Potter Stewart… My Kind of Textualist
After reading his dissent within the Griswold v. Connecticut I was intrigued with his convictions towards textulism and the way he staunchly refused the ‘penumbra’ of inferred privacy the Bill of Rights is said to contain. Before this reading the only thing I had known of this Warren era Justice was his famous “ I know it when I see it’ obscenity quote from Miller v. California, and by the second line in, I was hooked. The more I read of him the more I respect the way he used Framer’s intent (a flawed method, I would grant, but I have yet to come across a ‘perfect’ way to read the Constitution) to assist in sculpting the modern way civil rights, privacy, freedom of religion and free speech are viewed in this nation. Whether with or against the majority, Potter Stewart ( sweet name, right? )had his hand in some of the largest cases of the 20th Century.
#5. Miller v. California 1972
As discussed above, Miller v. California is a landmark case concerning the distribution and production of hardcore pornography and its status as protected speech under the 1st Amendment. The question before the court asked whether the distribution of ‘obscene materials’ was protected speech. And by affirming again that obscenity was unprotected, the Court gave strength to the Federal and state governments in cracking down on all forms of real- life pornography (remember this was 1962, well before the xxx.com boom that came with the internet). Why does this matter in our current lives ? Through the language of the court, communities are allowed to set up their own standards for obscenity, which is why you can sunbathe nude in San Francisco but you can’t purchase Hustler in Salt Lake City. Why was this a huge case to Stewart ? His dissent alongside the rigid textualist Justice Black warned against the ‘inherent dangers of undertaking to regulate any form of expression’ and many, Stewart included encouraged the public to take up a constitutional amendment defining obscenity, which never happened.
#4 Griswold v. Connecticut 1965
This is the case that made me really take to Mr. Potter Stewart’s ( I couldn’t get away from that joke if I tried) writing and Constitutional interpretation. As a quick background to the case, Estelle Griswold a woman who ran a Planned Parenthood in Connecticut, intentionally opened a contraceptive clinic in violation of a state law with the hopes of challenging what was previously claimed to be a ‘unenforceable law’. The question posed to the court related whether the Bill of Rights provided a right to privacy between a man and wife, and their doctors. What makes this case so famous is the established ‘right to privacy’ as something enumerated within the Constitution, which paved the way for decisions such as Roe v. Wade and many more. So why would I honor a judge who speaks out against one of my most dearly held beliefs? Its all in the words. In his first sentence dissenting against the 7 member majority, Stewart rebukes the contraceptive law, endorses citizens rights of choice persisting to personal beliefs and religion yet is unwilling to admit that it is not a constitutionally created law that ought to be changed or upheld.
#3 Engel v. Vitale 1962
As the lone dissenter in a case that brought the separation of religion and public schools to the forefront of American politics as it asked the question: “Are voluntary opening prayers in a public school an ‘establishment of religion’ as prohibited by the First Amendment. Of course it is, and that is how all the judges felt, all but one, that is. By pointing to half a dozen ways in which our government has added God to our national songs, currency, monuments and practices have passed through the supposed ‘wall of separation’. This is just another instance where I believe the former Justice to see clear to the issue, and provide what I consider to be a very sharp interpretation.
#2 Katz v. United States 1967
If my enjoyment of the Griswold ruling seemed unnecessarily enthusiastic, then you should know that I go positively giddy when reading the majority opinion penned by Stewart in this 1967 case concerning individual privacy and wiretapping. Charles Katz, was convicted of illegal sports betting by payphone using wiretapped messages recorded by the FBI, which he claimed was a violation of his 4th Amendment protection from searches and seizures. This is a crucial case in today’s world as the 7-1 decision found directly in favor of the extended rights of privacy in a public domain, such as a payphone. This case may also come into play in the near future, as privacy and anonymity through the internet may come into the high courts consideration sooner than later. In his opinion of the Court, Stewart expands a citizens rights of privacy by pointing out that while the 4th Amendment could not be ‘translated into a general constitutional “right to privacy” while still protecting the citizens, not the spaces they inhabit. This understanding has now expanded to include vehicles and other places of confidentiality. This leads us to one of the most talked about cases in history, a case with an amazing story that changed the face of modern law.
#1. Gideon v. Wainwright 1963
Clarence Gideon was serving a 5 year larceny sentence when he bribed a guard to photocopy and mail a handwritten petition to the Supreme Court in hopes of positing a heavy question in front of them that had been settled once before by the high court. Looking to overturn a previous courts decision, the Warren court took up the career criminals case in hopes of answering the pivitol question: does the 6th Amendments right to counsel count as a fundamental entitlement within the Constitution, and does that entitlement force the government to provide counsel should a defendant prove unable to do so? In an unanimous decision (which surprisingly happens about 30% of the time) the court, speaking through Justice Hugo Black, enforced what can only be described as a tight interpretation of our founding documents. They threw out previously held ideas of ‘capital crimes’ and process of being selective in providing representation. This gave every citizen a fair chance with legal representation when their day at court came. Stewart joined his voice with the majority opinion, and we can only assume he reveled in a chance to bring about a new era in Constitutionally enforced protection from undue persecution.
So there we have it, five landmark cases of the Warren Era broken down a bit into plain English with some of the implications of their decisions put forward as well. I hope you’ve learned a little bit along the way. I hope even more that you disagree on some things and look forward to some comments below, sparking debate. I will leave you with this thought; based on what you know now of Stewart and his textualist approach to the Constitution, how do you think he would approach the censorship, copyright infringement and privacy issues that will be on our top jurists minds in the near future ? Or even more current, where would he side on the upcoming marriage equality case ?
I still need some citing to be done, but I did not want to leave this out at the very least
the good folks that keep wikipedia.com running for my go to dates/ names
http://www.law.cornell.edu/ accessed 2/6/13 -2/10/13
O’Brien, David M. Constitutional Law and Politics. New York: W.W. Norton, 1997. Print.
Copyright 2012 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 106, No. 2
ARE EVEN UNANIMOUS DECISIONS IN THE
UNITED STATES SUPREME COURT
Lee Epstein, William M. Landes & Richard A. Posner