a rational argument on the law or facts. It is the burden of the Governmen opposing an attempted criminal appeal in forma pauperis, to show that the apte is lacking in merit. ***" 109 Justices Clark and Harlan dissented on the th that the petitioner must show that his grounds are not frivolous. They woul that is to say, shift the burden of going forward, and they would accord "grea weight" to the trial judge's certificate of frivolity. Oyler v. Boles 110 is perhaps principally significant as an indication of the cotinuance until the retirement of Mr. Justice Whittaker and Mr. Justice Frans furter of a 5 to 4 division on several kinds of civil liberties cases. In this in a the procedure of West Virginia in applying its "habitual criminal" statute was before the Court. A majority, speaking by Justice Clark, sustained the ation of the act against a charge of a denial of due process. Justice Douglas, . the concurrence of the Chief Justice and of Justices Black and Brennan, disse on the ground that procedural requirements (principally the absence of previ as notice of the nature of the charge based upon previous convictions) lacked de process. 113 Among the other decisions involving persons accused of crimes three sen to warrant brief mention. Lanza v. New York skirts the issue decided the p vious year in Mapp v. Ohio," in which the Court overruled previous decisions at . held that the fourth amendment protection against unreasonable searches and seizures-i.e., the right to privacy even in a world of electronic devices-api.** to the procedure in State as well as Federal courts. The peculiarity of Lavr. that the electronic eavesdropping was done in a visitors' room in a jail; the C held that such a room is not the equivalent of a man's "house," that “a jail shares none of the attributes of privacy of a home, an automobile, an office, or a à 77. room.' If the conversation thus overheard had been that of prisoner at12 counsel, the majority opinion might have shown a somewhat different attitude toward such devices and the evidence so obtained. Whether the fact that it was between the prisoner and his brother renders the situation different under the fourth amendment right to privacy is not completely clear-not so much becs → opinions of the Chief Justice and Mr. Justice Brennan insist that the coLS" "Z tional issue was not before the Court, as because the majority opinion of M Justice Stewart, while referring to the fourth amendment (but not citing Mer rests on the point that two counts in the case against Lanza were in no way related to the evidence procured by electronic eavesdropping. Mr. Justice Hara: concurred in a two-sentence opinion. He said that he understood that the de sion was not based upon the proposition that the 14th amendment incorporats provisions of the 4th. Another question of incorporation is found in Robinson v. California. Beover the dissent of Mr. Justice Clark and of the recently appointed Mr. JS – White, the Court held invalid, as a cruel and unusual punishment in violati of the 8th and 14th amendments, a California statute which made it a enca offense for a person to "be addicted to the use of narcotics." While making clear that the authority of the State to control the traffic in narcotics, or anti or disorderly behavior resulting from the use of narcotics, was not involved the Court held that the State may no more punish a person for being an unreformat addiet of narcotics than for being afflicted with leprosy or a venereal diseas, Narcotic addiction is a form of illness. The State may not punish an addict #s has never touched a narcotic drug while in California or been guilty of irregular behavior. Even a single day in prison "would be a cruel and unusual pun ment for the 'crime' of having a common cold." Two concurring and two dissenting opinions accompanied this judgment. Pa cause of his recent appointment to the Court, the dissent of Mr. Justice Whi is particularly interesting. He would not rest the decision on a constituti ne ground; the application of the cruel and unusual punishment clause is far-fented and unnecessary. The statute can be interpreted in a manner to save its o stitutionality. What the Court has done, probably because of its "alergy to s stantive due process" in cases involving economic regulation, is to reve California's power to deal with "the recurring case under the statute where ther is ample evidence of use ✶ ✶ ✶" 115 100 Ibid., p. 448. 110 368 U.S. 448 (1962). A case combining several issues which touch off moral prejudice, as well as convictions concerning freedom of the press, is Manuel Enterprises v. Day.118 It involved the authority of the postmaster at Alexandria, Va., and ultimately of the Post Office Department, to bar from the mails magazines composed primarily for homosexuals and containing advertisements which allegedly gave information "where obscene matter" could be obtained. The Supreme Court reversed the Court of Appeals for the District of Columbia which had affirmed a district court decision denying injunctive relief to the publishers. The members of the majority (only Justice Clark dissented) could not agree on an opinion. Justice Harlan, joined by Justice Stewart, found that the magazines were not obscene under established criteria, and that the Government had not proved that the publishers knew that the advertisers were offering obscene matter for sale. Justice Brennan, joined by Chief Justice Warren and Justice Douglas, concurred on the ground that the applicable act of Congress " does not authorize the Postmaster General to exclude matter from the mails on his own determination that it is obscene. He noted that the Court had recently sustained the criminal sanctions of section 1461 against a challenge of unconstitutionality under the first amendment," but reiterated the view that the Government is "not free to adopt whatever procedures it pleases for dealing with obscenity *** without regard to the possible consequences for constitutionally protected speech." The essential procedural safeguards are lacking. 99 119 118 Mr. Justice Black concurred in the result. Mr. Justice Frankfurter and the newly appointed Mr. Justice White did not participate. Mr. Justice Clark dissented, saying that the congressional mandate was clear, that despite this statutory provision, the Court's ruling "requires the U.S. Post Office to be the world's largest disseminator of smut and grand informer of the names and places where obscene material may be obtained." It seems apparent that the issues involved have not finally been disposed of. Cases involving questions of Communist subversion and of the authority and procedure of legislative investigating committees were not wholly absent in the 1961 term, but they were less inflammatory than those of recent years. The Court remained divided in most such cases. Killian v. United States,120 involving the non-Communist oath required of an officer of a labor union, was decided by a 5-to-4 majority on narrowly procedural grounds. The majority of five, speaking by Mr. Justice Whittaker, expressed the view that nothing in the Labor-Management Relations Act makes membership in or affiliation with the Communist Party a crime, but does make the utterance of a false affidavit a crime. The constitutionality of section 5 of the Communist Control Act of 1954 was not considered. The case was sent back to the district court for retrial on grounds relating primarily to whether certain Government papers need be produced in evidence. In three opinions the minority, which consisted of the Chief Justice and Justices Black, Douglas, and Brennan, urged that a test oath could not be constitutional and that American Communications Assn. v, Douds should be overruled, that only illegal activity and not mere membership in the Communist Party is a crime," or that the instructions to the jury in the case of Killian were defective even under the Douds rule.123 A very real difference of opinion divides the Court on the issues involved in this and similar cases. Moreover, two members of the Killian majority have been replaced by two appointees whose views on the subject are unknown. 121 122 The Court was, by contrast, unanimous in holding unconstitutional, because it was so vague as to deny due process of law, a Florida statute requiring every public school teacher, together with other State employees, to execute an oath on penalty of immediate discharge that he had not, did not, and would not lend aid, support, advice or counsel, or influence to the Communist Party.124 The appellant, a public school teacher, refused to take the oath, though alleging that he is loyal to the Constitution of the United States and is not, nor ever had been, a member of, nor had he ever given any aid or advice to, the Communist Party. The State courts sustained the law. On appeal the Supreme Court, speaking by 116 370 U.S. 478 (1962). 117 18 U.S.C. § 1461. 118 Roth v. U.S., 354 U.S. 476 (1957). Quoted from Marcus v. Search Warrant of Property, 367 U.S. 717, 731 (1961). 129 368 U.S. 231 (1961).. 121 339 U.S. 382 (1950). Douglas, J., dissenting, 368 U.S. 231, 261–267. 123 Brennan, J., ibid., pp. 267-277. 124 Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). Mr. Justice Stewart, reversed, finding the statute in violation of the 14th amend ment. Its language is ambiguous, vague, capable of a variety of interpretation says nothing of advocacy of violent overthrow of government or even membe ship, past or present, in the Communist Party. In recent times candidates i that party had appeared on the ballot in many elections. The party has endere candidates nominated by other parties. Could one who had ever voted for s a candidate take the oath without rendering himself liable to prosecution perjury? Could a lawyer who had defended a client who was a Communist 'as the oath? Could anyone "who had ever supported any cause with contempora = ous knowledge that the Communist Party also supported it" subscribe to "1⁄2oath? Only Justices Douglas and Black, dissenting, found any similarity betweer 'le Florida oath in Cramp and the Washington loyalty oath required of all pr employees, including university professors, in Nostrand v. Little. The majorin a one-sentence per curiam ruling dismissed for want of a substantial Fed-question an appeal from the Supreme Court of Washington sustaining an oath loyalty to the Constitution and of nonmembership in subversive organizat: 4. The State court had, as the result of a previous Supreme Court remand, ru» that the teacher was entitled to a hearing before discharge. 127 An issue productive of sharp disagreement within the Court and of t criticism of the Court's rulings in Congress and in the public press—the s** and procedure of congressional committees investigating Communist or st versive activities-was involved in one major case of the term and one trave Russell v. United States 126 was decided on narrowly procedural grounds; Silver 1 United States was disposed of in a per curiam opinion on the authority Russell. In both, Justices Clark and Harlan dissented. Russell involved four tions of six persons in as many cases in the District Court of the District Columbia for failure to answer questions pertinent to the inquiry before a ver gressional committee. The convinctions had been affirmed by the Court of Appe for the District. On certiorari the Supreme Court reversed, Justices Frankfur and White not participating. Mr. Justice Stewart for a majority of tive run on "a single ground common to all" six cases and made it clear in the first p graph of his opinion that the decision reaches “no other questions." That gr** was that the indictments in each of the cases "failed to identify the subject me congressional subcommittee inquiry at the time the witness was interroga!" His opinion goes into considerable detail in considering both the statutes gover ing procedure and the judicial precedents and concludes, as it began, that indictment under 2 U.S.C. section 192 must state the question under congresstor committee inquiry as found by the grand jury." Both Mr. Justice Clark and Justice Harlan wrote dissenting opinions in which the view is expressed the "the Court today abruptly breaks with the past," and that the interpretation the majority is "novel" and will "serve to encourage recalcitrance to legitima congressional inquiry ***.” All of this discussion of statutory requirements a′ judicial precedents was irrelevant to Mr. Justice Douglas, who concurred 1 the holding, since he believed that "no indictment, however drawn, could in view be sustained under the requirements of the first amendment." The purpose of the investigation was the Communist infiltration of the press and was the fore unconstitutional as a violation of the prohibition against abridging the fre dom of the press. IV. TWO CASES ON THE RIGHTS OF PRIVATE PROPERTY Nearly all the decisions of the term which directly involved the rights of private property were concerned with the interpretation of Federal state dealing with taxation, antitrust regulation, admiralty, or labor relations. These to repeat what was remarked previously, are of specialized interest and concer: One case, however, has exceptional importance, since its future applicat apparently involves the liabilities of scores of airports and the rights of eve tiguous or nearby property owners. In Griggs v. Allegheny County the respore ent, as owner and lessor of the Greater Pittsburgh Airport, was held liable for damages to the property of the owner of a residence located 3,250 feet from the en of a runway. The Pennsylvania trial court had appointed a board of viewers to determine whether there had been a taking of an air easement over the prot 1368 U S. 436 (1962). 1369 1.8. 749 (1962). 12 180 U.S. 717 (1962). 1369 U.S. 84 (1962). erty and, if so, whether Allegheny County must pay compensation. This board found that the noise, vibration, and danger were such that the value of the residence had been greatly lessened. A finding of liability by the trial court was reversed by the State supreme court. In United States v. Causby 129 the Supreme Court had held that the United States had, by low flights of its military planes over a chicken farm, made the property unusable for that purpose and that therefore there had been a constitutional taking of an air easement, requiring compensation. In Griggs the only question which appeared to be at all doubtful to the Court was whether the taking had been by the airlines, by Federal authority (the Civil Aeronautics Administration had established regulations for takeoffs and landing and the airport was not only designed under Federal regulations but was financed "in large part by funds supplied by the United States"), or by Allegheny County. The majority held that the county was liable, since it "was the promoter, owner, and lessor" of the airport. Mr. Justice Black (with whom Mr. Justice Frankfurter concurred) dissented, though agreeing that there had been a constitutional taking of property rights. In their judgment the county had acted in all important respects under Federal regulations, and the United States should be responsible for the financial burden. Future applications of this decision will apparently involve not only the factual question whether there is or is not an intolerable noise, vibration, or danger, but also whether the use to which the property is put came before or after the airport was projected or built, or perhaps before or after there was a change from propeller to jet aircraft. An unusual issue of more limited applicability is left hanging in Public Affairs Associates v. Rickover 130 This case involved the question whether Vice Admiral Rickover of nuclear submarine fame had a full property right to various speeches he had delivered. The majority of the Court was content to hand down a relatively brief per curiam opinion, the Chief Justice and Mr. Justice Whittaker dissenting in one opinion, Mr. Justice Harlan in another, while Mr. Justice Douglas wrote a concurring opinion. The substantive issue-whether Admiral Rickover held exclusive publishing rights to speeches not only delivered but distributed without limitation as to the purposes for which they would be used-is not decided. The majority simply vacated the judgment of the Court of Appeals with a direction to return the case to the district court for trial upon more adequate and accurate information. The decision of the trial court had been under the Declaratory Judgment Act and, in the opinion of the Supreme Court, was made on insufficient investigation of the matter of "claims to intellectual property arising out of public employment." Questions touching the "responsibilities and immunities" of those in the public service are too important and too delicate to be decided without an adequate and complete record. The position of the Government of the United States has not been stated, nor was it made clear to what extent the Admiral made use of Government facilities and personnel in preparing them. About all that we can conclude from the case is that the Court differed on the question at issue, and that the majority thought that a ruling should be postponed until it had a more complete record before it. V. "WITH LIBERTY AND JUSTICE" AND PERHAPS EQUALITY "FOR ALL" A longer perspective may enable us to see serious mistakes made by the Court in the 1961 term that are not now apparent, but, at the present time, the Court appears to have reflected the best judgment of the country in its major constitutional decisions. To be sure, too much bickering attended the dissenting and concurring opinions, and some of these detract from the stature of the judiciary. Nor do all of the decisions have majority opinions worthy of the importance of the canse. It is, for example, regrettable that so fundamental an issue as toleration of religious beliefs, or absence of beliefs, should not have had a more persuasive statement in the School Prayer case. But if Mr. Justice Black's opinion is not in the grand manner of Marshall or Holmes, he is clear and emphatic about the danger of giving judicial approval to the use of State authority where State authority should not intrude, and it is a wise decision. Most of the Court's critics demonstrate little except their narrow view of the national interest by their condemnations of it, and we can only hope that these criticisms of the Court will not lead to a retreat from a sound position. More likely than a retreat from Engel appears to be a division in the Com which may lead to a serious miscarriage of a decision supporting an essential principle of representative government. I refer to the possibility that, as sequel to the Reapportionment case, the Court will give its imprimature to unjust, because unequal, system of representation in one or both houses of thin State legislatures. Since Baker v. Carr was decided on March 26, 1962, them has been so much talk of the so-called Federal principle or traditional base of representation in many States, of the need, or at least the justification f different principles of representation in the two houses, of the errors of require "mathematical exactitude," that there is a very real danger of overlooking wha is involved. No one, so far as I know, has, as a result of Baker, advocated abolishing the separation of powers and its correlative, checks and balances. No one has pr posed doing away with bicameralism, with the Executive veto, with judicial re view. What is at issue is not removal of multiple consideration of legislation. including both the Executive veto and review by the courts, but removal of inequitable "tradition," one that has become far more unequal in this tury, whereby persons in rural areas are given more representation simply cause their numbers are few. If it were proposed that those living on farmin villages were to be allowed to vote 5 or 20 or 50 times on election day, whi those living in the suburbs could vote but once, few would support the pro posal. Such a plan would be thought as inconsistent with the true concepcion of a republican government as the restoration in England of rotten boroughs or in this country of allotment of a great majority of seats in State legislatures to the tidewater with a handful left for the back-country districts, or perhaps of higher property qualification for State senators than for representatives, a a number of States in 1787. Many recent studies have demonstrated statistically how very unequal the bases of representation have become. The decline in numbers of the rural pont. lation and the growth of urban and suburban communities will not be checked overrepresentation of the former and underrepresentation of the latter. J as the large State-small State division in 1787 was, as history has demonstrates unrelated to the issues and problems confronting the Nation and the States = the practice of "protecting" or "preserving" rural values or interests has been and will continue to be a source of the misapplication of the principle of equa ~ of voting rights as long as it survives. The Supreme Court has at last expresse its willingness to deal wtih that form of discrimination. It will bear a heart burden of reproach if it agrees to any standard of representation less equiratu than equal justice for all. The application of that standard will be diffi* though far less so than the application of the principle of equality in the pub school integration ruling. We may assume that some ineqnities will alwin exist, just as we assume that some gerrymandering of districts will continge What is important is that the Supreme Court, now that it has ruled that the is is justiciable and to be dealt with under the equal protection clause, establish i standard that can be defended on principles to which this Nation has beet committed since 1776, and not accept as a standard the too numerous failure to abide by those principles. STATEMENT ADOPTED ON CONSTITUTIONAL AMENDMENTS ON REAPPORTIONMENT ( STATE LEGISLATURES BY THE NATIONAL BOARD OF THE YWCA-MAY 7, 1985 Whereas the YWCA is committed to support— The preservation and full realization of our traditional civil liberties protesting vigorously when fundamental freedoms are abridged or denied and The extension of voting rights to all citizens and the protection of per sons in the exercise of those rights; and Equality of opportunity and basic constitutional guarantees to all t zens regardless of race, sex, economic status, or difference of belief or opinion; and Whereas we have affirmed our support of the American democratic process of government and its clear separation and delegation of powers provided in the Constitution: Therefore We oppose measures calling for a constitutional amendment on reapre tionment of State legislatures which would not guarantee the protectic of the civil rights of all citizens. H |