Constitutional Law
Published Article
Arthur H. Lang, "THE MARSHALL DOCTRINE, THE TANEY DOCTRINE AND CALHOUNIAN FEDERALISM" THE DARTMOUTH LAW JOURNAL (Winter, 2012).
State cannot fire you for not working on the Sabbath
The constitutional protection against state action for not working on the Sabbath is a result Sherbert v. Verner 374 U.S. 398 (1963). The state terminated a Seventh Day Adventist’s unemployment benefits because she refused to work on Saturday. The Court said that if the religious belief is sincere and the action of government puts a substantial burden upon it, the government must show that its action furthers a compelling state interest and is pursued in the least restrictive manner. Constitutional rights do not apply to private businesses (unless they put you into slavery), but Congress used its interstate commerce power to protect against religious discrimination in the workplace in Title VII of the Civil Right Act of 1964.
The Right of Parents to Bring up their Children
The control of parents over the religion and upbringing of children was the original substantive right of liberty recognized under the Fourteenth Amendment because of its fundamentality to a free society. “The Court recognizes the right “to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Neb., 262 U.S. 390, 399 (1923).1
Teaching children religion and the maintenance of schools with curricula to serve that interest is a fundamental parental right. Pierce v. Society of Sisters, 268 U.S. 510, (1925), established the right of parents to send their children to private religious schools. Parental rights reached a pinnacle in Wisconsin v Yoder, 406 U.S. 205 (1972). Yoder restrained the state from forcing children in the Amish community to attend school after eighth grade. Compulsory education producing a population proficient in the skills and duties of citizenship is certainly in the interest of the state and well within its competency, but not as profound as the interest of the parent in passing religion to his or her child. The state could not force an Amish parent to educate his or her child, perhaps, even if the child wanted to go to school against the wishes of his parents. The State interest of educated citizenry, and even a child’s expressed interest in the State curriculum, might not overrule the religious interests of his or her parents, as it would “call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court's past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom . . . .”2 Id. at 231, 232.
Members of very few religious groups can assert the Yoder exemption from compulsory education laws. In Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987), parents of students in a private religious school objected to the necessity of certified teachers in their religious school, which unlike on New Jersey, was required in Iowa, and the “equivalent instruction” part of the compulsory education law, which unlike in New Jersey, was enforced in Iowa. Unlike the parents in Yoder, several members of this religious group sent their children to public schools. They owned radios and televisions. The federal circuit denied their exemption. This religious group was unlike whole Amish communities that lived in “distinct geographical areas of the state.” Id. at 496. The Amish were different because of their “very unique circumstances and their centuries-old insulated, isolated lifestyle.” Id. at 497. Nothing in the religious beliefs and goals of the Fellowship group differed from the goals of the state in secular education.
1 The Meyer Court compared the state proscribing the teaching of the German language in private schools to Plato’s Guardians. Mr. Justice Holmes, consistent with his other substantive due process dissents, viewed compulsory instruction in English within the competency of the State. “The test is ‘whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.’” Bartels v. Iowa, 262 U.S. 404, 412 (1923, Holmes, J. dissenting, citations omitted). Holmes admitted, that the First Amendment right of “free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used . . . .” Gitlow v. New York, 268 U.S. 652, 672 (1925, Holmes. J., dissenting). The Court combined the Pierce First Amendment right with the Meyer substantive right of parenting, “when the interests of parenthood are combined with a free exercise claim . . . more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required.” Wisconsin v Yoder, 406 U.S. 205 (1972). Query- Would Holmes have agreed in Yoder?
2 Mr. Justice Douglas dissented to clarify “if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents' religiously motivated objections.” Id. at 242 Mr. Justice Brennan and Mr. Justice Stewart agreed in their concurrences that if such was the case, parents might not prevail.
Freedom of Speech
“The liberty of the press is indeed essential to a the nature of a free state; but this consists in laying no previous restraint upon publications, and not in the freedom from censure for criminal matter when published.” William Blackstone, Commentaries on the Laws of England (1769). Government cannot prevent the word from being spoken, but it can prosecute once it is published. Material “shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion—the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.”
Speech is necessary for political discourse, necessary so that a minority can become a majority. Justice Brandeis wrote in Whitney v. California, 274 US 357 (1927), “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary…that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
In Abrams v. United States, 250 US 616 (1919), Holmes dissented saying, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
John Stuart Mill, concerning repression of speech, wrote in On Liberty, “Those who dissent from the opinion [are deprived], still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
The question arises, how we distinguish between legal and illegal speech. Chief Judge Hand of the Second Circuit wrote in Masses Publishing Co v. Patten, 244 Fed. 525 (S.D.N.Y. 1917), "those which have no purport but counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state…Yet to assimilate agitation legitimate as such, with direct incitement to violent resistance is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Hand distinguishes between incitement and agitation.
Holmes gave a different standard in Schenck v. United States (1919). “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic... The question in every case is whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." What if the person does not intend for the illegal act to result from his speech?
In Abrams v. United States, Holmes explained that a person cannot be held liable for the consequences of his speech in the same way that he can be held liable for his actions. “A person can be held criminally liable at Common Law, if he reasonably should have known that his action would have produced a result.” Thus one could be liable for homicide if he threw stones off the roof of a building in a busy city, whether or not he checked to see if there were people below. A reasonable person would have realized the danger in that action. However, “when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed.” A different standard must be applied to speech. Incitement is not be enough. There must be also intent, demonstrated by a clear and present danger of that intent to be carried out.
Again, in Gitlow v. New York (1925) Holmes rejected the simple application of Judge Hand’s standard of incitement. Since there was no danger of immediate danger violence, it cannot be said that the defendants acted to break the law. “If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration”
In Dennis v. United States 1951, a group of Communists were convicted for secretly conspiring to overthrow the government of the United States. Their views had not been offered for what Holmes and Brandeis called "public discussion" where the public is offered exposure to conflicting views so that it can choose intelligently among them. Freedom of speech means open, public discussion, not secret associate for the purpose of breaking the law. The Court quotes from Judge Hand. “In each case (courts) must ask whether the gravity of the evil , discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Judge Hand worried that Holmes’s “clear and present danger” rule gave judges too much discretion in banning speech. He focused of the form of the speaker’s language, what he believed to be a more objective test.
In Brandenburg v. Ohio 395 US 444, (1969) the Court seemed to take the best of Holmes and the best of Hand. The Court overturned the conviction of a Klansman for inciting violence. It said that the Ohio statute was too broad in it ban on speech. The Hand focus on objective words is the major consideration, yet the punishment of the harmless inciter is prevented by the Holmesian “clear and present danger” rule.