A.B. Middlebury College, 1970; J.D. University of Chicago, 1974. Law clerk to the Honorable John Minor Wisdom, United States Circuit Judge, 1974-1975; ...
THE HONEST MUSE: JUDGE WISDOM AND THE USES OF HISTORY BARRY SULLIVAN*
We are trav'ling in the footsteps of those who've gone before. But we'll all be reunited on a new and sunlit shore.' I.
INTRODUCTION
In the 1830's, when Tocqueville observed that lawyers constituted the intellectual aristocracy of the new nation, 2 he ignited a controversy which continues to the present day. To what extent Tocqueville's observation ever was correct, and, if correct at all, with respect to what part of the bench and bar, are questions that continue to divide students of American legal history.' * A.B. Middlebury College, 1970; J.D. University of Chicago, 1974. Law clerk to the Honorable John Minor Wisdom, United States Circuit Judge, 1974-1975; Member of the Massachusetts and Illinois bars; Partner, Jenner & Block, Chicago, Illinois. I would like to express my appreciation to Murray Dry, Margaret Fallers, Stanley N. Katz, Michael P. Palmer, Hon. Glenn K. Seidenfeld, Rayman Solomon, Winnifred F. Sullivan, and James Boyd White, all of whom provided challenging comments on an earlier draft of this essay. The responsibility for any remaining errors, of course, is mine. 1. Anonymous, When The Saints Go Marching In (song). 2. Tocqueville wrote: "The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice." 1 A. DE TOCQU.VILLE, DEMOCRACY IN AMERICA 285-86 (P. Bradley ed. 1945). "In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society." Id. at 288. Robert Ferguson has recently noted: "Thirty years before Alexis de Tocqueville's famous equation of the legal profession to an intellectual aristocracy, American lawyers already arrogated that status to themselves." R. FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE 12 (1984) (footnote omitted). But see R. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG (discussing post-Revolution hostility toward the legal REPUBLIC 111-16 (1971) profession). 3. See, e.g., Horwitz, The Conservative Tradition in the Writing of American Legal History (Essay Review), 17 Am. J. LEGAL HIsT. 275 (1973); Katz, Looking Backward: The Early History of American Law (Book Review), 33 U. CHL L. Rv. 867 (1966). Judge Wyzanski has written: But we are told by Professor Daniel J. Boorstin... that lawyers never were a learned class, and he purports to rely on eighteenth century memoirs and in-
314
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From the beginning, however, the American lawyer labored mightily, with "a peculiar and overwhelming self-confidence," to establish himself as "the ideological expounder and guardian of republican virtue."' 4 The so-called golden age of American law in the first half of the nineteenth century may well have been "a period of very weak collective standards," when lawyers "joined the bar after minimal preparation," 5 but it is beyond dispute that this period produced advocates and judges whose professional accomplishments and influence far exceeded their technical training. More important, the idea of the legal profession as an intellectual aristocracy succeeded in capturing the American imagination and setting a standard against which the bench and bar would continue to be measured. Even in the earliest days of the Republic, when legal education consisted principally of law office study,6 legal training was ventories. . . . I venture to doubt whether he does justice to those who studied under Theophilus Parsons, Professor George Wythe, and the other great tutors who educated men for the eighteenth century and early nineteenth century Bar. What I have seen of John Adams' library, what I have read of Thomas Jefferson's, what we know of the debates in the Constitutional Convention nourish my doubt. And the evidence of the libraries of lawyers of an earlier age offers a sharp contrast with what any of us can discover of the contemporary trend by browsing in second-hand bookstores. Wyzanski, History and Law, 26 U. CHL L. REV. 237, 239 (1959). Daniel Webster is often considered a representative figure of the so-called golden age of American law; but his early career in New Hampshire may be more representative of the work of the legal profession during the period than is his later career as a Boston lawyer and Supreme Court advocate. See generally Hartog, The Significance of a Singular Career: Reflections on Daniel Webster's Legal Papers(Book Review), 1984 Wis. L. REV. 1105; Botein, Love of Gold and Other Ruling Passions:The Legal Papersof Daniel Webster (Review Essay), 1985 Am. BAR FOUND. RES. J. 217, 225.
4. R.
FERGUSON,
supra note 2, at 26.
5. Id. at 29 (footnote omitted). As Professor Ferguson has noted, "many of its greatest leaders from beginning to end-Patrick Henry, John Marshall, Daniel Webster, Abraham Lincoln, and Stephen Douglas, to name only a few-joined the bar after minimal preparation." Id. Moreover, "[f]or every Jefferson devoting five full years to legal training, scores of 'Blackstone lawyers' entered the profession after a few months of study, self-proclaimed masters of one text." Id. 6. The principal exception to the apprenticeship system of legal education was the Litchfield Law School, which was established in 1784. A. SUTHERLAND, THE LAW AT HARVARD 27-29 (1967). Several colleges (beginning in 1779 with the College of William and Mary) established chairs in law and made the study of law part of the collegiate curriculum, id. at 26-27, 29-31, but the great watershed occurred in 1817, when the Harvard Law School was established. Id. at 56-62. Although Harvard offered an academic degree in law, many early students, including such renowned lawyers as Rufus Choate and Caleb Cushing, left without receiving a degree and completed their studies in the traditional manner. Id. at 64-65; see also R. ELLIs, supra note 2, at 116-21; G.
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defined by "the controlling aspirations of an intellectual elite."'7 Law office training may have been haphazard and uneven, but students of the finest practitioners received a professional education that was notable not only for its technical limitations, but also for "the panoramic directions it encouraged." 8 The ideal of the lawyer was clearly established as that of the liberally educated mind. For example, John Quincy Adams, who kept a diary of his apprenticeship with Theophilus Parsons, in Newburyport, Massachusetts, reported: "I . . . requested of Mr. Parsons his opinion, whether it would be most advantageous for me to pursue the professional study in those hours when I should not attend at the office; or whether it would be best to devote [them] to other purposes, and a diversity of studies. He answered by observing that I could not attend to any useful branch of science in which I should not find my account." 9 The conversation in Parsons's office ranged across "law, physic, history, poetry, religion, and politics, by turns," and readings included Buffon's Histoire Naturelle, the histories of Hume and Gibbon, Shakespeare, Butler's Hudibras, and Rousseau's Confessions, along with legal texts like Blackstone's Commentaries (read three times in a year and a half), Coke on Littleton ("the great magazine of legal knowledge"), and numerous books on the forms of pleading. 10 Of Parsons himself, Adams wrote: "He is in himself a lawlibrary, and a proficient in every useful branch of science; but his chief excellency is, that no student can be more fond of proposing questions than he is of solving them." '" In the early days of the Republic, circumstances and education combined to create a climate in which the legal imagination was given an unusually broad sweep. The so-called golden age of American law was an age when legal questions, at least in the GAWALT, THE PROMISE OF POWER CHUSETTrS,
THE EMERGENCE OF THE LEGAL PROFESSION IN MASSATHE LIFE OF CALEB CUSHING 35-36
1760-1840, at 129-67 (1979); 1 C. FEuss,
(1923). 7. R. FERGUSON, supra note 2, at 29. 8. Id. 9. J.Q. ADAMS, LIFE IN A NEW ENGLAND
TOWN: 1787-1788. DIARY OF JOHN QUINCY ADAMS, WHILE A STUDENT IN THE OFFICE OF THEOPHILUS PARSONS AT NEWBURYPORT 64 (C. Adams, Jr. ed. 1903); see also T. PARSONS, JR., MEMOIR OF THEOPHILUS PARSONS (1859).
10. R. FERGUSON, supra note 2, at 30 (footnote omitted). 11. J.Q. ADAMS, supra note 9, at 66.
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field of public law, necessarily were resolved by resort to first principles. 12 The paucity of binding precedent, the relative absence of statutory law,13 a republican reluctance to rest too heavily,upon English precedent,14 and a general confidence in the unity of human experience 5 all required creativity. No less 12. As numerous commentators have pointed out, for instance, Chief Justice Marshall's five greatest constitutional opinions are striking for their lack of citation to any previous judicial decision. See, e.g., L. BAKER, JOHN MARSHALL: A LIFE IN LAw 552-55 (1974); C. WARREN, A HISTORY OF THE AMERICAN BAR 403 (1911); G. WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 9-12 (1976); Horwitz, supra note 3, at 291; see also Currie, The Constitution in the Supreme Court: 17891801, 48 U. CHL L. REv. 819 (1981) (analyzing the 12 formative years between the creation of the Court and the beginning of Marshall's term as Chief Justice); Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CH. L. REV. 646 (1982) (analyzing Marshall's term as Chief Justice). Of the so-called "formative" or "transformative" era, see Katz, supra note 3, at 884, Maurice Baxter has written: "[T]he lawyers powerfully influenced the Court: these years were a formative era of constitutional law, to some extent of other branches of law as well, and counsel enjoyed the freedom of pioneers. Penetrating the unmapped wilderness of social and legal problems, they defined issues, uncovered precedents, suggested promising rules of decision. The Court, and the public too, was willing for them to do so." M. BAXTER, DANIEL WEBSTER & THE SUPREME COURT 35 (1966) (footnote omitted). See generally M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 1-30 (1977); Nelson, The
Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence,76 MICH. L. REV. 893 (1978); Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REV. 843 (1978). 13. See, e.g., G. WHITE, EARL WARREN. A PUBLIC LIFE 351 (1982) ("Activism is a distinctly twentieth-century term of art. . . .Activism assumes that repose or passivity is the normal state of affairs for the judiciary, an assumption that belies the nineteenthcentury experience, where statutory lawmaking by legislatures was relatively uncommon and where major political disputes-slavery, competition in transportation, currency reform, the existence of an income tax-were settled in the courts."). 14. See, e.g., Katz, Sullivan & Beach, Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777-1893, 3 L. & HIST. REV. 51, 59 (1985) ("continued reference to laws styled under authority of the British Crown rankled republican sensibilities."); see also C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 21 (1969) ("At one point, indeed, the opposition to British law was so great that several states enacted legislation forbidding the courts from even citing prerevolutionary British cases."). 15. As Herbert Storing has noted, "American Constitutional reform occurred during a time when sharp diversities of opinion were muted and patriotic sentiments relatively great, . . . and when excesses of liberty had made the people willing to accept a sound constitution." H. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 74 (1981). Moreover, "[t]he Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J., concurring). Thus, "[t]he eighteenth century, though not concerned with historical process, was deeply interested in history. History, if correctly studied, would yield immutable laws of society in the same way that Newtonian mechanics described nature." C. MILLER, supra note 14, at 172.
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than literature, the practice of law could be said to demand a "knowledge both of books and human kind,"' and the lawyer's aspiration was nothing less than to "see life steadily and see it 7 whole."1 The peculiar needs of the times, it may be argued, required the kind of study which Chief Justice Parsons recommended to his pupils. Parsons's recommendation of liberal learning has a broader and more persistent significance, however, because it embodies an abiding theme in the culture of American law. The ideal which it reflects was well stated by Learned Hand: I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalizations of universal applicability.' 8 One might protest that even Judge Hand's words were written more than fifty years ago, that the nature of legal practice has changed dramatically in that half-century, and that liberal learning has little to do with meeting the technical demands imposed by legal practice in the age of the administrative state. 19 16. satt ed. 17. 28-30. 18.
A. Pope, An Essay on Criticism,in SELECTED POETRY & PROSE 63,81 (W. Wim1951). E.M. FORSTER, HowARDs END 269 (1959); see also R. FERGUSON, supra note 2, at Hand, Sources of Tolerance, 79 U. PA. L. REv. 1, 12-13 (1930); see also K.
LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 107-29 (1930); K LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 35-41 (1960); Levi, The Nature of
Judicial Reasoning, 32 U. CHI L. REv. 395 (1965). 19. With the possible exception of the pleading area, see Horwitz, supra note 3, at 285-86, the technical demands of legal practice increased steadily during the first half of the nineteenth century, so that even an advocate of Webster's standing may have faced difficulties in the courts by the later stages of his public career. R FERGUSON, supra note 2, at 199-206, 230-31. The rate of change accelerated, of course, after the Civil War. "The
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More often than not, cases seem to turn, not on elegant and insightful exposition, nor on an advocate's ability to chart a course by reference to the polestar or fundamental policy of a field of law, but on his mastery of obscure, dense, and frequently illcrafted statutes and regulations, "[a]U out of shape from toe to ' 20 top.
In the face of burgeoning caseloads, judges may be
tempted to seize upon a case in point, so as to move quickly, and uncritically, on to the next assignment.21 In the age of the administrative state, it may be argued, "judges are not assumed to have the wisdom of philosopher-kings;"2 2 their authority is 23 based, not on "the personal qualities of those who are judges, establishment of the Interstate Commerce Commission in 1887, with a mild sweep of powers, dates the break with the simplicities of the past; it begins the new era of governmental regulation and administrative control." F. FRANKFURTER, THE PUBLIC AND ITS GOVERNMENT 25 (1930); see also J. LANDIS, THE ADMINISTRATIVE PROCESS 7-12 (1938)
(summarizing the growth of governmental regulation through an administrative structure). 20. W. YEATS, Under Ben Bulben, in COLLECTED POEMS 341, 343 (1951). The concept of excellence in legal study also has been narrowed. A leading appellate lawyer recently has written: "A student with no speaking ability can graduate at the top of the class. The limited occasions for speaking in law school-class discussion and moot court sessions-afford experience in the Socratic method, not in oratory. In the student's most important work in law school, the emphasis is on accurate (not stylish) writing, and that has become the dominant medium of communication in our appellate system." Shapiro, Oral Argument in the Supreme Court: The Felt Necessities of the Time, 1985 SUP. CT. HIST. Soc'Y Y.B. (forthcoming). One might well go a step further and suggest that the main occasions for writing (as well as speaking) in law school "afford experience [only] in the Socratic method." Most law schools emphasize written tests, which are typically exercises in "issue-spotting," rather than exercises in written communication. Few law schools require students, as a graduation requirement, to undertake projects requiring sustained written legal analysis. An even more serious problem is the almost exclusive preoccupation with current doctrine. Except for courses specifically devoted to legal history, Judge Wyzanski's observation in 1959 is perhaps even more accurate today- "I have the strong impression that, compared with the case-books of three decades ago, when I matriculated, history is a negligible part of the required reading. The teaching of procedure, criminal law, property, torts-no matter how old the subject-has become primarily the teaching of current practice and doctrine." Wyzanski, supra note 3, at 239-40; see also Kissam, The Decline of Law School Professionalism,134 U. PA. L. REV. 251 (1986) (discussing the decline of community in legal education). 21. See, e.g., McCree, BureaucraticJustice:An Early Warning, 129 U. PA. L. REV. 777 (1981) (expressing concern over the emphasis on judicial productivity rather than judicial quality).
22. Fiss, Objectivity and Interpretation,34 STAN. L. REV. 739, 755 (1982). 23. Id.; cf. D. EASTON, A FRAMEwORK FOR POLITICAL ANALYSIS 50 (1965) ("what distinguishes political interactions from all other kinds of social interactions is that they are predominantly oriented toward the authoritative allocation of values for a society"); H.LA HART, THE CONCEPT
OF
LAW 25 (1961) ("there must, wherever there is a legal
system, be some persons or body of persons issuing orders backed by threats which are generally obeyed, and it must be generally believed that these threats are likely to be
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but on "the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.
'24
But the
greatest lawyers and judges still endeavor to "see life steadily and see it whole. '25 They still bring the full breadth and depth of their learning and experience to bear upon the issues they 26 must advocate or decide.
Judges today, as in earlier times, may profitably be viewed as readers and composers of texts. As James Boyd White has suggested, "a judicial opinion more or less explicitly reads, criticizes, accepts, and modifies earlier judicial opinions and other sources of the law, and reconstitutes them by giving these items a new order, in a new text.
' 27
For obvious reasons, some judges
are better "readers" than others. Some judges may choose to implemented in the event of disobedience"). But judges "also attempt to achieve intellectual authority, [if] only to supplement a powerful base of authority that they otherwise possess." Fiss, supra note 22, at 755. Intellectual authority is indispensable to judicial review because a court ultimately must depend upon "the willingness of citizens and the other organs of government to implement the judgment." Denenberg, The U.S. Supreme Court: An Introductory Note, 29 CAMBRIDGE L.J. 134, 140 (1971). "The ultimate popular sanction against an unpopular decision is simply to ignore it." Id.; see also Sullivan, Book Review Essay, 29 AM. J. LEGAL HIsT. 349 (1985). 24. Cooper v. Aaron, 358 U.S. 1, 18 (1958); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.) ("It is emphatically the province and duty of the judicial department to say what the law is."); cf. Wisdom, The Frictionmaking,Exacerbating Political Role of Federal Courts, 21 Sw. L.J. 411, 423 (1967) (The federal courts' "function in the body politic is to stand fast at the pressure points where state policies or community customs or the local interests of segments of the people press against national policy."). But see Boman v. Birmingham Transit Co., 292 F.2d 4, 28 (5th Cir. 1961) (Cameron, J., dissenting) ("It is the universal conviction of the people of the conquered provinces also that the judges who function in this circuit should render justice in individual cases against a background of, and as interpreters of, the ethos of the people whose servants they are."). In his Second Reply to Senator Hayne, Webster said: For myself, sir, I do not admit the jurisdiction of South Carolina, or any other State, to prescribe my constitutional duty, or to settle, between me and the people, the validity of laws of Congress, for which I have voted. I decline her umpirage. I have not sworn to support the constitution according to her construction of its clauses. I have not stipulated, by my oath of office or otherwise, to come under any responsibility, except to the people, and those whom they have appointed to pass upon the question whether laws supported by my votes conform to the constitution of the country.
10
CONG. DEB.
78 (1830).
25. E.M. FORSTER, supra note 17, at 269. 26. Indeed, as Kenneth Geller has suggested, "an effective argument convinces the Court that 'the world will be a better place' if counsel's submissions are accepted." Shapiro, Oral Argument in the Supreme Court of the United States, 33 CATH. U.L. REv. 529, 538 (1984) (footnote omitted). 27. White, The Judicial Opinion and the Poem: Ways of Reading, Ways of Life, 82 MICH. L. REv. 1669, 1692 (1984).
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make a greater investment in the process, and some judges may have more to invest. Similarly, some judges may be well-supplied with narrow technical knowledge, while lacking that "panoramic" view which provides both the intellectual confidence needed to place an issue within its broader context and the moral courage needed to stand alone when necessary. Because the judge is a reader of texts in a way that is profoundly creative and "profoundly anti-bureaucratic, 2 8 his opinion is inherently unlike a tallying-up of data which leads ineluctably to a preordained result. It is an exercise in intellectual and moral excellence. Professor White has written: The judge is always a person deciding a case the story of which can be characterized in a rich range of ways; and she is always responsible both for her choice of characterization and for her decision. She is always responsible as a composer for the composition that she makes. One great vice of theory in the law is that it disguises the true power that the judge actually has, which it is her true task to exercise and to justify, under a pretense that the result is compelled by one or another intellectual system. Our way of reading takes aim at those pretenses, and seeks to destroy them, by defining the work of the law as the work of individual minds, for which individuals are themselves 29 responsible. Judge Wisdom's judicial work stands as a sturdy testimonial to the continued importance of liberal learning in adjudication and to the view of adjudication as an exercise in intellectual and moral excellence. During the past twenty-nine years, Judge Wisdom has written well over a thousand opinions. He has written, not only with clarity, elegance, and style, but also with moral courage and intellectual authority, in virtually every area of law
28. Id. at 1686. 29. Id. (emphasis in original). Michael Oakeshott's model is also helpful: [A]djudication is to be recognized as a procedure in which the meaning of lex is significantly, justifiably, appropriately, and durably amplified: significantly, because such a conclusion is not given in lex; justifiably, because the authority of the amplification must be its relation to lex; appropriately, because the conclusion must resolve a specific contingent uncertainty or dispute about the meaning of lex; and durably, because it must be capable of entering the system of lex and becoming available not only to 'judges' to be used in resolving future uncertainties or disputes but also to cives to be used in choosing what they shall do. M. OAKESHorr, ON HUMAN
CONDUCT
133 (1975).
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known to the federal courts.30 Throughout his years on the bench, and, indeed, one supposes, throughout his professional life, Judge Wisdom has combined the highest standards of technical expertise with that panoramic view which is both the hallmark of liberal learning and the source of moral courage in adjudication.31 Above all, perhaps, he has consistently perceived the 30. In the years following the Supreme Court's decision in Brown v. Board of Educ., 347 U.S. 483 (1954), "the judges of the Fifth Circuit were required on a daily basis to confront and resolve questions involving the first principles of our system of government." Sullivan, Book Review, 35 Sw. L.J. 1111 (1982) (footnote omitted). However, the area of civil rights law is only one of many to which Judge Wisdom has contributed in his judicial travels. See, e.g., Texas v. United States, 730 F.2d 339 (5th Cir. 1984) (constitutionality of Staggers Act), cert. denied, 105 S. Ct. 267 (1984); Town of Hallie v. City of Eau Claire, 700 F.2d 376 (7th Cir. 1983) (antitrust), aff'd, 105 S. Ct. 1713 (1985); Great W. United Corp. v. Kidwell, 577 F.2d 1256 (5th Cir. 1978) (constitutionality of Idaho takeover statute), rev'd sub nom. Leroy v. Great W. United Corp., 443 U.S. 173 (1979); Weber v. Kaiser Alum. & Chem. Corp., 563 F.2d 216, 227 (5th Cir. 1977) (Wisdom, J., dissenting) (voluntary affirmative action plan), rev'd sub nom. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979); Greene v. General Foods Corp., 517 F.2d 635 (5th Cir. 1975) (antitrust), cert. denied, 424 U.S. 942 (1976); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975) (Title VII); Woolf v. S.D. Cohn & Co., 515 F.2d 591 (5th Cir. 1975) (securities), vacated mem., 426 U.S. 944 (1976); Copper Liquor, Inc. v. Adolph Coors Co., 506 F.2d 934 (5th Cir. 1975) (antitrust); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974) (right to treatment of civilly committed), vacated, 422 U.S. 563 (1975); Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973) (failure to warn of asbestos dangers), cert. denied, 419 U.S. 869 (1974); Melancon v. McKeithen, 345 F. Supp. 1025 (E.D. La.) (three-judge court) (jury trial in state civil cases), aff'd, 409 U.S. 943 (1972); Cipriano v. City of Houma, 286 F. Supp. 823, 828 (E.D. La. 1968) (three-judge court) (Wisdom, J., dissenting) (franchise-property qualification), rev'd, 395 U.S. 701 (1969); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969) (Title VII---"rightful place"), cert. denied, 397 U.S. 919 (1970); United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified on reh'g, 380 F.2d 385 (5th Cir. 1967) (en banc) (per curiam) (school desegregation), cert. denied, 389 U.S. 840 (1967); Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir.) (Title VI-private right of action), cert. denied, 388 U.S. 911 (1967); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) (jury cross-section), cert. denied, 386 U.S. 991 (1967); Singleton v. Jackson Mun. School Dist., 348 F.2d 729 (5th Cir. 1965) (school desegregation); United States v. Cox, 342 F.2d 167, 185 (5th Cir. 1965) (en banc) (Wisdom, J., concurring) (grand jury-separation of powers), cert. denied, 381 U.S. 935 (1965); United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1963) (desegregation of bus and rail terminals); De Luna v. United States, 308 F.2d 140 (5th Cir. 1962) (self-incrimination); Estate of Weinert v. Commissioner, 294 F.2d 750 (5th Cir. 1961) (tax); Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961) (hearsay); Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959) (admiralty). 31. The uncommon erudition of Judge Wisdom's opinions has been recognized by numerous commentators. See, e.g., J. BAss, UNLIKE-Y HEROES 49-54 (1981); H. COUCH, A HISTORY OF THE FIFTH CIRCUIT, 1891-1981, at 112-13, 170 (1984); F. READ & L. McGOUGH, LET THEM BE JUDGED: THE JuDICIAL INTEGRATION OF THE DEEP SOUTH 57-58 (1978). In Meredith v. Fair, 305 F.2d 343, 344 (5th Cir.), cert. denied, 371 U.S. 828 (1962), for example, Judge Wisdom wrote:
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issues which he has been required to decide, not as isolated or ephemeral concerns, but as manifestations of recurrent themes in the history of our country. Like Burke, he has viewed society-and our Constitution-as "a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. '3 2 As a Southerner, and as a federal judge charged with the historic task of implementing the Supreme Court's decision in Brown v. Board of Ed3 he has looked to history for that wisdom which is ucation," the source of courage. The richness of his opinions is due, not only to the virtuosity of their legal analysis, but also to a profound appreciation and understanding of history. Given the demands made by his time and place, Judge Wisdom could not view the judge's function as that of one who is "merely an analyzer of costs and benefits, or merely a voice of authority, or merely a comparer of one case with another, or merely a policymaker or problem-solver. 3 4 It has been his task to give effect to the Constitution in a hostile environment by teaching understanding and respect for the rule of law. In this sense, he has perceived that history provides enlightenment, that it is one of the main lights by which the liberally educated mind strives to "see life steadily and see it whole." 5 A full review of the record leads the Court inescapably to the conclusion that from the moment the defendants discovered Meredith was a Negro they engaged in a carefully calculated campaign of delay, harassment, and masterly inactivity. It was a defense designed to discourage and to defeat by evasive tactics which would have been a credit to Quintus Fabius Maximus. Similarly, when Edgar Labat's constitutional challenge to the grand and petit juries which had indicted and convicted him of aggravated rape in 1952 and 1953, respectively, finally reached the Fifth Circuit in 1966, Judge Wisdom commenced his opinion with a particularly apt quotation from Shakespeare: "'The law hath not been dead, though it hath slept.'" Labat v. Bennett, 365 F.2d 698, 701 (5th Cir. 1966) (quoting W. Shakespeare, Measure for Measure, act II, sc. 2). 32. E. BURKE, REFLECTIONS ON THE REvOLUTION IN FRANCE-110 (T. Mahoney ed. 1955). 33. 347 U.S. 483 (1954). 34. White, supra note 27, at 1686; see also Wisdom, Book Review, 14 COLUM. Hum RTs.L. REV. 175 (1982); Wisdom, Random Remarks on the Role of Social Sciences in the Judicial Decision-Making Process in School Segregation Cases, 39 LAw & CoNTamP. PROBS. 134, 138 (1975) (footnote omitted) ("Still, I have a deep conviction that the moral philosophy underlying the principle of equality established in the [Civil War Amendments] . . .is the primary source of hope for civilized race relations in an integrated society."). 35. E.M. FORSTER,supra note 17, at 269. History "is neither prologue on the one hand, nor director of the drama on the other; rather, history is a spotlight, always available to illumine, but not to blind. History does not provide the answers to the problems of
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This Essay will examine Judge Wisdom's use of history by considering two opinions illustrating two distinct uses that the liberally educated mind may make of history. The first opinion, which will be discussed under the general heading "The Judge and History," is Judge Wisdom's opinion for the majority in United States v. Louisiana.6 In that case, Judge Wisdom wrote for a three-judge district court which struck down certain provisions of Louisiana law that granted voter registrars an absolute discretion, not only to determine whether applicants "understood" the state and federal constitutions, but also to grant or deny registration on that basis. In his opinion, Judge Wisdom surveyed the various means which had been used in Louisiana to disenfranchise free blacks for almost 250 years. Historical research provides the stone and mortar from which Judge Wisdom's opinion is crafted. History provides the "facts" upon which the judgment of unconstitutionality is premised. The second opinion, which will be considered under the heading "The Judge in History," is Judge Wisdom's dissenting opinion in United States v. Barnett.3 7 In this opinion, Judge Wisdom's use of history is more subtle. In Barnett, the Fifth Circuit dismissed the criminal contempt charges which had been entered against Ross Barnett, the Governor of Mississippi, and Lieutenant Governor Paul Johnson, based on their efforts to subvert enforcement of the court's mandate requiring the admission of James Meredith to the University of Mississippi. The central issues were the supremacy of federal law and the role of the federal courts in interpreting federal law. Governor Barnett took the position that he was entitled, as Governor of Mississippi, to interpret the Constitution and interpose himself between the federal courts and the University of Mississippi.
today; it merely helps to frame the questions." Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation,31 U. CH. L. REv. 502, 533 (1964); see also J. POLE, PATHS TO THE AMERICAN PAST 250-70 (1979); Richards, Interpretationand Historiography,56 S. CAL. L. REV. 489, 512-13 (1985); Levi, supra note 18, at 408 ("The analysis of jurisprudence which makes much of the difference between the is and the ought does not seem to me to be helpful at this point. A judicial system which makes this distinction and eschews the ought will have lost both the spirit and symbol of justice. In effect it will have made the was the is.") (emphasis in original). 36. 225 F. Supp. 353 (E.D. La. 1963) (three-judge court), aft'd, 380 U.S. 145 (1965); cf. United States v. Mississippi, 229 F. Supp. 925 (S.D. Miss. 1964) (three-judge court) (holding contrary to United States v. Louisiana), rev'd, 380 U.S. 128 (1965). 37. 346 F.2d 99 (5th Cir. 1965) (en banc).
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Judge Wisdom's dissenting opinion does not belabor the history of the nineteenth century struggle for federal supremacy, nor does it consider in any detail the claims of the nullification and interposition doctrines. However, it is Judge Wisdom's informed opposition to Governor Barnett's attempted resuscitation of those doctrines which provides the energy and the rationale of the dissent. In Barnett, Judge Wisdom's use of history is less like stone and mortar; it is more akin to scaffolding, which "comes down when the job's done/Showing off walls of sure and solid stone."38 In each of these two cases, Judge Wisdom's use of history takes a different shape. In both of them, however, history provides enlightenment and supplies the life force of the opinion. In both of them, Judge Wisdom's understanding of the past serves an important rhetorical purpose: facilitating his explanation of our constitutional system of government, an explanation which is addressed not only to the legal community, but also to the wider audience of informed citizens to whom he wishes to speak. II.
THE JUDGE AND HISTORY
In 1963, the United States challenged the validity of a Louisiana state constitutional provision which required that an applicant for voter registration "be able to understand and give a reasonable interpretation of any section of [the Louisiana or United States] Constitution[s] when read to him by the registrar." 9 In an action filed in the United States District Court for the Eastern District of Louisiana, the United States alleged that this state constitutional provision and its statutory counterpart 0 violated the Civil Rights Act of 1870,41 as well as the fourteenth and fifteenth amendments.4 2 Named as defendants were the State of Louisiana and the directors and members of the Louisiana Board of Registration. A three-judge district court was convened, consisting of Judge Wisdom, Judge Christenberry, and Judge West. By a divided vote, the court held that the "interpretation test" created by these provisions was a "sophisticated
38. 39. 40. 41. 42.
S.
HEANEY, Scaffolding, in DEATH OF A NATURALIST 50 (1966). LA. CONST. of 1921, art. VIII, § 1(d) (as amended in 1960) (emphasis added). LA. REv.STAT. § 18:35 (1950) (repealed 1972). 42 U.S.C. § 1971 (1982). U.S. CONsT. amend. XIV-XV.
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scheme to disfranchise Negroes," which was "unconstitutional as '43 written and as administered.
Writing for himself and Judge Christenberry, Judge Wisdom wasted no time in stating the majority's conclusion. He commenced his opinion, not with a summary of the facts, nor with a recitation of the arguments for either side, but with the trenchant observation that "[a] wall stands in Louisiana between registered voters and unregistered, eligible Negro voters." 44 This wall-the interpretation test-"is not the only wall of its kind, but since the Supreme Court's demolishment of the white primary, [it] has been the highest, best-guarded, most ef'45 fective barrier to Negro voting in Louisiana.
Judge Wisdom then lets the reader draw his own conclusions about the fairness of the interpretation test by setting out, virtually without comment of his own, two of the 443 sections of the Louisiana Constitution upon which an applicant might be tested. 46 The message is unstated, but clear: an exegesis of these provisions would tax the ability 4 of even a trained lawyer. The
reader already has been persuaded that the interpretation test is inherently susceptible to administrative abuse and arbitrary application when he reaches Judge Wisdom's terse commentary: "In giving this test, the registrar selects the constitutional section and he must be satisfied with the explanation. In many parishes the registrar is not easily satisfied with constitutional interpretations from Negro applicants.
47
Lest there be any doubt about the result in the case, the introduction concludes by stating the court's holding: 43. 44. 45. 46.
United States v. Louisiana, 225 F. Supp. at 356. Id. at 355. Id. Id. at 356. Judge Wisdom wrote: When a citizen of Louisiana seeks to register, the Parish Registrar of Voters may ask the applicant to interpret the provision, "The Supreme Court and the Court of Appeal, and each of the judges * * may also in aid of their respective jurisdictions, original, appellate, or supervisory, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs." [LA. CONST. OF 1921, art. VII, § 2.] Or the registrar may ask the applicant to interpret a less technical but more difficult provision, constitutionally, such as, "Every person has the natural right to worship God according to the dictates of his own conscience." [LA. CONST. OF 1921, art. I, § 4.] Id. 225 F. Supp. at 356 (footnote omitted). 47. Id.
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We hold: this wall, built to bar Negroes from access to the franchise, must come down. The understanding clause or interpretation test is not a literacy requirement. It has no rational relation to measuring the ability of an elector to read and write. It is a test of an elector's ability to interpret the Louisiana and United States Constitutions. Considering this law in its historical setting and considering too the actual operation and inescapable effect of the law, it is evident that the test is a sophisticated scheme to disenfranchise Negroes. The test is unconstitutional as written and as administered.""
In three short paragraphs, the introduction establishes both the credibility of the court and the tone of the opinion. The opinion, we are led to believe, will be sharply focused; it will provide a hard look at the reality of the circumstances, giving no quarter to diversionary tactics or peripheral concerns; and it will move forward forcefully and inexorably to demonstrate the logical inevitability of the conclusion which already has been announced. The structure and content of the introduction convey the gravity of the circumstances, the paramount importance of the rights at issue, and the manifest need for decisive judicial action.4 9
The opinion itself may be divided into three parts. 0 In the first part of the opinion, Judge Wisdom describes the interpretation test, discusses the relevant federal constitutional and statutory provisions, establishes that the United States has standing to bring the action, and articulates the general legal principles against which the interpretation test must be analyzed.5 1 The central problem, of course, was that Louisiana had gone to great
48. Id. (emphasis in original). 49. The "exclusion [of blacks from the franchise] not only prevented blacks from participating in the decision whether segregation should be enforced by law, but it also deprived them of the political power necessary to assure the actual equality of whatever separate facilities might be provided for them." Sullivan, supra note 30, at 1112 (footnote omitted). In Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), the Supreme Court stated that "the political franchise of voting is. . . a fundamental political right, because preservative of all rights." Chief Justice Warren reportedly suggested, perhaps with undue optimism, that the Supreme Court's decision in Brown v. Board of Educ., 347 U.S. 483 (1954), would have been unnecessary if Reynolds v. Sims, 377 U.S. 533 (1964), had been decided first. See Ely, The Chief, 88 HARv. L. REv. 11, 12 (1974); see also J. POLE, supra note 35, at 41-54 (discussing the early history of majority rule in America). 50. The first part of the opinion comprises sections I through In. The second part comprises sections IV through VI. The final part comprises sections VII through IX. 51. United States v. Louisiana, 225 F. Supp. at 356-63.
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lengths to make the interpretation test appear neutral on its face. As a matter of logic, the test could not be deemed discriminatory on its face because, at least superficially, it treated all voter applicants in the same manner, without regard to race. Insofar as the facial validity of the interpretation test was concerned, the analysis would have to focus on the wholly unstructured and unbridled discretion accorded registrars in determining whether to give the test, to whom the test should be given, what questions should be asked, and what answers should be deemed acceptable.52 As Judge Wisdom noted, however, "[t]o Louisianians familiar with the history of their state, it must seem an exercise in futility for the Court to labor the proof of '' 53 the true reason for the understanding or interpretation test. If the heart of the matter were to be laid bare, the court would have to look beyond superficial appearances. To determine whether the interpretation test was a vehicle for discrimination, it would be necessary to examine the "history," "present setting," "legislative purpose," and "inevitable effect" of the test.5 4 In this way, Judge Wisdom concluded, the court would give effect to the Constitution, whith "'nullifies sophisticated as well as simple-minded modes of discrimination [and] hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.' 55 Having established the framework for analysis, Judge Wisdom moved on to the centerpiece of his opinion: the history and present application of the interpretation test. "To obtain some necessary pages of history, more valuable than volumes of logic, as Holmes has said, we sacrifice brevity. ' 56 To obtain these "necessary pages of history," Judge Wisdom drew upon Louisiana constitutional provisions and statutory materials dating from 1724; census and voter registration reports, beginning with the census of 1810; empirical studies by political scientists; the proceedings of various state constitutional conventions held in Louisiana and other Southern states between 1864 and 1921; nineteenth century newspapers; and Southern histories published 52. 53. 54. 55. 56.
Id. Id. Id. Id. Id.
at at at at
381-84. 361. 362-63. 363 (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939) (Frankfurter, J.)).
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between 1900 and 1961, the latter date marking the publication 57 of Professor Woodward's The Burden of Southern History. Because it was necessary to view the interpretation test as part of "the State's historic policy and the dominant white citizens' firm determination to maintain white supremacy in state 5' 8 and local government by denying to Negroes the right to vote, it was necessary to begin at the beginning. In the beginning, as Judge Wisdom aptly noted, "[t]here was, of course, no problem."' 59 There was "no problem" because "the Codes Noir, from the 1724 Code to Act 33 of the Territorial Legislature of 1806, disfranchised Negroes."60 Surveying the constitutional developments embodied in the Louisiana Constitutions of 1812, 1845, and 1852, Judge Wisdom noted, with obvious pride in the history of his state, that the latter two were "progressive and broadly democratic document[s]."' The Constitution of 1845 "did away with the tax-paying qualification for voters and established universal suffrage for free white males, regardless of wealth and literacy. 6 2 The Constitution of 1852 "introduced registration of voters, a progressive step many years in advance of most states. ' 6 Despite the presence in Louisiana of many free blacks, however, the franchise continued to be limited to white males: Thus, from the Code Noir of 1724 until 1864, the organic law of the state ordained that only free white males could vote or hold office. This was in a state where there were thousands of free men of color. Many of these were well educated and owned slaves. Except for suffrage, they possessed the civil and legal 64 rights of white citizens.
57. C. WOODWARD, THE BURDEN OF SOUTHERN HISTORY (1961). 58. United States v. Louisiana, 225 F. Supp. at 363. 59. Id. 60. Id. 61. Id. 62. Id. 63. Id. 64. Id. In a footnote based on census figures and other primary sources, Judge Wisdom noted that the population of New Orleans in 1810 consisted of 8,001 white persons, 5,727 "free persons of color," and 10,824 slaves; that a battalion of free blacks fought at the Battle of New Orleans; and that, by 1860, free blacks in Louisiana owned real property and slaves valued at $50 million. Id. at 363-64 n.9. "Historically, therefore, color and not education or anything else has always been determinative of a voter's qualifications in Louisiana." Id.; see generally J. BLASSINGAmE, BLACK NEW ORLEANS: 1860-1880 (1973).
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The Constitutional Convention of 1864, which was held during the federal occupation of New Orleans, retained the previous limitation of suffrage to white males.6 5 In 1865, the Free State Party "gained control of the legislature, mainly by opposing Negro suffrage, "66 and the legislature and police juries (or county commissioners) "promptly enacted new Black Codes which reduced the Negro to a 'condition. . . between peonage and serfdom.' ",67 These developments led to military reconstruction and the Constitutional Convention of 1868, the latter being convened for the express purpose of "meeting the conditions Congress imposed on the former States of the Confederacy: suffrage regardless of race and ratification of the Fourteenth Amendment."6 8 With the president and half the delegates being black, the Convention of 1868 finally gave blacks the right to vote and hold office, but it also "pour[ed] salt on open wounds" by creating barriers to white voters that were more formidable than those enacted in any other Southern state.6 9 As Judge Wisdom noted: The Constitution of 1868 desegregated the schools, adopted the bill of rights, rejected a literacy test, and prohibited discrimination in public conveyances and places of public accomodation. This was all "that was needed to strengthen the determination of Southern whites to establish white supremacy, at whatever cost. The Constitution of 1868, therefore, instead of closing the0 breach between whites and blacks, served only to 7 widen it."
65. 225 F. Supp. at 364. Although the Constitution of 1864 "abolished slavery and provided for free public schools for all children between six and eighteen years, [it] retained the previous limitation of suffrage to white males." Id. Later, without amending the suffrage ordinance (which restricted the vote to white males), the Convention adopted a resolution authorizing the legislature" 'to pass laws extending suffrage to such other persons, citizens of the United States, as by military service, by taxation to support the Government, or by intellectual fitness, may be deemed entitled thereto.'" Id. (footnote omitted). Although blacks were not specifically mentioned in the resolution, "a number of delegates denounced it as a 'nigger resolution,' and at least one delegate stalked out of the Convention in protest against Negroes being allowed to vote." Id. (footnote omitted). The situation was not helped by demographics: "The Constitution of 1864 required the registration of all voters in the State. In 1867 the State Board of Registration, making its first report, showed 45,189 white and 84,527 Negro registrants." Id. (emphasis in original). 66. Id. at 365 (footnote omitted). 67. Id. (footnote omitted). 68. Id. 69. Id. at 365-66 & n.21; see also J. FaN-KLIN, RECONSTRUCTION: AMPR THE CivIM WAR 104-26 (1961) (surveying southern constitutional conventions during 1867-1868). 70. 225 F. Supp. at 366 (footnoted omitted).
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By 1879, the state had been "freed from carpetbag govern' ment"7 1 and was "firmly in the control of the White League. 72 A new Constitution was adopted, which made no attempt to restrict the suffrage to white males. Instead, "[t]he solution for the Negro problem. . . was to transfer power to the Governor from the legislature and the police juries."7 3 The solution, however, was short-lived. By 1888, the number of black voters surpassed the number of white voters, and the gubernatorial elections of 1892 and 1896 were decided by black voters.74 "At this point, the handwriting on the wall could be read as easily in Louisiana as it was read earlier in Mississippi: something had to be done about 7' 5 Negro Suffrage. When a new Constitutional Convention was convened in February 1898, its mandate was clear and openly proclaimed: "'to disfranchise as many Negroes and as few whites as possible.' ,,76 The understanding test already had been invented in Mississippi, but the Louisiana Convention rejected it, both as an essentially dishonest solution to the problem of Negro suffrage and as one that would place too much power in the hands of the registrar of voters.7 7 Instead, the Convention adopted the solution which became known as the "grandfather clause." Under the grandfather clause, a potential voter was required to satisfy certain educational and property qualifications unless he, his father, or his grandfather had been entitled to vote on or before January 1, 1867, or unless the potential voter had immigrated to the United States since that date.7 8 The grandfather clause was widely assailed by eminent Louisianians even when it was adopted. As Judge Wisdom noted, many Louisiana lawyers-and both United States Senators from Louisiana-expressed the view that the grandfather clause was unconstitutional.7 9 For ex71. Id. at 368. The years from 1864 through 1877 were years of great turbulence in Louisiana, marked by rival governments, black and white secret societies, and armed battles. Id. at 367-68. 72. Id. at 369; see generally C. WOODwARD, REUNION AND REACTION: THE CompROMISE OF 1877 AND THE END OF RECONSTRUCTION (1951). 73. 225 F. Supp. at 369 (footnote omitted). 74. Id. at 369-70. In 1888, the registration lists showed 127,923 black voters and 126,884 white voters. Id. at 369. 75. Id. at 370. 76. Id. at 371 (citation omitted). 77. Id. at 371-72 & nn.45-46. 78. Id. at 373. 79. Id. at 372 n.46.
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ample, Judge A.V. Coco, a delegate from Avoyelles, called the grandfather clause a" 'weak and transparent subterfuge and unmanly evasion of the Constitution of the United States.' 118o At all events, it worked. "The result," as Judge Wisdom noted, "was disfranchisement of almost all of the Negro voters and of some twenty to thirty thousand white voters.""" When the new Constitution was submitted to the legislature, Governor Foster stated that" '[t]he white supremacy for which we have so long struggled at the cost of so much precious blood and treasure, is now crystallized into the Constitution as a fundamental part and parcel of that organic instrument.' ,182 The new constitution was not submitted to the voters, and, to make disenfranchisement effective, the legislature directed a complete reregistration of voters. From 1897 to 1910, the number of black registered voters dropped from more than 130,000 to 730.3 The "problem" was therefore solved until 1915, when a unanimous United States Supreme Court, speaking through Chief Justice Edward Douglass White of Louisiana, declared that the Oklahoma grandfather clause was unconstitutional. 4 A new solution to the "problem" was therefore required, and a Constitutional Convention was called for that purpose in 1921. Meeting in secret, the Convention's Committee on Suffrage and Elections recommended that the Convention adopt the interpretation test. Thus, the solution "finally agreed upon was the plan rejected in 1898 because of its 'immorality'-Mississippi's understanding clause, the interpretation test. 8 5 To put teeth into the interpretation test, the Constitution of 1921 also gave an ex officio board of registration the power to remove, at will, any local registrar who might "'show a tendency to administer the new registration tests too liberally.',, During the next thirty years, however, "the interpretation test was rarely, if ever applied. 81 7 As Judge Wisdom succinctly
80. 81. 82. 83. 84. 85. 86. 87.
Id. (citation omitted). Id. at 373 (footnote omitted). Id. at 374 (citation omitted). Id. Guinn v. United States, 238 U.S. 347 (1915) (White, C.J.). United States v. Louisiana, 225 F. Supp. at 376. Id. (footnote omitted). Id. at 377.
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stated: "It was not needed." S8 The Democratic white primary "not only effectively kept Negroes from voting in the only election that had any significance in the Louisiana electoral process but it also correspondingly depressed Negro registration to insignificantly low numbers.""9 In 1944, the year the United States Supreme Court declared the white primary to be unconstitutional, 90 the number of black registered voters was 1,029.91 By 1956, this number had risen to 161,410.92 Judge Wisdom noted: The decline and fall of the white primary, the return of Negro soldiers from World War II, the intensified tempo of activity in Negro organizations after the School Segregation Cases in 1954, and the civil rights explosion all worked toward increasing Negro interest in voting. These and correlative factors made it imperative for parish registrars in Louisiana to utilize the interpretation test, if the State intended to maintain its policy of segregation, historically indissolubly bound with disfranchisement of Negroes.9 3 The final chapter was written shortly after the Supreme 9 4 when the Court's decision in Brown v. Board of Education, Louisiana Legislature established the Joint Legislative Committee (later known as the "Segregation Committee"), whose aim was "'to maintain segregation of the races in all phases of our life in accordance with the customs, traditions, and laws of our State.' "91 At about the same time, a number of individuals, including Senator William M. Rainach, the chairman of the Segregation Committee, and William M. Shaw, its counsel, organized the Association of Citizens Councils of Louisiana, the purpose of which was to "'protect and preserve by all legal means, our historical Southern Social Institutions in all of their aspects.' "96 Together, these two groups breathed new life into the interpretation test. 88. Id. 89. Id. 90. Smith v. Allwright, 321 U.S. 649 (1944); see also J. POLE, THE PURSUIT OF EQUALITY IN AMERICAN HISTORY 277-79 (1978) (recounting the course of Supreme Court decisions between Guinn v. United States (striking down the grandfather clause) and Smith v. Allwright (striking down the white primary)). 91. 225 F. Supp. at 377. 92. Id. 93. Id. at 377-78. 94. 347 U.S. 483 (1954). 95. United States v. Louisiana, 225 F. Supp. at 378 (footnote and citation omitted). 96. Id. (footnote and citation omitted).
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In 1956, the Association published a pamphlet entitled "Voter Qualification Laws in Louisiana-The Key to Victory in the Segregation Struggle," and subtitled "A Manual of Procedure for Registrars of Voters, Police Jurors and Citizens' Coun97 cils."1 The pamphlet, which advocated a two-step approach-the purging of "illegally" registered voters, followed by strict enforcement of the interpretation test-was distributed by the State to parish registrars, with instructions that they should "follow closely its purpose and intent."9' 8 From 1956 through 1958, extensive purges-principally of black voters-were conducted in eight parishes in various parts of Louisiana. These purges required care, so that white voters would not be disenfranchised: One registrar said in her deposition that in her parish the Citizen Council members conducting the purges corrected the errors . . . on their own registration applications while at the same time challenging Negroes for similar mistakes. Many purges were for failure to take the interpretation test, even though that test had not been administered at the time of the registrant'sapplication." In late 1958 and early 1959, the Segregation Committee and the State Board of Registration held a series of meetings in each congressional district, and the attendance of registrars was required. 10 0 Registrars were told that they had become 'the focal point of the solution to our problems;'" they were given a set of twenty-five test cards and were told to use them if they could not "'fail [Negro applicants] any other way."' 10 1 Mr. Shaw told the registrars that "'[c]onstitutional tests are a test of native intelligence and not "book learning". Experience teaches that most of our own white people have this native intelligence while most Negroes do not.' ,,1o2 At last, Judge Wisdom summed up "these necessary pages of history": The Louisiana Codes Noir of Colonial times and the Black 97. 98. 99. 100. 101. 102.
Id. Id. Id. at 379 (emphasis in original). Id. Id. at 380 (citation omitted). Id. (citation omitted).
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Codes of the eighteen sixties; the pre-Civil War denial of the vote to Negroes, even to wealthy and educated free men of color; the ebb and flow of Negro rights in the Constitutions of 1864 and 1868; the 1879 transfer of political power from police juries and the legislature to the Governor; the close election of 1892 and the 1896 victory for white supremacy; the grandfather clause and the complicated registration application form in the Constitution of 1898; the invalidity of the grandfather clause and the consequent resort to Mississippi's understanding and interpretation clause; the effectiveness of the white primary as a means of disfranchising Negroes; the invalidity of the white primary and the consequent need to revive enforcement of the interpretation test; the White League and the Citizens' Councils; the Black League and the N.A.A.C.P.; the Battle of Liberty Place in 1874 and the Ouachita voting purge of 1956-these are all related members of a series, all reactions to the same dynamics that produced the interpretation test and speak eloquently of its purpose. In sum, the interpretation test is another grandfather clause. Its purpose is rooted in the same history. It has the same objective the delegates to the Constitutional Convention of 1898 envisaged for the grandfather clause. It is capable of producing the same effective disfranchisement of Negroes today that the grandfather clause produced sixty-five years 3 ago.10 Having described the historical evolution of the interpretation test and its antecedents, Judge Wisdom turned his attention to the manner in which the interpretation test was then being deployed. First, Judge Wisdom noted that registrars were not required to use the test, that the majority of voters then registered in Louisiana had never taken the test, that the test had not been used in any parish before November 1954, and that the test had since been used in twenty-one parishes (in conjunction with purges of black voters) to reduce the number of black registered voters in those parishes from 25,361 to 10,351 between late 1955 and August 1962.104 Second, it was unclear whether state officials took the position that applicants actually had to interpret the Constitution (or only had to "have the ability" to do so), and "[t]he registrar's whim alone determine[d]
103. Id. at 380-81. 104. Id. at 381.
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which applicants [would] be tested."'1 5 Third, the Louisiana Constitution contains 443 sections (as opposed to the 56 sections of the federal constitution) and "the evidence clearly demonstrate[d] great abuses in the selection of sections . . to be interpreted."' 106 Fourth, "gross abuses of discretion appear[ed] in the [registrars'] evaluation of the interpretations," most of which were given orally, "thus precluding the use of written records as a check on what the registrar accepted as reasonable interpretations."' 10 7 In addition to being given easier questions (if any at all were given), "[t]here [was] unmistakable evidence that many white applicants were shown cards with sample answers on them."' 1 8 In some cases, where written records were kept, white applicants were allowed to register, while black applicants who had given demonstrably superior answers were denied registration. 0 9 Judge Wisdom then evaluated the interpretation test in light of applicable legal principles, concluding that the test had no "rational relation with the proper governmental objective of giving the vote only to qualified persons."" 0 Judge Wisdom wrote: Short of a government of philosopher-kings,--and no one has ever described Louisiana government in such terms-there is just no correlation between an ability to interpret any section of the Louisiana Constitution a registrar may thrust at an applicant for registration and a legitimate State interest in an informed electorate."' As Judge Wisdom concluded: "The ugly intractable truth is, the nexus is with unlawful discrimination. The ineradicable vice vitiating any relation to a legitimate governmental objective is the raw power vested in the registrar."1 2 Given the lack of any constitutional or statutory standard for determining the adequacy of an applicant's understanding of the constitutional provision 105. Id. at 382. In view of the official confusion surrounding the correct interpretation of the interpretation test, Judge Wisdom stated: "Pity the applicant asked to interpret the interpretation test!" Id. 106. Id. 107. Id. at 383. 108. Id. 109. Id. at 384. 110. Id. at 386. 111. Id. (emphasis in original). 112. Id.
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which he had been asked to interpret, "the net result [was] full latitude for calculated, purposeful discrimination and even for unthinking, purposeless discrimination."' 113 Summing up with respect to the facial invalidity of the interpretation test provisions, Judge Wisdom wrote: Each registrar in Louisiana is the sole judge of whether to apply the interpretation test or not to apply it and whether an applicant qualifies. The judgment is made without guidance, without standards, without limitations imposed by law; the judgment is necessarily subjective. Thus the right to vote depends more upon the caprice of the registrar than upon the possession of measurable qualifications." 4 Drawing once more upon historical materials, Judge Wisdom quoted at length from the analysis of the interpretation test offered in 1899 by Thomas J. Kernan, a distinguished Louisiana lawyer and a delegate to the Constitutional Convention of 1898, which had declined to adopt the test. Kernan said: "'This arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review; and he can enfranchise or disfranchise voters at his own sweet will and pleasure without let or hindrance.'" In the third and final section of the opinion, the majority first enjoined enforcement of the interpretation test" 6 and then considered the "objective test of citizenship," "17 which the Louisiana legislature had authorized the Board of Registrars to formulate in 1962. This "objective test" was "apparently tailored to fit this case should the interpretation test be held unconstitutional,"' " 8 notwithstanding the fact that the Louisiana constitutional and statutory provisions "setting out the interpretation test as a requirement for voter registration remain unchanged." 119 The majority did not reach the question whether the new test was itself unconstitutional, but enjoined enforcement of it in those parishes which had utilized the interpreta113. Id. at 387. 114. Id. at 390. 115. Id. at 391 (emphasis omitted) (quoting Kernan, The Constitutional Convention of 1898 and its Work, 1899 PRoc. OF LA. BAR Ass'N 54, 59). 116. Id. at 392. 117. Id. 118. Id. 119. Id. at 392 n.90.
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tion test, unless implementation of the new test were accompanied by re-registration, so as to preclude "the State [from] 1 20 seal[ing] into permanent existence the injustices of the past. In this instance, the majority found authority for its injunction in Yick Wo v. Hopkins,21 where the Supreme Court held that "[t]he validity of [an] ordinance requiring a license for a laundry operated in a wooden building could be asserted only after'1 22 a relicensing of all laundries on a nondiscriminatory basis. Judge Wisdom stated: "In short, the obligation of the State to abolish its system of racial discrimination in voting registration is not met simply by a process of applying new and higher stan123 dards to all future applicants. Judge West dissented, but he did not file an opinion until more than a month after the majority opinion had been filed; the majority opinion could, therefore, offer no rebuttal to the points made by Judge West. At the outset, Judge West quarrelled with Judge Wisdom's historical research, not as to its accuracy, but as to its materiality: The majority opinion, including footnotes, comprises some 93 mimeographed pages, most of which is completely immaterial to a decision of this case. When the majority of the Court finds that the constitutional interpretation test is "per se invalid," there is, of course, no reason to delve into the past history and usage of the test.124 In addition, Judge West noted: The majority opinion is so lengthy, and involves so many extra-judicial discourses, that it is rather difficult to determine whether it holds that the State constitutional provision and the State Statute establishing the constitutional interpretation test are unconstitutional in themselves, or whether it holds merely that these State laws have been unconstitutionally administered. 2 5 Judge West had the advantage of the last word, but gained little benefit from it. The fact was, of course, as the majority 120. Id. at 393.
121. 118 U.S. 356 (1886). 122. 123. 124. 125.
United States v. Louisiana, 225 F. Supp. at 396. Id. Id. at 398 (West, J., dissenting). Id. at 399-400.
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specifically held, that the interpretation test was unconstitutional both "as written and as administered."12' 6 Moreover, the force of Judge West's opinion was necessarily limited by his view that the states should not be subject to any federal interference in determining who, among their citizens, should be afforded the "privilege" of voting. 127 Thus, Judge West perceived no need to rebut Judge Wisdom's assertion that the interpretation test was per se unconstitutional because it provided registrars with unprincipled, "raw power" to determine who should be allowed to register. In addition, Judge West refused to meet on its own terms the majority's contention that, absent re-registration, enforcement of the "citizenship test" should be enjoined, as a matter of equity, in those parishes in which the interpretation test had been deployed. Judge West simply asserted that the test itself had not been held to be unconstitutional, and that it could not therefore be enjoined on the ground that it constituted a more stringent test designed to perpetuate the effects of past discrimination and thus maintain the unconstitutionally 128 achieved dilution in black voting power. Apart from the questionable nature of Judge West's constitutional analysis, there is an obvious and compelling difference between the views expressed in the majority and dissenting opinions. Judge West's analysis-except for the rhetorical flourish embodied in his parting observation that Reconstruction (presumably like the view of federalism embodied in the majority opinion) "'was fomented in no small part, by well-intentioned men in too much of a hurry' "129-is profoundly ahistorical. There is some superficial appeal, of course, to Judge West's observation that Judge Wisdom's historical analysis was unnecessary to the result in the case, once the majority had concluded that the interpretation clause was facially invalid because of the unbridled discretion which it granted to registrars of voters. For at least three separate reasons, however, the majority was justified in declining to premise the judgment solely on that ground.
126. Id. at 356. 127. Id. at 399. 128. Id. at 401-03. 129. Id. at 403 (quoting Sharp v. Lucky, 252 F.2d 910, 924 (5th Cir. 1958) (Cameron, J., dissenting)).
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First, there was no real reason to decline to reach the "unconstitutional as applied" issue, which required Judge Wisdom's historical analysis. Indeed, there was a good reason to reach that issue, namely, the possibility that the Supreme Court might conclude that the interpretation test was not unconstitutional on its face-a result which might well have protracted the litigation by requiring an unnecessary remand if the lower court initially had reserved judgment on the second ground. Second, it would have been difficult to reach the "citizenship test" issue, which was essential to the framing of an effective equitable decree, if the court had not considered the entire historical background. Third, and perhaps most important, the historical discussion was essential, not just in terms of the majority's legal analysis, but also in terms of the majority's effort to justify its decree to those who would be bound and affected by it. Judge Wisdom stated that "[t]o Louisianians familiar with the history of their state, it must seem an exercise in futility for the Court to labor the proof of the true reason for the understanding or interpretation test." 130 But Judge Wisdom was not writing solely for "Louisianians familiar with the history of their state." Judge Wisdom was writing for fair-minded Louisianians who were not familiar with the history of their state, but who might well be persuaded by that history. From that perspective, substantial importance must be accorded to the voice of Judge Wisdom's opinion. Above all, Judge Wisdom writes as a Louisianian proud of the history of his state. He points with pride, for instance, to the progressive features of the Constitutions of 1845 and 1852, which were, in some respects, "many years in advance of most states." 311 He does not shirk from recognizing the excesses of Reconstruction, when the disenfranchisement of white voters "pour[ed] salt on open wounds," 132 nor does he regret the "free[ing]" of Louisiana "from carpetbag government." 3 Most important, of course, is his treatment of the genesis of the grandfather clause and the interpretation test. With respect to the proponents of those measures, he could not have been fairer. With respect to their purposes, he quotes the debates of the various constitutional 130. 131. 132. 133.
Id. Id. Id. Id.
at 361. at 363. at 366. at 368.
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conventions; he lets the proponents draw up their own indictments. But Louisianians should not forget that there was a wellstaffed losing side in those debates. To condemn the grandfather clause and the interpretation test is not to condemn Louisiana or its history. Many respected Louisianians stood with Judge Coco in 1898, when he pronounced the grandfather clause to be a "'weak and transparent subterfuge and unmanly evasion of the Constitution of the United States.' ,,.14 Although the interpretation test that had been widely attacked in the Convention of 1898 finally was embraced in the secret proceedings of the Constitutional Convention of 1921, many Louisianians had not changed their minds. 13 5 In sum, a primary purpose of Judge Wisdom's historical account was to provide an alternative history of Louisiana, one that would allow fair-minded Louisianians to justify compliance with the court's decree in terms of the history of their state.
III.
THE JUDGE IN HISTORY
In United States v. Louisiana, Judge Wisdom's historical research provided both the background against which the constitutionality of the interpretation test was to be determined and the factual evidence upon which the judgment of unconstitutionality, as applied, was to be based. In that case, the historical record provided the stone and mortar of the majority opinion. A different and more subtle use of history is evident in Judge Wisdom's dissent in United States v. Barnett.3 6 In this case, Judge Wisdom's historical understanding provides the scaffolding used to construct the opinion, essential to the building, but "com[ing] down when the job's done. 1 37 In Barnett,Judge Wisdom writes, not of history, but in history. The dissent might well be called "Judge Wisdom's Reply to Senator Hayne." The Barnett opinions which will be considered here are those which constitute the final chapter in the litigation surrounding the matriculation of James Meredith at the University of Mississippi.13 8 By May 1965, when these opinions were writ134. Id. at 372 n.46 (citation omitted). 135. Id. at 375-76. 136. 346 F.2d 99 (5th Cir. 1965) (en banc). 137. S. HEANEY, supra note 38. 138. See United States v. Barnett, 330 F.2d 369 (5th Cir.) (en banc) (certifying question whether Governor Barnett and Lieutenant Governor Paul Johnson were consti-
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ten, Meredith had taken his place at the University with the assistance of federal marshals, who were reinforced by federal troops. 13 9 Along the way, the Fifth Circuit had found it necessary to enter judgments of civil contempt against Ross Barnett, the Governor of Mississippi, and Lieutenant Governor Paul Johnson, for their actions in personally obstructing enforcement of the court's injunction commanding Meredith's enrollment. The court also had instructed the Attorney General of the United States to prepare criminal contempt charges against Governor Barnett and Lieutenant Governor Johnson, which led to a Supreme Court decision holding that they were not constitutionally entitled to trial by jury on the charges of criminal contempt.140 When the case was taken up again by the Fifth Circuit, following the Supreme Court's decision on the jury trial issue, James Meredith had long before been admitted to the University of Mississippi, despite the persistent, recalcitrant, contrary efforts of Governor Barnett. Although the court's mandate ultimately had been enforced, the question remained as to what should be done with respect to Governor Barnett, whose defiance of the court's orders had been tenacious and notorious. A majority of the court-Judges Rives, Jones, Gewin, and Bell-thought that nothing should be done. The majority held that the judgment of civil contempt should be allowed to stand, but without the imposition of any sanctions, and that the criminal contempt proceedings should be dismissed. With respect to the finding of civil contempt, the majority simply noted that "no further proceedings . . . are needed" tutionally entitled to jury trial on charges of criminal contempt), question certified answered in the negative, 376 U.S. 681 (1964) (Clark, J.); Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) (Wisdom, J.) (affirming district court's denial of mandatory preliminary injunction requiring admission of James Meredith to the University of Mississippi); Meredith v. Fair, 305 F.2d 341 (5th Cir. 1962) (per curiam) (denying injunction pending appeal); Meredith v. Fair, 305 F.2d 343 (5th Cir.) (Wisdom, J.) (reversing final judgment of district court denying permanent injunction, with instructions that the district court issue mandatory permanent injunction requiring Meredith's admission), cert. denied, 371 U.S. 828 (1962); Meredith v. Fair, 306 F.2d 374 (5th Cir. 1962) (reissuing earlier mandate to district court that an injunction be issued requiring Meredith's admission); see also J. BASS, supra note 31, at 172-200, 248-58; H. COUCH, supra note 31, at 117-19, 124-25; F. Read & L. McGough, supra note 31, at 195-265; Teftt, United States v. Barnett: "'Twas a Famous Victory," 1964 S. CT. REV. 123; Comment, Judicial Performance in the Fifth Circuit, 73 YALE L.J. 90 (1963). 139. J. SILvER, Mississippi: THE CLOSED SocIETY 117 (1966). 140. See United States v. Barnett, 376 U.S. 681 (1964); see also supra note 138 and authorities cited therein.
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because "[tihere has . . . been substantial compliance with this Court's orders. '141 The majority did not acknowledge that this "substantial compliance" had been achieved despite, rather than because of, Governor Barnett's actions. Nor did the majority offer any specific explanation for its decision to relieve Governor Barnett of the judgment of civil contempt already entered against him, or for its decision to waive collection of the fines 142 already accrued. With respect to the criminal contempt proceedings, the majority again noted the "substantial compliance with this Court's orders" 143 that had occurred, concluding that "considerations of respect for the Court do not require the further prosecution of the criminal contempt proceedings.' ' 4 4 Further, in view of the enactment of the Civil Rights Act of 1964145 and "the wide1 46 spread, voluntary compliance with the provisions of said Act," the majority thought it "highly improbable that other persons 1 47 will hereafter commit acts similar to those herein charged. With an unexpressed, but deafeningly audible sigh of relief at the prospect of being finished, once and for all, with the Barnett contempt case, the majority stated: "In what we consider an appropriate application of restraint to judicial power, we close out another part of [this] chapter. 1 48 Finally, as a makeweight argument apparently designed to compensate for the otherwise total absence of legal analysis, the majority, still without the benefit of any citation to authority or legal analysis, noted that the court already had entered a judgment of civil contempt against Governor Barnett, and, thus, "[i]t follows that a fair trial on the merits is the subject of doubt, and dismissal of the criminal proceeding is the only course open that is clearly consistent with 49 fundamental fairness.' 141. Barnett, 346 F.2d at 100. 142. See Meredith v. Fair, 313 F.2d 532, 533 (5th Cir. 1962). 143. Barnett, 346 F.2d at 100. 144. Id. 145. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.). 146. Barnett, 346 F.2d at 100; see also C. WOODWARD,supra note 57, at 86 ("There is no apparent prospect of full compliance nor of an easy solution. The White South is resisting, and a reactionary part of it is defiant. The resistance is stubborn. A minority could become nasty and its defiance brutish."). 147. Barnett, 346 F.2d at 100. 148. Id. at 101. 149. Id. The standard of impartiality embraced by the majority is not supported by
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In separate but complementary opinions, Chief Judge Tuttle, Judge Brown, and Judge Wisdom dissented. Of the three dissenting opinions, Judge Wisdom's provided the most 15sus0 tained and comprehensive rebuttal to the majority opinion.
If
the tone of the majority opinion is casually simplistic, the tone of Judge Wisdom's dissent is studied simplicity. With plain words, vigorous prose, and virtually no footnotes, Judge Wisdom seeks to reach and persuade a wide audience.' 51 The rhetorical technique of the Barnett dissent is different from that of the majority opinion in United States v. Louisiana, but the objective is the same: to reach an audience beyond the legal community, and to impart to that audience an understanding of the basic principles of our system of constitutional government. In seeking to reach that audience, Judge Wisdom's dissent epitomizes another aspect of the so-called golden age, namely, the view that constitutional government is, by definition, a concern the case law. For example, "a judge is [not] disqualified from presiding over injunction proceedings because he has initially assessed the facts in issuing or denying a temporary restraining order or a preliminary injunction." Withrow v. Larkin, 421 U.S. 35, 56 (1975). Moreover, a judge may try a case more than once and decide identical issues each time, after his prior rulings have been reversed on appeal. See FTC v. Cement Inst., 333 U.S. 683, 703 (1948); NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-37 (1947). At all events, a less drastic solution would have been to request that the Chief Justice designate a special panel, comprised of judges from other circuits, to hear the case. 28 U.S.C. § 291(a) (1982). See, e.g., United States v. Isaacs, 493 F.2d 1124, 1131 (7th Cir.), cert. denied, 417 U.S. 976 (1974) (panel designated to hear criminal appeal of Circuit Judge Kerner). 150. Chief Judge Tuttle briefly expressed his views, noting that the court had decided in January 1963 that the conduct of Governor Barnett was sufficiently serious to warrant the commencement of criminal contempt proceedings, that the gravity of the charges had only been enhanced since that time, and that he therefore disagreed with "the judgment of those who believe the public interest, including the integrity of the judicial system, calls now for a dismissal." Barnett, 346 F. Supp. at 101-02 (Tuttle, C.J., dissenting). Judge Brown wrote at greater length to state his "difference [with the majority] . . . in the assessment of the public interest and how it will be furthered or hindered by this action [of dismissing the contempt charge]." Id. at 102 (Brown, J., dissenting) (footnote omitted). To convey the full gravity of the situation, Judge Brown compared Governor Barnett's actions with those of Texas Governor R.S. Sterling, who, in 1931, had declared martial law in certain Texas counties and thus "'interposed the obstruction of his will, subverting the federal authority.'" Id. at 103 (Brown, J., dissenting) (quoting Sterling v. Constantin, 287 U.S. 378, 402 (1932)). Judge Brown drew heavily upon Judge Wisdom's analysis. See also infra note 167. 151. The influence of Judge Wisdom's rhetorical objectives on the structure of his dissenting opinion is well demonstrated when the dissent is compared with an article that Judge Wisdom published on some of the same subjects two years later. See Wisdom, supra, note 24; see also Wisdom, A Southern Judge Looks at Civil Rights, 42 F.R.D. 453 (1966); infra note 173.
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of all citizens. Judge Wisdom commenced his dissent by joining issue with the majority on the only "principle" which the majority had put forth in support of its holding: I respectfully dissent. To my mind, the Court's decision represents the exercise of judicial license, not of judicial restraint. I do not complain of Ross Barnett's escaping punishment. I complain of a governor's escaping the risk of punishment an ordinary citizen or, perhaps, a registrar of voters runs if he is indicted for criminal contempt.'5 2 Assuming, Judge Wisdom suggested, that "the indictment may be dismissed in the interest of the public, that interest should be tested by the significance to the public of Governor Barnett's actions on September 30, 1962."'' 5 On that date, Governor Barnett transformed what might have been remembered as a day "marking the Deep South's turn toward a peaceful solution of its racial problems"' ' 4 into "the worst of many bad days in the Deep South marked by bloodshed, bombings, and church burnings."' 5 5 If the majority's decision is to be judged as an exercise of discretion, the soundness of that exercise of discretion must be judged in view of one principal fact: "On that day in Oxford, Mississippi, the Governor of the State flouted explicit orders of this Court, struck a blow against American federalism, and defied the Nation."'5 8 The fatal flaw in the majority's decision, Judge Wisdom suggested, rested in the fact that the court did "not purport to base its holding on any principle of law," but "on its confidence in a prescient majority's knowledge of what is best for the public."'' 57 Judge Wisdom wrote: Turning inward for calipers, the majority has measured the effect of these changes [allegedly wrought by the enactment of the Civil Rights Act of 1964 and the fact of "substan152. 153. 154. 155. 156. 157.
Barnett, 346 F.2d at 104. Id. at 104-05. Id. at 104. Id. Id. at 105. Id.
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tial compliance" with the court's orders in the Meredith case] on the general attitude of the public, the reaction of public officials, and the probabilities of high state officials' interfering in the future with federal court orders.' 58 The majority's error was two-pronged. First, the majority viewed its decision as a "discretionary" decision, rather than as a legal decision. As Judge Wisdom said: The Court is less like a court than it is like St. Louis. The good French king used to sit under a spreading oak tree, not presiding even-handedly as a judge at trial, but dispensing justice subjectively, arbitrarily, hit-or-miss, according to his fancy of the moment as to what was best for his subjects and when it was best for him to tell them about it. Coming closer home, the law in the Court's decision is like the Law West of the Pecos."5 9 Second, even assuming the legitimacy of the majority's view that its decisionmaking process should be perceived as discretionary, the majority was being either dishonest or ignorant of the history of our country when they suggested that their eagerness to close "the chapter" could be justified by invoking the intoxicating image of a new dawn breaking. As Judge Wisdom wrote, and as later events confirmed, "I doubt whether we have reached the close of the chapter. But I know that we are a long, long way 60 from the end of the book.' The majority was understandably eager to terminate its confrontation with the Governor of Mississippi, but, in doing so, it gave little weight to the historic function of the federal courts. To say, as the majority did, that the question could be framed and resolved as one involving only respect for the dignity of the court was to trivialize it. In truth, as Judge Wisdom plainly and powerfully stated, [t]he serious threat Governor Barnett posed was to the constitutional relationship of the States to the National Government. A public wrong of such enormity carries with it a corresponding and unshirkable duty on the federal court to vindicate the rights of the Nation by bringing the alleged contemnor to
158. 159. 160.
Id. Id. at 106. Id. at 105.
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trial.'61 If this battle was to be fought at all, it should have been waged as a "duel with drawn pencils. . . in the Mississippi Law Journal" or as a litigation "started and stopped in the courts," and not as the bloody confrontation, upon which Governor Barnett insisted, that took place in the streets of Oxford and on the campus of the University. There was more at issue, therefore, than an affront to this Court's dignity when Ross Barnett, as the head of the State of Mississippi, mobilized sheriffs, highway troopers, and local police officers and by force 16of2 arms overcame United States marshals enforcing the law. ' There was more at stake than the court's dignity when Ross Barnett "instructed his attorney to advise the Court that he had not purged himself of contempt"' 6 s and then required the executive branch of the federal government "[t]o win this battle [by deploying] more soldiers under arms at Oxford, Mississippi, or held close by in reserve, than George Washington in the Revolu1 64 tionary War ever commanded at one time.' What was at stake, of course, was the supremacy of federal law, the Governor's profound disrespect for the supremacy of federal law, and, most important, the Governor's role as a teacher of disrespect for the supremacy of federal law: The Governor of Mississippi, trained in the law, knew or should have known that the Supremacy Clause makes hash of the so-called Doctrine of Interposition. All informed persons know that this political poppycock has never been recognized in a court of law. But the uninformed, the uneducated, the very persons likely to resort to violence, were certain to be misled when their chief executive "interposed" himself between the United States and the University of Mississippi. 65 No one who has studied the history of our country, Judge Wisdom might have added, could possibly believe that Governor Barnett's actions were simply aberrational. Nor could any in161. 162. 163. 164. 165.
Id. Id. Id. Id. Id.
at 107. (emphasis in original). at 108-09 (emphasis in original, footnote omitted). at 109 (footnote omitted). at 107.
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formed person share the majority's view that such actions were unlikely to occur in the future. True enough, the confrontation between the court and the Governor of Mississippi was a serious matter. The confrontation was serious because the Governor of a State, like other state and local officials, is sworn to uphold the Constitution of the United States, 166 not to interpose himself between the federal government and the citizens of his state. The confrontation was serious because a Governor is no mere state official, but the head and embodiment of state government, which "[f]or good or for ill, . . teaches the whole people by its example. ' 167 As Justice Brandeis said: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 1 68 Finally, the confrontation was serious because, at least in simpler times, a Governor's armed resistance to federal marshals executing the mandate of a federal court would have been perceived as treason. If not supported by legal authority, the route chosen by the majority had much to commend it, at least on grounds of prudence and pragmatism. No less a judge than Judge Rives was willing to take that route. But Judge Wisdom could not do so because he could not subscribe to the compromising view of federalism implicit in the majority's willingness to sound retreat. Judge Wisdom touched lightly on the main reason for his dis166. U.S. CONST. art. VI ("The Senators and Representatives before mentioned, and the Members of the several State legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."). 167. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). As Judge Wisdom wrote in his dissenting opinion in Barnett, "the significance of the case for the public lies in the fact that . . . the contempt charged was, in effect, the contempt of a Governor of a State against the Nation-against American federalism, as established in the Constitutionand as defined by the federal courts." 346 F.2d at 107 (emphasis in original). Chief Judge Tuttle echoed this sentiment: "The gravity of the charges was enhanced, not lessened, by the fact that they were against a governor and lieutenant governor of a state." Id. at 102 (Tuttle, C.J., dissenting). So, too, did Judge Brown: Precisely because his duty was so high, the likely consequences of his interposition so devastating, the responsibility of moral leadership in the maintenance of law and order in the face of unpopular situations so awesome, it is important that Governor Barnett be held accountable for his actions which he would be the first to minimize in importance. Id. at 103 (Brown, J., dissenting). 168. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
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sent-the majority's apparent failure to appreciate the true gravity of Governor Barnett's persistent and tenacious reliance on the "political poppycock" known as the interposition doctrine.169 Like the majority, Judge Wisdom knew that the Meredith affair was over. But, looking to the past as well as to the future, he could not share the majority's facile optimism that this "political poppycock" would not once more be advanced, when state officials once again needed a "principle" with which to dress up their opposition to federal policies and to obscure the settled relationship between the states and the federal government. As Judge Wisdom viewed the case, the ultimate question involved in Barnett was the same question that Daniel Webster had addressed in his Second Reply to Senator Hayne, and Judge Wisdom's opinion echoes Webster's view of the Constitution. In his Second Reply to Senator Hayne, Webster said: The great question is, Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws? On that, the main debate hinges. . . . But I do not admit that, under the Constitution and in conformity with it, there is any mode in which a State government, as a member of the Union, can interfere and stop the progress of the general government by force of her own laws, under any circumstances whatever.
I must now beg to ask, sir, whence is this supposed right of the States derived? Where do they find the power to interfere with the laws of the Union? Sir, the opinion which the honorable gentleman maintains is a notion founded on a total misapprehension, in my judgment, of the origin of this Government, and of the foundation on which it stands. I hold it to be a popular government, erected by the people; those who administer it, responsible to the people; and itself capable of being amended and modified, just as the people may choose it should be. It is as popular, just as truly emanating from the people, as the State Governments. It is created for one purpose; the State Governments for another. It has its own powers; they have theirs. There is no more authority with them to arrest the operation of a law of Congress, than with Congress to arrest the operation of their laws. We are here to administer a Constitu169.
Barnett, 346 F.2d at 107 (Wisdom, J., dissenting).
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tion emanating immediately from the people, and trusted by them to our administration. It is not the creature of the State Governments....
. .. No State law is to be valid which comes in conflict with the Constitution, or any law of the United States passed. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the Constitution itself decides also, by declaring "that the judicial power shall extend to all cases arising under the Constitution and laws of the United States." These two provisions, sir, cover the whole ground. They are, in truth, the key-stone of the arch. With these, it is a constitution; without them it is a confederation.'1 " If Judge Wisdom's dissent in Barnett owes much to Webster's Second Reply to Senator Hayne, so too is the dissenting opinion indebted to President Jackson's Nullification Proclamation. 17 In his proclamation, President Jackson stated that the power to annul a law of the United States, assumed by one State, [is] incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it 17 2 was formed. As President Jackson wrote: "The Constitution of the United States. . .forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same."'"3 So, too, Judge Wisdom's objection 170. 10 CONG. DEB. 73, 77-78 (1830). 171. Jackson, Proclamation,in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1902, at 640 (J. Richardson ed. 1903). 172. Id. at 643. 173.
Id. at 648 (emphasis in original). Judge Wisdom has elsewhere articulated this
view: These stresses and strains are peculiar to our unique form of government. They occur because, unlike other federalisms, in the American system states are neither administrative units of a national government nor sovereign members of a federated league. They are indestructible political entities having their own law, own authority, and own system of courts, but subordinate to the federal sovereignty in all matters of national concern. Wisdom, supra note 24, at 411-12; see also Dombrowski v. Pfister, 227 F. Supp. 556, 57071 (E.D. La. 1964) (three-judge court) (Wisdom, J., dissenting), rev'd, 380 U.S. 479 (1965); Wisdom, Foreward: The Ever-Whirling Wheels of American Federalism, 59 NoTRE DAME L. REv. 1063, 1076-78 (1984); Wisdom, A Federal Judge in the Deep South:
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to Governor Barnett's role as a teacher of opposition to the supremacy of federal law echoes President Jackson's concern that the people of South Carolina had been misled by their leaders. President Jackson wrote: This right to secede is deduced from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior; that because they made the compact they can break it when in their opinion it has been departed from by the other States. Fallacious as this course of reasoning is, it enlists State pride and finds advocates in the honest prejudices of those who have not studied the nature of our Government sufficiently to see the radical error on which it 74 rests.
1
Judge Wisdom's debt to Webster and Jackson is both clear and profound, but also unarticulated. One can only surmise the rhetorical grounds for this approach. When Webster and Jackson spoke to the issue, it was a live controversy. But with the end of the Civil War and the enactment of the Civil War Amendments, the issue was put to rest forever, at least as a matter of legitimate constitutional debate. 17 5 When Judge Wisdom wrote in 1965, there was no point in reciting the political history of this discredited theory.1 7 To do so would have added bulk, but not weight, to the dissenting opinion, and it would have sacrificed the desired simplicity of the dissenting opinion. If the scaffolding of history had been left up, the "walls of sure and
Random Observations, 35 S.C.,. REv. 503, 512 (1984); Wisdom, Rethinking Injunctions (Book Review), 89 YALE L.J. 825, 833 (1980). 174. Jackson, supra note 171, at 648. 175. See, e.g., Ex parte Virginia, 100 U.S. 339, 344-45 (1879): One great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States. They were intended to take away all possibility of oppression by law because of race or color. They were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress. 176. It would be a grave mistake, of course, to underestimate the political currency which this view retained during the period following the Supreme Court's decision in Brown v. Board of Educ., 347 U.S. 483 (1954). See Sullivan, supra note 30, at 1112-14; see also 2 R. KLUGER, SIMPLE JusncE THE HIsToRY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 752-53 (1975); F. READ & L. McGOUGH, supra note 31, at 62-63. Indeed, it was Judge Wisdom's appreciation and understanding of that very political currency which informed the rhetoric of his dissent in Barnett.
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solid stone"' 17 7 would have been obscured. In other words, an extended discussion of the interposition and nullification doctrines would not have assisted Judge Wisdom's primary intention in this dissent: teaching his lesson in constitutional law. But the truth was that Governor Barnett had sought to breathe new life into the interposition doctrine, and Judge Wisdom, with a keen understanding of the history of our country, was compelled to voice his dissent to even the minor victory which the majority had accorded that effort. For those familiar with the history of our country, the language of Judge Wisdom's opinion was sufficiently evocative to convey the full historical significance of the case. For those who were not familiar with that history, a detailed recitation of these points would have added little. In this sense, the materiality of history was far different in Barnett than in United States v. Louisiana, and Judge
Wisdom's rhetorical treatment of history was also necessarily different. Judge Wisdom therefore closed his opinion on a different note: That this is a government of laws and not of men. Concluding with the strong and simple cadence of iambic pentameter, he wrote: There is an unedifying moral to be drawn from this case of The Man in High Office Who Defied the Nation: The mills of
the law grind slowly-but not inexorably. If they grind slowly enough, they may even come, unaccountably, to a gradual stop, short of the trial and judgment an ordinary citizen expects when accused of criminal contempt. There is just one compensating thought: Hubris is grist for other mills, which grind ex17 8 ceeding small and sure.
IV.
JUDGE WISDOM AND LIBERAL LEARNING
Judge Wisdom's opinions in United States v. Louisiana and United States v. Barnett illustrate "the work of the law as the
work of individual minds"'' and the role of the judge as a reader and composer of texts, a "person [who] is always respon177. S. HEANEY, supra note 38, at 50. 178. Barnett, 346 F.2d at 109 (Wisdom, J., dissenting). 179. White, supra note 27, at 1686.
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sible as a composer for the composition that [he] makes."1 so By focusing on the individual mind of a judge, however, one does not mean to suggest that excellence is to be equated with the eccentric, the capricious, or the aimlessly provocative. Nor does one mean to suggest that law is the product of private thoughts alone. 8 1 Indeed, nothing could be further from the truth. One must focus upon the individual mind because, by definition, the judge's opinion is the product of an individual mind, and the quality of that product depends upon the resources which an individual mind can bring to bear upon the resolution of a set of problems. The individual mind is both the repository and the agency of the genius of tradition. Only tlrough the individual mind can the law bring to bear the collected learning and wisdom of our culture and history. It is by reference to the individual mind, therefore, that one distinguishes between what might be called journeyman work-the merely competent-on the one hand, and work that is profound or wise, on the other hand. Thus, the individuality of the judge's mind is important for the somewhat paradoxical reason that it is the sole means by which the law is capable of understanding and articulating its essential truths. It is in this sense that the process of adjudication must be understood as profoundly personal, creative, and "anti-bureaucratic.' 8 2 It is also in this sense that the profoundly personal is the very antithesis of the eccentric.,,,
180. Id. 181. Cf. Katz, Sullivan & Beach, supra note 14, at 54 ("[O]nly a limited range of choices is open to lawyers and judges at a particular time. However strong the perceived demands of social necessity, only some possible legal responses will fall within the range of appropriate judicial choice."). 182. White, supra note 27, at 1686; see also United States v. Lovett, 328 U.S. 303, 321 (1946) (Frankfurter, J., concurring) ("Most constitutional issues derive from the broad standards of fairness written into the Constitution (e.g., 'due process,' 'equal protection of the laws,' 'just compensation'), and the division of power as between States and Nation. Such questions, by their very nature, allow a relatively wide play for individual legal judgment."). 183. Professor White has written: In order to focus students' attention on this aspect of judicial criticism, I have sometimes asked them to explain, in writing, what it is that they admire in a particular opinion the result of which they would vote against; and what they condemn in a particular opinion which "comes out" in a way they approve. This is a way of defining excellence not in terms of votes or "results" but in terms of the composition: what the case is made to mean; how the judge defines himself or herself as a judge; what possibilities for argument and life the opinion holds out to the future; and so on.
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From this perspective, the task of the judge, as a reader and composer of texts, requires more than a mastery of digests and citators; it requires more than a narrow understanding of statutory rules and case holdings. It requires an intellectual framework and an understanding of context, an appreciation of issues as part of a whole, and not as a mere ephemera. More specifically, it requires that appreciation of the past-and the continuity of human experience-which is the product of liberal learning. Judge Wisdom's use of history in United States v. Louisiana and United States v. Barnett illustrates the principle that the intellectual ability, the breadth and depth of perspective, and the intellectual energy of the individual judge are central components in the development of the law. These two opinions illustrate the root difference between the merely competent, but uninspired, and the truly wise or profound. Most important, they illustrate the claim to be made for history in adjudication, the importance of historical context as a way of understanding the significance of the issues to be decided. Because Judge Wisdom's conclusions in these two cases might well have been different if he had not approached the problems presented in these cases with his appreciation and understanding of the past, these two opinions illustrate the importance of liberal learning in adjudication. These two opinions therefore demonstrate something profound and universal. The excellence of the so-called golden age of American law was an excellence based on liberal learning rather than mere technical expertise. It was thought desirable that lawyers and judges should immerse themselves in the great books because that is the means by which men and women learn to think and write and speak with their own authority. At least until recent times, that view has had a strong place in the culture of American law because, as Learned Hand wrote, in the mdst important matters with which a lawyer or judge deals, "everything turns upon the spirit in which he approaches the questions before him. ' 184 As Judge Hand said, "[m]en do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class." 1 85
White, supra note 27, at 1680; see also Sullivan, supra note 23, at 351-53. 184. Hand, supra note 18, at 12. 185. Id. at 12-13.
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Judges and lawyers must bring to bear upon their cases the fullness of their learning, and that learning must be equal to the task. Judges must perceive issues, not as isolated ephemera, but as parts of the larger context-the greater whole-of history. They must at least strive for that panoramic view, transcending time and place, which is both the aim of liberal learning and a source of moral courage. If there is progress in the law, it is because the views of judges who are, in this sense, better readers and composers of texts, ultimately prevail over those of judges who are less gifted or less interested-who, for one reason or another, bring less to bear upon the issues they must decide. In this sense, the law itself-and not just the individual judge-strives to "see life steadily and see it whole."1 8 For twenty-nine years, Judge Wisdom has made his contribution to that process. He has travelled "in the footsteps of those who've '187 gone before.
186. E.M. FORSTER, supra note 17, at 269.
187. Anonymous, supra note 1.
