 years of legally enforced racism").

[FN8]. Michael J. Perry, Noninterpretive Review in Human Rights Cases: A Functional Justification, 56 N.Y.U. L. Rev. 278, 299 (1981). Professor Perry's mode of argument is reminiscent of Justice Goldberg's defense of noninterpretivist constitutional interpretation in Griswold. See Griswold v. Connecticut, 381 U.S. 479, 496-97 (1965) (Goldberg, J., concurring) (noting that the "logic of the dissents" would constitutionally validate a law compelling parental sterilization after the birth of two children).

[FN9]. Judith A. Baer, Equality Under the Constitution: Reclaiming the Fourteenth Amendment 282 (1983).

[FN10]. Kenneth L. Karst, Why Equality Matters, 17 Ga. L. Rev. 245, 287 (1983).

[FN11]. Alpheus T. Mason, The Warren Court and the Bill of Rights, 56 Yale Rev. 197, 210 (1967).

[FN12]. Laurence H. Tribe, American Constitutional Law 583 (1978).

[FN13]. Paul L. Murphy, Book Review, 65 Minn. L. Rev. 158, 165 (1980) (reviewing John Hart Ely, Democracy and Distrust (1980)).

[FN14]. Paul L. Murphy, The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR(1972). For additional examples, see, e.g., Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063, 1104 n.226 (1981) (rejecting "pure, unconstrained utilitarianism" with no judicial review because "it allows for intuitively horrible results"); Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 906 (1963) (noting "the widespread acceptance of judicial review in the United States as a crucial element in maintaining those mechanisms of the democratic process which safeguard the rights of individuals and minorities against the majority"); John J. Gibbons, Keynote Address, Constitutional Adjudication and Democratic Theory Symposium, 56 N.Y.U. L. Rev. 260, 274 (1981) (arguing that noninterpretive judicial review is necessary "as a source of protection against gross invasions of individual autonomy such as compulsory abortions or sterilizations"); David W. Louisell, The Man and the Mountain: Douglas on Religious Freedom, 73 Yale L.J. 975, 988 (1964) (calling the Court "the best protector of our freedom, ... one of the world's great moral teachers" and "the indispensable brake on the excesses of democracy").

[FN15]. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,J. Pub. L. 279, 284 (1957).

[FN16]. See sources cited infra note 101.

[FN17]. Cf. Robert G. McCloskey, Reflections on the Warren Court, 51 Va. L. Rev. 1229, 1233-34 (1965) (arguing that the Warren Court, especially after the late 1950s, displayed greater judicial activism than any other Court in American history).

[FN18]. See Leonard W. Levy, Judicial Review, History, and Democracy: An Introduction, in Judicial Review and the Supreme Court 1, 15-20 (Leonard W. Levy ed., 1967). The articles noted in the text are Henry S. Commager, Judicial Review and Democracy, reprinted in Judicial Review and the Supreme Court, supra, at 64; John P. Frank, Review and Basic Liberties, in Supreme Court and Supreme Law 109 (Edmond Cahn ed., 1954).

[FN19]. Levy, supra note 18, at 20.

[FN20]. Id.

[FN21]. See, e.g., David G. Barnum & John L. Sullivan, The Elusive Foundations of Political Freedom in Britain and the United States, 52 J. Pol. 719, 731-32 (1990); Girardeau A. Spann, Pure Politics, 88 Mich. L. Rev. 1971, 1973-74 (1990); Steven L. Winter, An Upside/Down View of the Countermajoritarian Difficulty, 69 Tex. L. Rev. 1881, 1889-90 (1991). Cf. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991) (arguing that courts cannot effectuate significant social change independently of broad extralegal forces, and thus implicitly denying the existence of a substantial countermajoritarian problem); Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,Stud. in Amer. Pol. Dev. 35 (1993) (arguing that many landmark instances of judicial review, such as Dred Scott and Roe v. Wade, involve not countermajoritarianism, but rather legislative delegation to courts of difficult issues that threaten to disrupt existing political coalitions).

[FN22]. See Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993).

[FN23]. See id. at 580-81.

[FN24]. Id. at 604 n.135.

[FN25]. Chambers, 309 U.S. at 241; see supra noteand accompanying text.

[FN26]. See, e.g., Spann, supra note 21, at 1991 (noting that Brown is the case most often cited as establishing the viability of countermajoritarian judicial review).

[FN27]. See infra notes 97-100 and accompanying text.

[FN28]. See Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81, 87 & n.11 (1994) (citing sources).

[FN29]. See id. at 88-89 & nn.13-14, 117 & n.69 (citing sources). On the causes of these civil rights advances, see Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 13-71 (1994).

[FN30]. See, e.g., Hazel G. Erskine, The Polls: Race Relations, 26 Pub. Opinion Q. 137, 139 (1962) (reporting 1956 public opinion polls concerning racial segregation in public education); Herbert H. Hyman & Paul B. Sheatsley, Attitudes Toward Desegregation, Sci. Am., Dec. 1956, at 35, 36; see also Friedman, supra note 22, at 608 & nn.150-51 (noting poll data).

[FN31]. See infra text accompanying notes 91-93.

[FN32]. Cf. Memorandum of William O. Douglas (Jan. 25, 1960), in The Douglas Letters: Selections from the Private Papers of Justice William O. Douglas 169 (Melvin I. Urofsky ed., 1987) (noting Justice Frankfurter's statement in 1960 that had the segregation cases reached the Court in the mid-1940s he would have voted to uphold segregation because "'public opinion had not then crystallized against it"').

[FN33]. See, e.g., Gong Lum v. Rice, 275 U.S. 78 (1927); Berea College v. Kentucky, 211 U.S. 45 (1908); cf. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (enforcing the principle of separate-but-equal in higher education rather than requiring desegregation).

[FN34]. See Reed v. Reed, 404 U.S. 71 (1971).

[FN35]. See, e.g., Goesaert v. Cleary, 335 U.S. 464 (1948) (bartending); Hoyt v. Florida, 368 U.S. 57 (1961) (jury service). For a discussion of the Court's traditional resistance to sex discrimination claims, see Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 Wash. U. L.Q. 161, 162-64.

[FN36]. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (only women should be nurses); Orr v. Orr, 440 U.S. 268 (1979) (only men can be the household provider); Reed, 404 U.S. 71 (men have superior business ability to be estate administrators).

[FN37]. See Rostker v. Goldberg, 453 U.S. 57 (1981).

[FN38]. Cf. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. 511 (1994) (noting that "[p]erhaps the most surprising thing about these [gender discrimination] decisions is what a small and relatively unimportant part of the women's revolution they turned out to be").

[FN39]. 381 U.S. 479 (1965).

[FN40]. See Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America 230 (1992); Mary L. Dudziak, Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut, 75 Iowa L. Rev. 915, 920 (1990).

[FN41]. See Jeffries, supra note 38, at 351 (noting that the Court in Griswold was "hurrying Connecticut along the path taken by the nation as a whole").

[FN42]. 410 U.S. 113 (1973).

[FN43]. See Jeffries, supra note 38, at 332; Rosenberg, supra note 21, at 175.

[FN44]. See Samuel Walker, In Defense of American Liberties: A History of the ACLU 302 (1990).

[FN45]. See David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 605, 607 (1994); Friedman, supra note 22, at 607 n.148. In fairness, I should point out that Garrow rejects my interpretation of Roe as riding the crest of a wave of public opinion. See Garrow, supra, at ch.(arguing that the abortion rights movement had stalled in the political arena by the early 1970s).

[FN46]. See Walker, supra note 44, at 301-02.

[FN47]. Cf. Jeffries, supra note 38, at 350-52 (suggesting that Justice Powell and his colleagues in Roe were endeavoring to anticipate the future trend in abortion regulation based on their perception that abortion restrictions were undergoing liberalization).

[FN48]. 478 U.S. 186 (1986).

[FN49]. See Jeffries, supra note 38, at 514-28.

[FN50]. See Walker, supra note 44, at 312. On the American Psychiatric Association's action, see Michael J. Perry, Substantive Due Process Revisited: Reflections on (and Beyond) Recent Cases, 71 Nw. U. L. Rev. 417, 448 (1977).

[FN51]. See Friedman, supra note 22, at 608 n.153.

[FN52]. Professor Robert Nagel makes a similar point. See Robert F. Nagel, How Useful is Judicial Review in Free Speech Cases?, 69 Cornell L. Rev. 302 (1984); see also Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 153 (1991) (quoting Zechariah Chafee, Jr. to the effect that "in the long run the public gets just as much freedom of speech as it really wants").

[FN53]. See David M. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514 (1981) (enumerating the panoply of ways in which free speech claims were defeated prior to World War I).

[FN54]. See, e.g., Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919).

[FN55]. See Curt Gentry, J. Edgar Hoover: The Man and the Secrets 75-76 (1991); Murphy, supra note 14, at 65. On the World War I race riots, see Elliott M. Rudwick, Race Riotat East St. Louis, July 2, 1917 (1964); William M. Tuttle, Jr., Race Riot: Chicago in the Red Summer of 1919 (1970).

[FN56]. Murphy, supra note 14, at 67.

[FN57]. Justices Holmes and Brandeis were the exceptions. On the famous Holmesian conversion, see G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self ch. 12 (1993); Fred D. Ragan, Justice Oliver 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).

[FN58]. See, e.g., Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931).

[FN59]. See, e.g., Schneider v. State, 308 U.S. 147 (1939) (Jehovah's Witnesses); Lovell v. City of Griffin, 303 U.S. 444 (1938) (same); Thornhill v. Alabama, 310 U.S. 88 (1940) (labor unions); Hague v. CIO, 307 U.S. 496 (1939) (same).

[FN60]. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940). For a review of critical commentaries, see David R. Manwaring, Render Unto Caesar: The Flag-Salute Controversy 160 (1962); Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law 532 (1956).

[FN61]. See, e.g., United States v. Robel, 389 U.S. 258 (1967) (communists); Brandenburg v. Ohio, 395 U.S. 444 (1969) (Ku Klux Klan); see also R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) (invalidating hate speech ordinance as applied to racially-motivated cross burning).

[FN62]. See Dennis v. United States, 341 U.S. 494 (1951) (Smith Act); American Communications Ass'n v. Douds, 339 U.S. 382 (1950) (Taft-Hartley Act); Garner v. Board of Pub. Works, 341 U.S. 716 (1951) (local affidavit requirements).

[FN63]. See Richard M. Fried, Nightmare in Red: The McCarthy Era in Perspective 138-41 (1990); William Manchester, The Glory and the Dream: A Narrative History of America, 1932-1972, at 765-66 (1973).

[FN64]. See, e.g., Kent v. Dulles, 357 U.S. 116 (1958) (construing the statute granting broad discretion to the Secretary of State to withhold passports not to authorize denials to American citizens because they are communists); Cole v. Young, 351 U.S. 536, 544 (1956) (interpreting the Internal Security Act of 1950 to limit its employee security program to "'sensitive' agencies"); see also L.A. Powe, Jr., Does Footnote Four Describe?, 11 Const. Commentary 197, 203 (1994) (stating that the Court's anti-McCarthyite decisions of the late 1950s "nibbled at the fringes of the loyalty-security program").

[FN65]. Compare Barenblatt v. United States, 360 U.S. 109 (1959) and Uphaus v. Wyman, 360 U.S. 72 (1959) (rejecting First Amendment challenges to legislative committee investigations of communists) with Watkins v. United States, 354 U.S. 178 (1957) and Sweezy v. New Hampshire, 354 U.S. 234 (1957) (constraining such investigations). For a useful discussion of the political context of these decisions, see C. Herman Pritchett, Congress Versus the Supreme Court, 1957-1960, at ch.(1961).

[FN66]. See, e.g., United States v. Robel, 389 U.S. 258 (1967); Lamont v. Postmaster Gen., 381 U.S. 301 (1965).

[FN67]. Michael Kent Curtis's study of antebellum Southerners' wide-ranging efforts to suppress antislavery speech provides further confirmation of this point. Southerners saw abolitionist literature as a threat to their very survival; accordingly, they did not view its suppression as inconsistent with their commitment to free speech principles. See Michael K. Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835-37, 89 Nw. U. L. Rev. 785, 802-04, 817, 849-59 (1995).

[FN68]. See Engel v. Vitale, 370 U.S. 421 (1962) (school prayer); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (Bible reading); see also Frank J. Sorauf, The Wall of Separation: The Constitutional Politics of Church and State 355 (1976) (concluding that in the Establishment Clause context the Court has protected religious minorities from majoritarian overreaching).

[FN69]. On the opinion polls, see Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 Yale L.J. 821, 842 & n.77 (1985); Friedman, supra note 22, at 608 & n.155. On defiance by local school districts, see Sorauf, supra note 68, at 292-93, 296; Stephen L. Wasby, The Impact of the United States Supreme Court: Some Perspectives 131-32 (1970); Ellis Katz, Patterns of Compliance with the Schempp Decision, 14 J. Pub. L. 396, 401-06 (1965); H. Frank Way, Jr., Survey Research on Judicial Decisions: The Prayer and Bible Reading Cases, 21 W. Pol. Q. 189 (1968). On the congressional opposition, see Sorauf, supra note 68, at 312-13; Katz, supra, at 398-401.

[FN70]. See infra Part III.C.

[FN71]. See, e.g., Sorauf, supra note 68, at 297-98; Way, supra note 69, at 199 tbl. 5.

[FN72]. Most commentators seeking to minimize the countermajoritarian problem (or the countermajoritarian virtue, if one prefers) emphasize the external constraints on the justices' ability to resist majoritarian influences--for example, the presidential appointments power, congressional control over the Court's appellate jurisdiction, or the impeachment check. See, e.g., Dahl, supra note 15, at 284-85; Perry, supra note 8, at 331-41. While external checks are not insignificant, I believe the phenomenon of limited countermajoritarianism that I have described in this Part is more attributable to internal constraints on the justices' inclination to resist majoritarian norms than to external checks on their power to do so. That is, the Court strays relatively little from majoritarian impulses because the justices are embedded in majoritarian culture. For other scholarly accounts emphasizing the force of such internal constraints, see Friedman, supra note 22, at 614-15; Winter, supra note 21, at 1925 ("[J]udges cannot even think without implicating the dominant normative assumptions that shape their society and reproduce their political and cultural context.").

[FN73]. Cf. Frank H. Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349, 370 (1992) (noting that, "with the exception of its holdings about race relations," the Court "extirpates in the name of the Constitution practices that have already disappeared or dwindled among the states"); Powe, supra note 64, at 210-12 (arguing that much of what the Warren Court did was use national values to attack outliers, especially in the South).

[FN74]. 381 U.S. 479 (1965); see also Dudziak, supra note 40, at 920 (noting that Connecticut and Massachusetts "lagged behind" most other states in the reform of birth control laws).

[FN75]. 372 U.S. 335 (1963); see also Comment, Right to Counsel: The Impact of Gideon v. Wainwright in the Fifty States,Creighton L. Rev. 103, 104 (1970) (noting that Gideon would have been provided with counsel in 45 states).

[FN76]. 268 U.S. 510 (1925); see also William G. Ross, Forging New Freedoms: Nativism, Education, and the Constitution, 1917-1927, at 134, 148 (1994) (noting that Oregon was the only state ever to adopt a compulsory public education law).

[FN77]. 383 U.S. 663 (1966); see also id. at 666 n.4 (noting that only three states besides Virginia, all in the South, were still imposing a poll tax in 1966).

[FN78]. 433 U.S. 584 (1977); see also Jeffries, supra note 38, at 435 (noting that Georgia was the only state imposing the death penalty for rape of an adult woman).

[FN79]. 431 U.S. 494 (1977); see also Robert A. Burt, The Constitution of the Family, 1979 Sup. Ct. Rev. 329, 391 (noting the "oddity" of the invalidated ordinance).

[FN80]. See Brown v. Board of Educ., 347 U.S. 483 (1954) (racial segregation); Furman v. Georgia, 408 U.S. 238 (1972) (death penalty); Roe v. Wade, 410 U.S. 113 (1973) (abortion); Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) (affirmative action); Bowers v. Hardwick, 478 U.S. 186 (1986) (sexual orientation).

[FN81]. For the argument that the Warren Court saw itself as predicting progress, see Alexander M. Bickel, The Supreme Court and the Idea of Progress ix, 12-14, 99-100 (1970). For the argument that Roe and Furman are best understood in this same light, see Jeffries, supra note 38, at 350-52, 413-14.

[FN82]. Cf. Memorandum from William H. Rehnquist, law clerk, to Justice Robert Jackson, A Random Thought on the Segregation Cases(Library of Congress, Jackson Papers, Box 184, case file: segregation cases) (arguing that "in the long run it is the majority who will determine what the constitutional rights of the minority are"). Southern slaveholders, one of the classic political minorities in American history, fully appreciated this point. See, e.g., Jesse T. Carpenter, The South as a Conscious Minority: 1789-1861, at 141 (1930) (quoting Abel P. Upshur at the Virginia Constitutional Convention of 1829-30 to the effect that "no 'paper guarantee was ever yet worth any thing, unless the whole, or at least a majority of the community, were interested in maintaining it"').

[FN83]. See Benjamin N. Cardozo, The Nature of the Judicial Process 168 (1921) ("The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.").

[FN84]. See, e.g., Dahl, supra note 15, at 293-94 (observing that within the "somewhat narrow limits set by the basic policy goals of the dominant alliance, the Court can make national policy"); McCloskey, supra note 17, at 1269 (noting that the Court can unlock tendencies "immanent in the public mind" even if it cannot "drag the nation to goals it is not already somewhat disposed to accept"); Winter, supra note 21, at 1925-26.

[FN85]. Jeffries, supra note 38, at 330.

[FN86]. See, e.g., Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 815-16 (1991) (arguing that "rational discourse on this question [Brown's normative soundness] has become well nigh impossible"); Richard A. Posner, Bork and Beethoven, 42 Stan. L. Rev. 1365, 1374 (1990) ("No constitutional theory that implies that Brown v. Board of Education ... was decided incorrectly will receive a fair hearing nowadays ....").

[FN87]. Compare Klarman, supra note 29, at 10 (arguing that "a variety of deep-seated social, political, and economic forces.... would have undermined Jim Crow regardless of Supreme Court intervention") with David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education, 80 Va. L. Rev. 151, 151 (1994) (attributing the "revisionist devaluing of Brown" to "[t]he professorial urge for interpretive novelty"). Of course, one's motives can also be questioned for defending Brown's significance. See, e.g., Gerald N. Rosenberg, Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case, 80 Va. L. Rev. 161, 170 (1994) (suggesting that Klarman's backlash thesis regarding Brown's significance must have been motivated by a desire "to find a central role for the Court in producing significant social reform").

[FN88]. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 952 & n.16 (1995); cf. Jeffries, supra note 38, at 330 ("More powerful by far than any academic theory of constitutional interpretation is the legend of Brown.").

[FN89]. See Klarman, supra note 29, at 13-71. On the relative salience of various forces for racial change, see Michael J. Klarman, Brown v. Board of Education: Facts and Political Correctness, 80 Va. L. Rev. 185, 191 (1994).

[FN90]. See supra text accompanying note 29.

[FN91]. See Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, at 213 (1994).

[FN92]. Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality 684 (1975).

[FN93]. See Tushnet, supra note 91, at 192, 210. For additional examples, see id. at 143-44.

[FN94]. See Rosenberg, supra note 21, at 50-52 & tbl. 2.1; Neil R. McMillen, The Citizens' Council: Organized Resistance to the Second Reconstruction, 1954- 64, at 9-10 (1971).

[FN95]. See Rosenberg, supra note 21, at 50-52, 99-100.

[FN96]. The conventional view is that Brown inspired the civil rights movement by increasing the salience of the civil rights issue, pricking the conscience of white Americans, and raising the hopes and expectations of African Americans. See Klarman, supra note 29, at 77 & nn.332-33 (citing sources). My own view is that Brown advanced the civil rights cause indirectly by fostering Southern massive resistance, which in turn created political incentives for Southern public officials to violently suppress peaceful civil rights demonstrations, leading to a backlash in Northern opinion which then rallied behind transformative civil rights legislation. See id. at 85-150.

[FN97]. Perry, supra note 8, at 348.

[FN98]. C. Herman Pritchett, Equal Protection and the Urban Majority, 58 Am. Pol. Sci. Rev. 869, 869 (1964).

[FN99]. Jeffries, supra note 38, at 131; Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution 116 (1994).

[FN100]. J. Harvie Wilkinson III, From Brown to Bakke: The Supreme Court and School Integration: 1954-1978, at(1979). For additional statements to similar effect, see sources cited in Klarman, supra note 29, atn.2.

[FN101]. See, e.g., Felix Frankfurter, Can the Supreme Court Guarantee Toleration?, New Republic, June 17, 1925, at 85, 87, reprinted in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 174, 178 (Philip B. Kurland ed., 1970) (reminding liberals "that the real battles of liberalism are not won in the Supreme Court"); Learned Hand, The Contribution of an Independent Judiciary to Civilization, reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand 172, 181 (Irving Dilliard ed., 1952) (1944) (warning that "a society so riven that the spirit of moderation is gone, no court can save"); Dahl, supra note 15, at 284 (arguing that heroic conceptions of judicial review are naive); Commager, supra note 18, at 68 (observing that "the judicial record in the important field of personal liberties is practically barren"); Frank, supra note 18, at 136 (concluding that judicial review "has not been of any great significance to the civil liberties of the American people"); H.B. Mayo, An Introduction to Democratic Theory 187 (1960) (concluding that "restraint and forbearance as they operate in the free political process--[are] the only protection[s] a democracy can offer against tyranny"); Loren P. Beth, The Case for Judicial Protection of Civil Liberties, 17 J. Pol. 100, 110 (1955) (confessing "no illusions concerning the long range effectiveness of judicial protection for civil liberties").

[FN102]. See Dahl, supra note 15, at 293-95 (noting that Brown illustrates not countermajoritarian heroics but rather the capacity of the Court to reinforce a set of norms that is widespread but has yet to be translated into law); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 31-35 (1959) (criticizing Brown for not resting upon any "neutral principle").

[FN103]. Quoted in Samuel Krislov, The Supreme Court and Political Freedom 53 (1968).

[FN104]. Mayo, supra note 101, at 204; see also Friedman, supra note 22, at 614 (calling the notion of courts defining rights in a manner aloof from popular politics "a myth that could capture a nation's heart").

[FN105]. Compare, e.g., Marbury v. Madison,U.S. (1 Cranch) 137, 175- 79 (1803) (defending judicial review) with Eakin v. Raub, 12 Serg. & Rawle 330, 345-58 (Pa. 1825) (Opinion of Gibson, J.) (criticizing judicial review); see also Murphy, supra note 13, at 158-59 (noting that Jefferson, Lincoln, and others remarked upon the antidemocratic tendencies of judicial review). For a summary of some of the relevant recent literature, see Klarman, supra note 86, at 772-82.

[FN106]. See Korematsu v. United States, 323 U.S. 214 (1944).

[FN107]. See Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); see also Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842)(holding Pennsylvania personal liberty law designed to protect free blacks from kidnapping preempted by federal Fugitive Slave Law and inconsistent with slaveowners' self-help right of recaption under the Constitution's Fugitive Slave Clause).

[FN108]. See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898) (rejecting challenge to black disfranchisement provisions of Mississippi constitution); Plessy v. Ferguson, 163 U.S. 537 (1896) (rejecting challenge to railway segregation statute); The Civil Rights Cases, 109 U.S.(1883) (invalidating public accommodations provisions of the 1875 Civil Rights Act as beyond congressional power).

[FN109]. See, e.g., J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994) (ruling unconstitutional gender-based peremptory challenges); Georgia v. McCollum, 505 U.S. 42 (1992) (extending the ban on race-based peremptory challenges); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (invalidating hate crime ordinance).

[FN110]. 163 U.S. 537 (1896). This is a tendency, not a universal rule. Some recent scholarship, especially that written by constitutional historians, strives to understand Plessy in its socio-political context. See, e.g., Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation(1987) (observing that "simply condemning the decision promotes an understanding neither of it nor of America in the late nineteenth century"); Wiecek, supra note 100, at 104-05.

[FN111]. Michael J. Perry, The Constitution in the Courts: Law or Politics? 145 (1994); Baer, supra note 9, at 112; Paul Oberst, The Strange Career of Plessy v. Ferguson, 15 Ariz. L. Rev. 389, 417 (1973).

[FN112]. Ronald Dworkin, Mr. Liberty, N.Y. Rev. Books, Aug. 11, 1994, at 17, 20 n.4 (reviewing Gerald Gunther, Learned Hand: The Man and the Judge (1994)).

[FN113]. Robert J. Harris, The Quest for Equality: The Constitution, Congress and the Supreme Court 101 (1960). For additional examples of scholarship vilifying Plessy, see sources cited in Lofgren, supra note 110, at 3-4 & nn.2-3; see also Planned Parenthood v. Casey, 112 S. Ct. 2791, 2813 (1992) (opinion of O'Connor, Kennedy & Souter, JJ.) ("[W]e think Plessy was wrong the day it was decided.").

[FN114]. For discussion of these various forces, see, e.g., Catherine A. Barnes, Journey from Jim Crow: The Desegregation of Southern Transit 8-9 (1983); Roger A. Fischer, The Segregation Struggle in Louisiana, 1862-77, at 154-55 (1974); George M. Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914, at 230-308 (1971); David A. Gerber, Black Ohio and the Color Line, 1860-1915, at ch. 10 (1976); Kenneth L. Kusmer, A Ghetto Takes Shape: Black Cleveland, 1870-1930, at 30-31 (1976); Lofgren, supra note 110, at ch. 5; I.A. Newby, Jim Crow's Defense: Anti-Negro Thought in America, 1900-1930, at 7-16 (1965); Emma Lou Thornbrough, The Negro in Indiana Before 1900: A Study of a Minority 314-16 (1985); C. Vann Woodward, Origins of the New South: 1877-1913, at 324-25, 462 (1951); Patricia Hagler Minter, The Codification of Jim Crow: The Origins of Segregated Railroad Transit in the South, 1865-1910, at 144, 184, 186-87 (1994) (unpublished Ph.D. dissertation, University of Virginia). For additional sources describing the growing Northern receptivity to de jure school segregation around the turn of the century, see Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1917 n.91 (1995). See also Davison M. Douglas, The Limits of Law: School Segregation in the Pre-Brown North (September 1995) (unpublished manuscript, on file with the Virginia Law Review Association) (describing in rich detail the failure of Northern states around the turn of the century to enforce their statutes forbidding school segregation).

[FN115]. See Lofgren, supra note 110, at 200; Stephen J. Riegel, The Persistent Career of Jim Crow: Lower Federal Courts and the "Separate but Equal" Doctrine, 1865-1896, 28 Am. J. Legal Hist. 17 (1984).

[FN116]. Lofgren, supra note 110, at 5; see also Melvin I. Urofsky, A March of Liberty: A Constitutional History of the United States 482 (1988) (noting that while the Civil Rights Cases of 1883 had elicited a strong protest in some parts of the North, "the Plessy decision caused hardly a ripple").

[FN117]. Buchanan v. Warley, 245 U.S. 60 (1917), unanimously invalidating a residential segregation ordinance, is an obvious exception, explicable in terms of the Lochner-era Court's commitment to protecting property rights.

[FN118]. 323 U.S. 214 (1944).

[FN119]. 341 U.S. 494 (1951).

[FN120]. Madsen v. Women's Health Center, 114 S. Ct. 2516, 2549 (1994) (Scalia J., concurring in part and dissenting in part).

[FN121]. Perry, supra note 111, at 145; Laurence H. Tribe, In What Vision of the Constitution Must the Law be Color-Blind?, 20 J. Marshall L. Rev. 201, 202 (1986); Baer, supra note 9, at 113, 149; Powe, supra note 64, at 209.

[FN122]. David J. Garrow, Doing Justice, The Nation, Feb. 27, 1995, at 278, 280 (book review).

[FN123]. See Peter Irons, Justice at War 26-27 (1983); Studs Terkel, "The Good War": An Oral History of World War Two 25-26, 35-36 (1984).

[FN124]. See Terkel, supra note 123, at 26.

[FN125]. See Irons, supra note 123, at 40.

[FN126]. My account of the background to internment is derived from id. at ch. 3.

[FN127]. On the ACLU position, see id. at 128-30; Walker, supra note 44, at 139-41. It is instructive to note that one committed civil libertarian of the period--indeed the law clerk who had authored the famous Carolene Products footnote--defended exclusion and internment contemporaneously. See Louis Lusky, Minority Rights and the Public Interest, 52 Yale L.J. 1, 40 (1942) (justifying exclusion of Japanese-Americans from the West Coast on the ground that "decades of incessant hostility toward this group have ... hampered the inculcation of loyalty to our government").

[FN128]. See Irons, supra note 123, at 345.

[FN129]. Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties 116 (1991).

[FN130]. Martin Shapiro, Freedom of Speech: The Supreme Court and Judicial Review 70 (1966).

[FN131]. Michael E. Parrish, Justice Frankfurter and the Supreme Court, in The Jewish Justices of the Supreme Court Revisited: Brandeis to Fortas 61, 77 (Jennifer M. Lowe ed., 1994); Ronald Dworkin, Taking Rights Seriously 148 (1977); see also Howard Ball & Phillip J. Cooper, Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution 145 (1992) (stating that the Court in Dennis was "not sensitive to the preservation of freedoms for political deviants").

[FN132]. See Fried, supra note 63, at 62, 87-95, 113-19; Manchester, supra note 63 at 520-22.

[FN133]. Cf. McCloskey, supra note 17, at 1239 (noting that McCarthyism "puzzled the will of the Justices, as it did the will of America") (emphasis added).

[FN134]. See Walker, supra note 44, at 208-11.

[FN135]. See Fried, supra note 63, at 95-96, 99-100 (CIO); Greenberg, supra note 99, at 102-04 (NAACP); Edward S. Shapiro, A Time for Healing: American Jewry Since World War II, at 36-37 (1992) (American Jewish Committee).

[FN136]. See Fried, supra note 63, at 171.

[FN137]. See Klarman, supra note 29. For other useful discussions of the forces making racial change possible, see Doug McAdam, Political Process and the Development of Black Insurgency, 1930-1970, at ch.5 (1982); Rosenberg, supra note 21, at ch. 4.

[FN138]. For a fuller discussion, see Klarman, supra note 29, at 13-71.

[FN139]. See Tushnet, supra note 91, at 142.

[FN140]. Frank, supra note 18, at 114.

[FN141]. Probably the most famous prewar debates involving free expression were the IWW free speech fights. See David M. Rabban, The IWW Free Speech Fights and Popular Conceptions of Free Expression Before World War I, 80 Va. L. Rev. 1055 (1994).

[FN142]. See Paul L. Murphy, Sources and Nature of Intolerance in the 1920s, 51 J. Am. Hist. 60, 65 (1964); see also Murphy, supra note 14, at ch.(discussing the restrictive postwar laws and noting that such laws failed of enactment only in Wisconsin and North Dakota).

[FN143]. See supra notes 52-57 and accompanying text.

[FN144]. For the rest of this paragraph, see Murphy, supra note 14, at 134- 37, 167, 179-80, 231-34, 253, 270-71.

[FN145]. See Stromberg v. California, 283 U.S. 359 (1931); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

[FN146]. See De Jonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937).

[FN147]. See Watkins v. United States, 354 U.S. 178 (1957); Sweezy v. New Hampshire, 354 U.S. 234 (1957).

[FN148]. See supra notes 61-67 and accompanying text.

[FN149]. Compare R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (protecting racial hate speech) and Brandenburg v. Ohio, 395 U.S. 444 (1969) (protecting Klan member's speech) with Beauharnais v. Illinois, 343 U.S. 250 (1952) (holding distribution of white supremacist literature unprotected) and New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) (upholding mandatory disclosure of Klan membership lists).

[FN150]. This paragraph, except where otherwise noted, draws upon Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (1979).

[FN151]. On this point, in addition to Murphy, see Donald Johnson, Wilson, Burleson, and Censorship in the First World War, 28 J.S. Hist. 46, 48-55 (1962).

[FN152]. On the formation of the ACLU, in addition to Murphy, see Walker, supra note 44, at pt. 1. The examples provided in the text consist entirely of government suppression. Vigilante control of dissent was even more pervasive. See, e.g., James H. Fowler, II, Tar and Feather Patriotism: The Suppression of Dissent in Oklahoma During World War I, 56 Chron. Okla. 409 (1978-79).

[FN153]. Murphy, supra note 14, at 57. For the remainder of this paragraph, see id. at 86-88, 157-59, 162-63.

[FN154]. For a more detailed explication of this episode, which reaches a similar conclusion regarding its backlash effect on the Red Scare, see Thomas E. Vadney, The Politics of Repression: A Case Study of the Red Scare in New York, 49 N.Y. Hist. 56 (1968).

[FN155]. Murphy, supra note 14, at 158.

[FN156]. Id. at 9.

[FN157]. To illustrate this point with an analogy, consider the relative demise of federalism restrictions on national government power in the twentieth century. To the extent--and it was a substantial extent--that states' rights doctrine came to be associated with white supremacy and massive resistance to Brown, the doctrine was bound to become tarnished in the popular imagination as Brown's commitment to racial equality came to be seen by the 1960s as unambiguously right.

[FN158]. See Murphy, supra note 14, at ch.8; Walker, supra note 44, at 51- 55; Jerold S. Auerbach, The LaFollette Committee: Labor and Civil Liberties in the New Deal, 51 J. Am. Hist. 435, 436-37 (1964). Because the political left at this time tended to view civil liberties violations as rooted in economic conflict, see, e.g., id. at 442, this disproportionate focus on the concerns of organized labor is not surprising.

[FN159]. See Murphy, supra note 14, at 49-50, 52. For the rest of the paragraph, see id. at 71, 99, 131, 138-41, 144.

[FN160]. Social Work Yearbook, 1929, at 86 (Fred S. Hall, ed., 1930) quoted in id. at 132.

[FN161]. See Kenneth W. Goings, "The NAACP Comes of Age": The Defeat of Judge John J. Parker 37-38, 41-42 (1990); Richard L. Watson, Jr., The Defeat of Judge Parker: A Study in Pressure Groups and Politics, 50 Miss. Valley Hist. Rev. 213, 216-17, 219, 232 (1963).

[FN162]. See Sidney Fine, Frank Murphy, the Thornhill Decision, and Picketing as Free Speech,Lab. Hist. 99, 101 (1965).

[FN163]. See William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal: 1932-1940, at 188-90 (1963).

[FN164]. See Michael Barone, Our Country: The Shaping of America from Roosevelt to Reagan 109-10 (1990); Leuchtenburg, supra note 163, at 239-42.

[FN165]. See Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937).

[FN166]. Murphy, supra note 14, at 275. The Supreme Court decision was NLRB v. Jones & Laughlin Steel Corp., 301 U.S.(1937).

[FN167]. Auerbach, supra note 158, at 457.

[FN168]. 307 U.S. 496 (1939).

[FN169]. Murphy, supra note 14, at 277.

[FN170]. See Auerbach, supra note 158, at 455; David M. Bixby, The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic, 90 Yale L.J. 741, 781 (1981).

[FN171]. See Murphy, supra note 14, at 276-77.

[FN172]. See Thornhill v. Alabama, 310 U.S. 88 (1940).

[FN173]. See Harry Kalven, Jr., The Negro and the First Amendment (1965).

[FN174]. 357 U.S. 449 (1958).

[FN175]. 376 U.S. 254 (1964).

[FN176]. 371 U.S. 415 (1963).

[FN177]. See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963) (holding that the First Amendment protects the NAACP from being forced to disclose its membership lists); Shelton v. Tucker, 364 U.S. 479 (1960) (holding that the First Amendment protects teachers from being forced to disclose the organizations to which they belong).

[FN178]. See, e.g., Tushnet, supra note 91, at 277 (noting Frankfurter's conference statement in Button that he could not imagine "'a worse disservice than to continue being guardians of negroes"'); see also id. at 300 (noting that Alexander Bickel, Frankfurter's protege, criticized Gibson v. Florida Legislative Investigation Committee as "'creating ... some sort of special constitutional right to be an anonymous Negro"') (ellipsis in original).

[FN179]. See Murphy, supra note 14, at 229.

[FN180]. See Fried, supra note 63, at 29-36, 161-70; Stephen J. Whitfield, The Culture of the Cold War ch.(1991).

[FN181]. In addition to the civil rights cases discussed at notes 174-77 and accompanying text, see, e.g., Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (holding schoolchildrens' black armbands protesting Vietnam War protected); Street v. New York, 394 U.S. 576 (1969) (holding flag burning in protest of the shooting of James Meredith protected); Cohen v. California, 403 U.S. 15 (1971) (holding "Fuck the Draft" jacket protected).

[FN182]. See Klarman, supra note 29, at 25-26 & nn.73-75 (listing constitutional developments that were at least partially influenced by revulsion against Nazi practices). Justice Jackson's opinion in the second flag salute case quite explicitly made this linkage. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) (citing the "fast failing efforts of our present totalitarian enemies" as an example of the futility of state efforts to coerce belief, as through a compulsory flag salute), overruling Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940).

[FN183]. See Barone, supra note 164, at 32, 71-72; Henry L. Feingold, A Time for Searching: Entering the Mainstream, 1920-1945, at 192-93, 198 (1992).

[FN184]. See Henry L. Moon, Balance of Power: The Negro Vote 18-19 (1948); Nancy J. Weiss, Farewell to the Party of Lincoln: Black Politics in the Age of FDR 180, 206 tbl. IX.2, 209-10, 217-18 (1983). Roosevelt had an undistinguished record on civil rights, including opposition to proposed anti-lynching and anti-poll tax legislation; blacks supported him after 1932 largely because of the economic benefits of the New Deal. See Klarman, supra note 86, at 799 n.228 (citing sources).

[FN185]. On the economic point, see George Q. Flynn, American Catholics & the Roosevelt Presidency: 1932-1936, at ch.(1968).

[FN186]. See Barone, supra note 164, at 32, 78; Feingold, supra note 183, at 2-3, 141; Dean Banks, Creating an "American Dilemma": The Impact of Nazi Racism upon American Intergroup Relations, 1933-1940, with Special Reference to Jewish-Americans, German-Americans and the Free-Speech Movement 74-76 (1975) (unpublished Ph.D. dissertation, University of Texas); Evan Schultz, American Jews, Group Rights, and the Failure of Group Libel Statutes 15-28 (1995) (unpublished manuscript, on file with the Virginia Law Review Association).

[FN187]. The assault on German language and culture during and immediately after World War I is vividly described in Ross, supra note 76, at ch. 2-4. For additional discussion, see Barone, supra note 164, at 32, 78; Murphy, supra note 150, at 109-10, 119; Banks, supra note 186, at 229-30.

[FN188]. See Robert T. Handy, Undermined Establishment: Church-State Relations in America, 1880-1920, at 15-16 (1991); Richard E. Morgan, The Supreme Court and Religion 46-48 (1972); Ross, supra note 76, at 142-43, 149- 51.

[FN189]. Cf. Bixby, supra note 170, at 782-83 (noting that the Justice Department's increased willingness to litigate civil liberties cases was partially attributable to "[t]he need for the Roosevelt administration to respond to the demands of the New Deal coalition").

[FN190]. See, e.g., Joseph Alsop & Turner Catledge, The 168 Days 72-73 (1938); see also Ross, supra note 76, at 195 (quoting a letter from a Catholic constituent to Senator William Borah in 1937, praising his opposition to the Court-packing plan in light of the Court's earlier defense of Catholics against Oregon's compulsory public education law); cf. id. at 194 (noting that Chief Justice Taft urged Republican candidates in the 1924 elections to invoke Meyer as a counterexample to the Progressive charge that the Court only defended the interests of the plutocracy); M.B. Carrott, The Supreme Court and Minority Rights in the 1920s, 41 Nw. Ohio Q. 144, 151-52 (1969) (describing correspondence from Chief Justice Taft, indicating his awareness that decisions such as Meyer, Pierce, and Nixon v. Herndon would enlist Catholic and black constituencies in defense of judicial review against Progressive proposals to curb it).

[FN191]. See, e.g., School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (Bible reading); Engel v. Vitale, 370 U.S. 421 (1962) (school prayer); Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948) (time-release program). One might object that the reason Court intervention prior to the 1940s was unthinkable was because of the state of incorporation doctrine (that is, the Court's unwillingness to hold the Bill of Rights applicable to the states through the Fourteenth Amendment) rather than because of attitudes toward church-state separation. This explanation is inadequate. One cannot so neatly separate attitudes toward incorporation from the substance of what was being incorporated. As attitudes toward free expression changed, the Court incorporated the First Amendment against the states. See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). As attitudes toward criminal procedure changed, the Court incorporated most of the provisions of the Fourth, Fifth, Sixth, and Eighth amendments. See, e.g., Malloy v. Hogan, 378 U.S.(1964) (prohibiting state infringement of the privilege against self-incrimination). The relationship between attitudes toward the substantive rights being incorporated and the process of incorporation is complex; surely changing attitudes toward federalism also played some role here. But if the absence of incorporation were a complete answer to the question posed in the text, the performance of state courts on Establishment Clause issues would be inexplicable.

[FN192]. The closest thing to such an account that I have found is Morgan, supra note 188, which is a good beginning, but no more than that.

[FN193]. See Handy, supra note 188, at 23. On the pervasiveness of the Protestant establishment in the early nineteenth century, see Cushing Strout, Jeffersonian Religious Liberty and American Pluralism, in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History 201 (Merrill D. Peterson & Robert C. Vaughan eds., 1988).

[FN194]. See H. Frank Way, The Death of the Christian Nation: The Judiciary and Church-State Relations, 29 J. Church & St. 509, 518-19 (1987); Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 44-45 (1992).

[FN195]. Handy, supra note 188, at 12 (quoting James Bryce, The American Commonwealth 576-77 (London, MacMillan 2d ed. 1891)).

[FN196]. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892).

[FN197]. See, e.g., Cushing Strout, The New Heavens and New Earth: Political Religion in America 293-94 (1974).

[FN198]. See Strout, supra note 197, at 293; Green, supra note 194, at 38.

[FN199]. See Henry Schofield, Religious Liberty and Bible Reading in Illinois Public Schools,Ill. L. Rev. 17, 29, 32 (1911).

[FN200]. See Handy, supra note 188, at 5; Strout, supra note 193, at 229.

[FN201]. See Way, supra note 194, at 521 n.26; Geoffrey D. Berman, Note, A New Deal for Free Speech: Free Speech and the Labor Movement in the 1930s, 80 Va. L. Rev. 291, 296 & n.28 (1994).

[FN202]. See Banks, supra note 186, at 24; Schultz, supra note 186, at 15.

[FN203]. See Murphy, supra note 142; Ross, supra note 76, at 134-73; David B. Tyack, The Perils of Pluralism: The Background of the Pierce Case, 74 Am. Hist. Rev. 74 (1968).

[FN204]. Strout, supra note 197, at 304.

[FN205]. See Handy, supra note 188, at 40; Way, supra note 194, at 519-20. The action of the Cincinnati school board was duplicated in several New York cities and Chicago in the early and mid 1870s--all locales with very large Catholic populations. See Green, supra note 194, at 47.

[FN206]. See Schofield, supra note 199, at 28; Way, supra note 194, at 520. The decisions were People ex rel. Ring v. Board of Educ., 245 Ill. 334 (1910); State ex rel. Freeman v. Scheue, 91 N.W. 846 (Neb. 1902), reh'g denied, 93 N.W. 169 (Neb. 1903); State ex rel. Weiss v. Dist. Bd., 76 Wis. 177 (1890). As of the first decade of the twentieth century, the Catholic population of Illinois was over 15%, that of Wisconsin over 20%, and that of Nebraska under 10%. These percentages are calculated from tables in U.S. Dep't of Com., 1913 Statistical Abstract of the United States 34-35, 117-18 (1914).

[FN207]. The facts, but not the interpretation, are taken from Thomas C. Hunt, The Bennett Law of 1890: Focus of Conflict Between Church and State in Education, 23 J. Church & St. 69 (1981).

[FN208]. See Handy, supra note 188, at 160.

[FN209]. Way, supra note 194, at 509.

[FN210]. See Handy, supra note 188, at 127-29, 160-61.

[FN211]. See Scott McGraw, Protestant/Catholic Educational Disputes in the States 24-25 (1993) (unpublished manuscript, on file with the Virginia Law Review Association). For one particularly revealing anecdote illustrating this phenomenon, see David McCullough, Truman 164-65 (1992) (describing how Harry S Truman's experience as captain of a heavily Catholic artillery battery during World War I ameliorated his anti-Catholic prejudices and kept him out of the KKK in the 1920s).

[FN212]. See Handy, supra note 188, at 190.

[FN213]. See Andrew M. Greeley, Religious Change in America 78 tbl. 7.1 (1989).

[FN214]. Flynn, supra note 185, at 240.

[FN215]. See Feingold, supra note 183, at 86-87.

[FN216]. See Ronald H. Bayor, Neighbors in Conflict: The Irish, Germans, Jews, and Italians of New York City, 1929-1941, at 19 (1978); Feingold, supra note 183, at 145. On the extent of Jewish economic successes during the interwar period, see Feingold, supra note 183, at 125-54.

[FN217]. See Bayor, supra note 216, at 26.

[FN218]. See Peter H. Irons, The New Deal Lawyers 126-28 (1982).

[FN219]. See Handy, supra note 188, at 37.

[FN220]. See id. at 149.

[FN221]. See Barone, supra note 164, at 10, 38, 47.

[FN222]. See Bayor, supra note 216, at 40. On President Hoover's unsuccessful effort to name a Catholic Attorney General, see Gentry, supra note 55, at 147-48.

[FN223]. See Lewis L. Gould, The Presidency of Theodore Roosevelt 259 (1991); Handy, supra note 188, at 154. This does not count the famous Jewish Confederate, Judah Benjamin, who held three different positions in Jefferson Davis's Civil War cabinet. See Eli N. Evans, Judah P. Benjamin: The Jewish Confederate chs. 7-17 (1988).

[FN224]. See Bayor, supra note 216, at 31.

[FN225]. See id. at 51, 126-29, 133-35.

[FN226]. See id. at 31; Feingold, supra note 183, at 190-91, 203.

[FN227]. Way, supra note 194, at 529.

[FN228]. See Morgan, supra note 188, at 48-49; Green, supra note 194, at 42.

[FN229]. See Morgan, supra note 188, at 49-51; Green, supra note 194, at 68- 69.

[FN230]. See Way, supra note 194, at 523; see also Green, supra note 194, at 43 (reporting 29 such state constitutional provisions by 1890).

[FN231]. See Way, supra note 194, at 522.

[FN232]. See Sorauf, supra note 68, at 27; McGraw, supra note 211, at 29-30.

[FN233]. See id. at 31-32.

[FN234]. See, e.g., Bayor, supra note 216, at 94-95, 97-98, 112-13; Feingold, supra note 183, at 1-2, 8-24, 199-200, 251-52; Banks, supra note 186, at 61-62.

[FN235]. See William Manchester, The Last Lion: Winston Spencer Churchill, Alone, 1932-1940, at 190 (1988).

[FN236]. See Blanche W. Cook, Eleanor Roosevelt, 1884-1933, at 387-90 (1992) (quoting William Zuckerman, The Jews in Revolt 53 (1937)).

[FN237]. Banks, supra note 186, at 190.

[FN238]. Id. at 79.

[FN239]. See Bayor, supra note 216, at 71-73; Feingold, supra note 183, at 210; Banks, supra note 186, at vii, 81-82.

[FN240]. See Bayor, supra note 216, at 63-67, 72-74; Banks, supra note 186, at 257-58, 310-11, 442-43.

[FN241]. See Bayor, supra note 216, at 94-95, 104.

[FN242]. Id. at 73.

[FN243]. See id.; Banks, supra note 186, at 81.

[FN244]. Banks, supra note 186, at 319.

[FN245]. See Bayor, supra note 216, at 145-46; Feingold, supra note 183, at 191.

[FN246]. See Feingold, supra note 183, at 259; Shapiro, supra note 135, at 17.

[FN247]. Shapiro, supra note 135, at 16.

[FN248]. For the rest of this paragraph, see id. at 8-9, 18-19, 33-34, 39.

[FN249]. Id. at 15.

[FN250]. Id. at 28.

[FN251]. Id. at 53.

[FN252]. See Sorauf, supra note 68, at 220-21; Katz, supra note 69, at 398.

[FN253]. In the nineteenth and early twentieth centuries, the leading opponents of school prayer and Bible reading had been Catholics. By the time the Supreme Court ruled these practices inconsistent with the Establishment Clause in the early 1960s, Catholics were their staunchest defenders. See, e.g., Handy, supra note 188, at 70; Strout, supra note 197, at 300-01; Katz, supra note 69, at 398.

[FN254]. See Sorauf, supra note 68, at 33-35; Strout, supra note 197, at 301; Katz, supra note 69, at 398.

[FN255]. Compare, for example, Board of Educ. v. Allen, 392 U.S. 236 (1968) (upholding state loan of secular textbooks) and Everson v. Board of Educ., 330 U.S.(1947) (upholding state provision of bus transportation) with Aguilar v. Felton, 473 U.S. 402 (1985) (invalidating provision of public school teachers to supply remedial education and guidance services in parochial schools) and Lemon v. Kurtzman, 403 U.S. 602 (1971) (invalidating reimbursement of parochial schools for salaries, textbooks, and instructional materials used in secular courses).

[FN256]. The handful of state courts confronting laws providing public school bus transportation to parochial schools before 1935 struck down the practice. By the time the Supreme Court confronted the issue in 1947, the results in the state courts were more mixed. See McGraw, supra note 211, at 32 n.80; see also Note, The "Release Time" Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, 83 Yale L.J. 1202, 1206 (1974) [hereinafter Note, "Release Time"] (observing that state courts in the postwar era showed an increased willingness to sustain government aid to religious schools); Note, Public Funds for Sectarian Schools, 60 Harv. L. Rev. 793, 796 (1947) (noting several state courts in the immediate postwar period rejecting constitutional challenges to state-funded bus transportation for parochial schools).

[FN257]. 333 U.S. 203 (1948).

[FN258]. 370 U.S. 421 (1962).

[FN259]. See Shapiro, supra note 135, at 55.

[FN260]. See id. at 54-55; Strout, supra note 197, at 302; Arthur Hertzberg, The Protestant "Establishment," Catholic Dogma, & the Presidency, 30 Commentary 277, 285 (1960).

[FN261]. See Strout, supra note 197, at 300 (noting that Jews generally understood these decisions this way).

[FN262]. See supra text accompanying notes 228-33.

[FN263]. See generally Sorauf, supra note 68, at 34 (noting a general decrease in anti-Catholic sentiment in the 1950s and 1960s).

[FN264]. See id. at 309 (noting that the same state constitutional amendment permitting public bus transportation for students attending religious schools that failed of ratification in Wisconsin in 1946 by about 100,000 votes passed in the late 1960s by about the same margin); id. at 310 (noting that the New York legislature in 1970 was willing to pass a constitutional amendment that would have imposed a less stringent ban on public assistance for parochial schools).

[FN265]. See Feingold, supra note 183, at 215; Leuchtenburg, supra note 163, at 184.

[FN266]. See Sorauf, supra note 68, at 220. In one particularly revealing case, the Louisiana Supreme Court divided four-to-three against the constitutionality of public aid to parochial schools; the judges in the majority were all Protestant, and the dissenters were all Catholic. Id. at 222.

[FN267]. See Strout, supra note 197, at 298; see also Hertzberg, supra note 260, at 283 (noting that Protestant church leaders had resisted the election of a Catholic president in order to preserve the image of a Protestant America).

[FN268]. See Strout, supra note 197, at 301.

[FN269]. See, e.g., Theodore H. White, The Making of the President, 1960, at 260-61 (1961) (describing candidate Kennedy's famous meeting with the Greater Houston Ministerial Association).

[FN270]. Compare Zorach v. Clauson, 343 U.S. 306 (1952) with McCollum v. Board of Educ., 333 U.S. 203 (1948). The laws were plausibly distinguishable--primarily on the ground that the religious instruction in the New York program took place off school grounds--though the prevailing view at the time was that the Court had backtracked in the face of the torrent of criticism that had greeted McCollum. See Note, "Release Time," supra note 256, at 1228 (listing commentary to this effect).

[FN271]. Zorach, 343 U.S. at 313.

[FN272]. Engel, 370 U.S. at 437 n.1 (Douglas, J., concurring); Walz v. Tax Commission, 397 U.S. 664, 700 (1970) (Douglas, J., dissenting).

[FN273]. See, e.g., Sorauf, supra note 68, at 12-13; Strout, supra note 197, at 258, 296; Whitfield, supra note 180, at 77-82, 84, 88-89.

[FN274]. Sorauf, supra note 68, at 13; accord Whitfield, supra note 180, at 82-83; Strout, supra note 197, at 296.

[FN275]. Sorauf, supra note 68, at 13-14.

[FN276]. See Strout, supra note 197, at 302-03.

[FN277]. Cf. Walker, supra note 44, at 222 (noting that even the ACLU, stung by charges of being antireligious, "quietly downplayed church-state issues in the mid-1950s").

[FN278]. See Sorauf, supra note 68, at 294-95; Katz, supra note 69, at 398.

[FN279]. See Moore v. Dempsey, 261 U.S. 86 (1923) (guaranteeing a trial free of mob domination); Powell v. Alabama, 287 U.S. 45 (1932) (requiring state-appointed counsel for indigent defendants in capital cases); Norris v. Alabama, 294 U.S. 587 (1935) (mandating fair jury representation); Brown v. Mississippi, 297 U.S. 278 (1936) (ordering exclusion of physically coerced confessions). For the scholarly assessment of these decisions, see, e.g., Klarman, supra note 86, at 764; Lusky, supra note 127, at 26-30.

[FN280]. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287, 1306 (1982). For a vivid description of the administration of Jim Crow criminal justice in the most repressive Southern state, see Neil R. McMillen, Dark Journey: Black Mississippians in the Age of Jim Crow ch.(1989).

[FN281]. See, e.g., Greenberg, supra note 99, at 93-99 (describing Florida's 1949 Groveland case, in which black defendants charged with rape were convicted in a mob-dominated trial); id. at 208 (noting another case of abuse from Georgia which reached the Supreme Court in the early 1950s on review of a petition seeking to prevent extradition).

[FN282]. There is no doubt that Chief Justice Warren saw the connection, as an early draft of his Miranda opinion noted it explicitly. See Bernard Schwartz, Superchief: Earl Warren and His Supreme Court--A Judicial Biography 591 (1983); see also Louis Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673, 751 (1992) (noting that "an important impetus for the [Miranda] decision was the desire to constrain the unchecked police discretion promoting the official violence that reinforced subjugation of the black underclass").

[FN283]. See Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 522-23; Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 Mich. L. Rev. 59, 85 (1966); Herbert L. Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1, 65 (1964) (noting that "[t]he problem of crime is to an important extent a problem of poverty" and that the government is showing increasing concern with the latter).

[FN284]. 372 U.S. 335 (1963).

[FN285]. 372 U.S. 353 (1963).

[FN286]. 384 U.S. 436 (1966).

[FN287]. See William J. Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 761, 837-38 (1989); see also Schwartz, supra note 282, at 591 (quoting memorandum from Justice Brennan to Chief Justice Warren noting that "[i]f anything characterizes the group this opinion [Miranda] concerns it is poverty").

[FN288]. See Betts v. Brady, 316 U.S. 455 (1942); Breedlove v. Suttles, 302 U.S. 277 (1937).

[FN289]. See Gideon v. Wainwright, 372 U.S. 335 (1963); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966); see also Shapiro v. Thompson, 394 U.S. 618 (1969) (striking down durational residency requirements for welfare in an opinion that many read as intimating a constitutional right to welfare).

[FN290]. See supra note 283; see also David J. Bodenhamer, Fair Trial: Rights of the Accused in American History 112 (1992) (noting the coalescence of the War on Poverty and judicial activism oriented in the same direction).

[FN291]. See Francis A. Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice,DePaul L. Rev. 213, 219 (1959) (suggesting a connection between Powell v. Alabama and the rise of Hitler in Germany); Allen, supra note 283, at 522 (noting the growth of totalitarianism around the world in the 1930s and the concomitant use of criminal justice systems for evil purposes).

[FN292]. Bodenhamer, supra note 290, at 101.

[FN293]. 309 U.S. 227 (1940).

[FN294]. Id. at 236.

[FN295]. 316 U.S. 535 (1942).

[FN296]. See id. at 541 ("In evil or reckless hands [the power to sterilize] can cause races or types which are inimical to the dominant group to wither and disappear."); id. at 546 (Jackson, J., concurring) (condemning a legislative majority's conducting of "biological experiments" at the expense of a minority). For the ideological impact of the revulsion against Nazism on social science and popular attitudes toward eugenics, see Carl N. Degler, In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought 202-05 (1991).

[FN297]. See, e.g., Barry Cushman, A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin, 61 Fordham L. Rev. 105 (1992); Michael Les Benedict, Laissez-Faire and Liberty: a Re- Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,L. & Hist. Rev. 293 (1985); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez- Faire Constitutionalism, 1863-1897, 61 J. Am. Hist. 970 (1975). I have done some of this sort of work myself. See Michael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213 (1991).

[FN298]. See, e.g., Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978); Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (1971).

[FN299]. I consider Paul Murphy's pathbreaking First Amendment work, discussed supra at text accompanying notes 150-56, as an exception to this generalization. For an interesting preliminary effort at constructing a social and political history of the right to sexual autonomy, as applied to legal doctrines involving prostitution, gay sex, and pornography, see William E. Nelson, Criminality and Sexual Morality in New York, 1920-1980,Yale J.L. & Humanities 265, 311-24 (1993).

[FN300]. See James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States (1956). For other notable examples of this genre, see, e.g., Lawrence M. Friedman, History of American Law (2d ed. 1985); Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977).

[FN301]. Lawrence Friedman, American Legal History: Past and Present, 34 J. Leg. Ed. 563, 576 (1984).