Expanding Civil Rights
by Jeffrey Rosen
From the Civil War until the New Deal era, the Court was more concerned with economic rights than with civil rights and civil liberties, largely because of its decision in the late 19th century not to force the states to respect the Bill of Rights. As a result, controversies involving voting rights, criminal procedure, and religion were almost exclusively contested in state courts and legislatures before World War II. After the Court began upholding the New Deal in 1937, however, that began to change. In United States v. Carolene Products Co. (1938), the Court suggested that it would in the future uphold most economic regulation, but would be more skeptical of laws that discriminated against minorities, like African Americans, or that violated the Bill of Rights. And over the course of the 1950s and '60s, the Court began, in a piecemeal fashion, to strike down state laws that violated various guarantees in the Bill of Rights. This slow process of "incorporation" of the Bill of Rights against the states through the Fourteenth Amendment led to many of the most controversial decisions of the postwar era.
The battle to incorporate the Bill of Rights against the states was led by Justice Hugo Black, a former senator from Alabama, whose Supreme Court nomination by Franklin Roosevelt became mired in controversy after his confirmation, when the newspapers discovered that he had been a member of the Ku Klux Klan. Despite (or perhaps because of) this illiberal beginning, Black became one of the most passionate and effective civil libertarians of his time: he displayed a messianic belief that the states and the federal government should have to abide by every word in the Constitution and Bill of Rights -- nothing more and nothing less. Black's leading opponent in this crusade was Justice Felix Frankfurter, who insisted that judges should be able to pick and choose among principles fundamental to constitutional liberty. Although Frankfurter, a former Harvard law professor, condescendingly dismissed Black's claims that the framers of the Fourteenth Amendment had intended to incorporate the Bill of Rights against the states, the Court eventually came to incorporate most of it.
Black's most important victories involved the First Amendment guarantees of free speech and religion, which he revered with the fervor of a constitutional fundamentalist. (The First Amendment states that "Congress shall make no law" abridging free speech, and Black always took this command literally, insisting that no law meant "NO LAW.") He got off to a shaky start in First Amendment cases, joining Justice Frankfurter's decision for the Court in 1940 to uphold the right of public schools to expel students who refused to salute the American flag (Minersville School District v. Gobitis). But Black soon decided he had made a mistake and, three years later, helped persuade a majority of the Court to overrule Frankfurter's opinion and strike down mandatory flag salutes (West Virginia Board of Education v. Barnette). From that moment, Black was fierce in his defense of the rights of religious conscience and free speech. His most important First Amendment decision came in Engel v. Vitale (1962), where he wrote an opinion for the Court striking down state-sponsored prayers in schools -- one of the most controversial decisions of the Warren era.
Despite criticism of the Warren Court's decisions invovling individual rights, most of its decisions were popular with national majorities.
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