Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of
the American Government and offer contexts around the effects of government agencies in your
everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political
Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm fine. How are you?
J. Aughenbaugh: I'm good today, listeners. We get to continue our discussion of one of the most
important Supreme Court eras in the history of the United States, The Warren Court.
N. Rodgers: I have my boos and my yes lined up, ready to go.
J. Aughenbaugh: There are plenty. This is the thing. When you have a court era that is transformative,
there's going to be some good stuff and then there's going to be some bad stuff.
N. Rodgers: There are boos and yes's to go around.
J. Aughenbaugh: Excuse the lack of technical academic language.
N. Rodgers: Exactly.
J. Aughenbaugh: Boos, yes's, good stuff, bad stuff. But we're going to be covering both during this
podcast episode. Listeners, as we left off in our previous episode, we had just finished discussing how
membership changes really cemented the liberal direction of the Supreme Court led by Chief Justice Earl
Warren. Now, in that episode, we also discussed one of the reasons why Earl Warren was considered
such an effective Chief Justice, was his political background. Nia, you touched upon this in the previous
episode.
N. Rodgers: Yeah. His schmooziness was clearly evident when you win the State of California
governorship three times. If you're wondering whether that's an easy race to run or not, here, let us
inform you, it is not. It is not an easy race to run.
J. Aughenbaugh: By the way, listeners, we forgot to mention this in the previous podcast episode. When
he ran for the third term, he ran unopposed by the Democratic Party. He was that popular in California.
N. Rodgers: I didn't realize that.
J. Aughenbaugh: I completely forgot to mention that, but he ran unopposed.
N. Rodgers: Why bother. We know he is going to win.
J. Aughenbaugh: There were people in the California Democratic Party who wanted to go ahead and
nominate him as their party's nominee. Again, he led a state that was going through some significant
growth, and with growth comes growing pains.
N. Rodgers: But also with growth comes a better life for everybody. What they were seeing was, hey,
this is really good for everybody. What is it? A rising tide lifts all boats. You see some of that, but what I
think is also interesting is as a governor, and I think that Sandra Day O'Connor brought this to the court
as well, there is a certain level of practicality involved. This is how you have to get stuff done. And
governors, they start off with this [MUSIC] and then the state slaps them upside to back of the head and
says, get practical. How are we going to pay for this thing that you want? How are we going to deal with
fairness and equity, and ethical considerations for these things that you want? How are we going to do
all that? It becomes a practical question.
J. Aughenbaugh: On the court, might you at times have to speak in generalities and in vague terms to go
ahead and get as many votes as you think or want for a particular ruling. This is one of the things that a
number of scholars point out about his leadership. The thing that was very characteristic of Warren was
he focused on broad ethical principles. He left a lot of the details to the other justices in his, if you will,
coccus. That's what allowed him, for instance, to be able to get either unanimous Supreme Court votes
or near unanimous decisions. To give you an example, Nia.
N. Rodgers: We see him doing this broad thing and we see J. Rob later doing a very narrow.
J. Aughenbaugh: Narrow thing, incremental change.
N. Rodgers: Warren is like, leap. Let's all leap.
J. Aughenbaugh: But how we got there, he oftentimes left it to the other justices. To give you an
example.
N. Rodgers: Y'all figure out how you're going to get to the other side of this canyon.
J. Aughenbaugh: Well, think about, for instance, Earl Warren wrote the majority opinions and some of
the most groundbreaking decisions of that Supreme Court here, Brown v. Board. Now, Brown v. Board
was a unanimous decision that held that segregation in US public schools was unconstitutional.
N. Rodgers: Good.
J. Aughenbaugh: Now, to get all 8 others to sign on, he couldn't get too specific or he might lose some
of them. The majority opinion was written in many ways for lay people, in broad terms that most
Americans could understand. The basic idea was, if you have separate schools, those who are forced to
go to the separate schools frequently felt like they were inferior, and that's unequal. That's not fair.
N. Rodgers: It's not American.
J. Aughenbaugh: Yes.
N. Rodgers: It's not American to make people feel that way.
J. Aughenbaugh: Now, constitutional law scholars hate Earl Warren's majority opinion in Brown v.
Board, because it's not part of some grand constitutional law theory. He spends very little time talking
about how the federal government was actually sticking its nose into a policy area that historically was
the domain of state governments. Why no discussion of federalism? He spent very little time talking
about how the Supreme Court was overturning Plessy v. Ferguson. I mean, he basically ignored
precedent.
N. Rodgers: And then didn't discuss why?
J. Aughenbaugh: Yeah. He spent very little time talking about constitutional-wise. He talked about
political, practical-wise. Why this should make sense to the public? Why this should make sense to
politicians who would have to implement the ruling? Broad ethical principles. But also let's be very clear,
he could be so effective as a chief because the Court's membership was not all that divided. Let's face it.
It's a heck of a lot easier to go ahead and get really major constitutional rulings when most of your
colleagues basically agree with you. They did.
N. Rodgers: To me at least, and maybe this is not how I should think about it, so you feel free to correct
me. But I think too that when you look back at some of these and you read some of the opinions, at
least I am not a scholar, so I'm acknowledging that, but about half the time, I don't really understand
what the legal scholarship is behind what's happened. I agree with the outcome. I like where we went,
but I don't really understand how we got here, which would make it hard for any case to use that case to
build its own case, which is what we do with precedent. Precedent is when you set a precedent, then
the next guy gets to say, hey, in Aughenbaugh v. Rogers, it was found that too much coffee can destroy a
brain. In my case, I want to apply that to tea or whatever. But if there's no clear legal steps that you can
follow, then it's really hard to use that case to lay other cases on top of it.
J. Aughenbaugh: Yes.
N. Rodgers: Am I accurate that that is problematic in some of these cases?
J. Aughenbaugh: Yeah, because part of what you're discussing, Nia, is, are you a person who focuses on
outcomes or are you a person that focuses on process?
N. Rodgers: I tend to focus on process.
J. Aughenbaugh: Many lawyers focus on process.
N. Rodgers: 'Cause if the process is fair one time, then it will be fair most of the time.
J. Aughenbaugh: Most of the time. That logic then can be used in other areas of law because that's what
lawyers want, that's what frequently lawyers do. They make analogies. That's why, for instance, the
LSAT test and many bar exams have a logic section. Can you take the logic in one area of law and apply
to another area? But The Warren Court frequently went ahead and crafted decisions that many people
were like, hey, we like the decision.
N. Rodgers: We like taking segregation out of schools. We like that, but we don't really understand how
you got here and we don't know how we're going to apply it in other cases.
J. Aughenbaugh: Why you are also wanted to overturn a precedent that existed for decades that people
relied upon? That's one of the measures of judicial activism. How willing is a court to overturn its
existing precedent? Why? Well, precedent is important for establishing consistency and stability in the
law.
N. Rodgers: Continuity.
J. Aughenbaugh: Yeah. The Warren court's logic was, hey, many of these rulings led to practices in
government institutions that were racist, that treated people unfairly, that made it difficult for people
who were accused of crimes, and if the people's elected representatives aren't going to make the
changes, then we have to.
N. Rodgers: Forgive me for throwing out a founding document. We hold these truths to be self-evident,
that all men are created equal.
J. Aughenbaugh: That's right.
N. Rodgers: Warren Court is trying to live up to that in a way that previously we have not seen in the
courts. If all men are created equal, then all men should have equal opportunity at the ballot box, at a
job, at a home, at a life.
J. Aughenbaugh: A good education, etc.
N. Rodgers: All of the things that are given to one should be given to another, or made available. Not
given to, made available on an equal basis.
J. Aughenbaugh: This also points to the fact that now you're talking about broad philosophical
commitments, the spirit of the law, whereas many conservatives are like, but what does the letter of the
law say? Again, for our listeners, The Warren Court really represents what becomes known as loose
construction of legal documents because they aspire to what is the broad commitment. Nia, you just
mentioned the key phrase of the Declaration of Independence, all men are created equal. Well, for
liberals, that's what you aspire to and that gives grounds for an unelected body like the Supreme Court
to go ahead and rule in all kinds of new and different ways.
N. Rodgers: Society changing ways.
J. Aughenbaugh: Yeah. As society changes, the court is updating it. But for conservatives, what do the
words actually mean? How do you apply that in process? That's one of the big rubs that arise between
The Warren Court and eventually what becomes the reaction to The Warren Court. No, you made a
really good point. Now, let's talk about The Warren Court's judicial philosophy. Scholars have attempted
to make sense of this. One of the common ways of making sense of The Warren Court's judicial
philosophy is that The Warren Court is basically the Carolene Products' court. For those of you who
don't know, Carolene Products was a Supreme Court decision decided in 1938. In that case, there was
an infamous footnote number 4. The majority opinion, by the way, was written by Harlan Fiske Stone
who eventually becomes chief justice. Footnote number 4 says that the court will assume that economic
regulations are constitutional. Yeah, no deal. But the court would begin to be skeptical of laws that
targeted discrete and insular minorities. What does that mean in practice? The Warren Court begins to
go ahead and look very critically at government laws that made it difficult for people to access civil
liberties written in the constitution. If you have freedom of speech, well, why is the freedom of speech
of communists being targeted during the Cold War? Eventually, The Warren Court is like, no.
N. Rodgers: Communists are allowed to say the weird stuff they say, that's fine.
J. Aughenbaugh: That's fine.
N. Rodgers: I shouldn't say weird. Weird in terms of capitalism. That would have an effect on McCarthy
and McCarthy's whole witch-hunty, red-scary type thing is Supreme Court saying, no, if you're a
communist, you're allowed to be a communist. That's part of welcome to America where there is free
speech. You can be in favor of whatever thing it is you want so long as it does not impinge upon the
rights of others.
J. Aughenbaugh: That's right. Eventually, you see The Warren Court get rid of the clear and present
danger test, which made it really easy for the government to target speech by folks like communists and
socialists. But another example of The Warren Court becoming the Carolene Products' court is The
Warren Court made it very clear, if the political branches were not going to be responsive to minority
populations, then the Supreme Court was going to step in. We see this with segregation.
N. Rodgers: If you gerrymander a district such that you get only white people in a district and you can
put a huge number of black people in a district, so you limit the number of representation that black
folks have across all the district, then that's a no go. The federal government can say, no, you cannot do
that. You can't gerrymander people out of their vote, basically.
J. Aughenbaugh: A good example of this was The Warren Court's decision in Baker v. Carr from 1962. I
was going to mention this in just a few moments.
N. Rodgers: We'll get to that.
J. Aughenbaugh: We'll get to that. But then discrete and insular minorities. Initially, discrete and insular
minorities were religious minorities, like Jehovah's Witnesses, or in some jurisdictions in the United
States, Catholics, Jews. But The Warren Court expanded that to people of color, criminals.
J. Aughenbaugh: I mean, if you think about it, statistically in the United States, the non criminal
population is greatly outnumbers the criminal population.
N. Rodgers: Thank goodness.
J. Aughenbaugh: Well, particularly back then when we had fewer criminal statutes. I mean, today, we
have so many criminal statutes that most people who you come in contact with Nia have at least
inadvertently broken the law, even if they didn't intend to do so. Because we have so many criminal
laws.
N. Rodgers: Sivers driving a car has sped?
J. Aughenbaugh: Yes.
N. Rodgers: Almost everybody.
J. Aughenbaugh: How many of us have Jay walked even if we didn't think we were Jaywalking?
N. Rodgers: You didn't walk all the way to the end of the block to the crosswalk. You're just like, look left
and right and go down.
J. Aughenbaugh: Technically, we're breaking the law. On a Saturday morning, if I'm blaring my music as
I'm like, cleaning the house, chances are, I'm disturbing somebody's peace.
N. Rodgers: You're breaking a sound ordinance somewhere.
J. Aughenbaugh: But, again, if you think about, expanding the rights of those accused of crime, Well,
now you're talking about something that's, protected by a number of amendments in the US
Constitution. Of people who typically, we're like, well, hey, you should be willing to do the time if you.
N. Rodgers: There crime If you do the crime, you got to do the time. But if we don't protect criminals,
then we haven't protected anyone. That's Because the system needs to work for the least among us.
J. Aughenbaugh: Yes.
N. Rodgers: That it works for everybody. That's basically what the Warren Court is getting at, is things
like the Miranda, which we're going to talk about in a little bit, but like other things or Isn't the Warren
Court the one that gets rid of red lining?
J. Aughenbaugh: No, that actually first started with the Fred Vincent Court, Shelley versus Cameron,
where they said that State Courts cannot enforce housing covenants. This is one of the themes in the
Warren Court. the right to belong, This is what scholar Rebecca Zitlow mentioned, The Warren Court
expanded the rights of belonging, rights that promote an inclusive vision, of who belongs to the national
community, and facilitates equal membership in that community.
N. Rodgers: Ideal gold.
J. Aughenbaugh: But that exposes attention because so much of our political, economic and social lives
are controlled not by the national government, but by what level of government?
N. Rodgers: State government.
J. Aughenbaugh: This becomes one of the fault lines, see?
N. Rodgers: Well, when you tell people they have to desegregate the schools. That's You're telling the
states they have to do that, 'cause the schools are not segregated by the federal government. They are
segregated by the state government, which is why in some states, there was no segregation in schools.
In other states, there was.
J. Aughenbaugh: Well, there was not Djure, but as many Northern states finds in the 1970s, there was
de facto, which then you began to see pushback by even liberals, in northern states to federal court
saying you have to desegregate then remember many of them were like, but we don't have stated
dejure segregation policies in many federal courts. But following the logic of the US Supreme Court, you
de facto do. Because you have 80% of all students of color going to these three schools and you have
75% of all white students going to all these schools. That's segregation,
N. Rodgers: You've just done it with neighborhoods instead. Instead of schools.
J. Aughenbaugh: Yes.
N. Rodgers: Now you got a bus kids across town. You got to bus kids and move them around, and then
you get all the drama with that.
J. Aughenbaugh: You want to talk about unifying parents of students of color and parents of Caucasian
students. Mention buzzy.
N. Rodgers: Buzzy going to bus your kid across town, no, you're not.
J. Aughenbaugh: That will unify all parents.
N. Rodgers: They all hate it.
J. Aughenbaugh: I don't want my kid on a bus 45 minutes in the morning or in 45 minutes in the
afternoon. Another way to think about the Warren Court, the Warren Court was really essential in
incorporating the Bill of Rights as enforceable on the states. This was huge, because we talked about this
in previous podcast episodes. Prior to the 1920s and the 1930s, the Supreme Court basically said that
the Bill of Rights were enforceable on the federal government, meaning that state governments, could
basically ignore, for instance, the First Amendment. Or make it really difficult for you to achieve the First
Amendment. The Warren Court, they put the hammer down. They put their foot on the accelerator and
they said, The Bill of Rights, apply to both the federal government and the state governments.
N. Rodgers: Can I?
J. Aughenbaugh: Yes.
N. Rodgers: There's another thing that you have in the notes that I wanted to make sure we mentioned,
and that is the Warren Court, overall, was trying to make rules apply in every state equally?
J. Aughenbaugh: Yes.
N. Rodgers: Because if you allowed states to make those decisions, you got wildly uneven treatment. Of
individuals, of companies, of everything. They were like, no if you live in Missouri, if you live in Texas, if
you live in New York, if you live in California, the law should apply centrally and equally to all of you. It
should not be that you get to state shop where you live in order to be able to avoid certain laws. Part of
that is the commerce clause. Part of that is the [inaudible] . Because if you allowed companies to pick
their own fertile ground in which to run their businesses, dude, we would have a mess in this world of
wellcompanies skirting laws because some states would be more lax than others.
J. Aughenbaugh: That right. That's what happened before 1937.
N. Rodgers: It's one of the things that drives the car companies crazy is that California laws are very
strict about things like emissions and stuff like that. They also are the largest market for cars in the
world. If you want to sell your cars, they need to fit California law and it drives everybody else crazy, but
there's some argument there about whether that's fair or not. Should California be able to set those
standards for the rest of us? If the rest of us don't care about emissions or we don't care about seatbelts
we don't care about.
J. Aughenbaugh: That's why when California gets waivers or can influence, for instance, EPA emission
standards. Many other states are just like, but we don't want to comply. But according to the Warren
Court, Congress, per its commerce clause authority can force you to comply. Again, this is one of those
tensions that's hardwired into the US Constitution.
N. Rodgers: It's a good thing because it keeps us talking, it keeps us arguing about it. It keeps us having
this discussion between what is the place of states rights and what is the place of federal rights? How do
we balance those two things to make sure that we are, in fact, a perfect union or more perfect union, I
should say, because we're not perfect union.
J. Aughenbaugh: Incorporating the Bill of Rights, again, touches upon what you just mentioned. Because
that's where the Supreme Court used the due process clause of the 14th Amendment and said, Hey,
freedom of speech should mean the same thing in New York as it does in Mississippi. Your right to
exercise religious beliefs should mean the same thing In Utah.
N. Rodgers: In Utah that it means in Ohio.
J. Aughenbaugh: That's
N. Rodgers: If you like otherwise, otherwise, we don't have a United States. We have 50 states loosely
connected to each other with a mild federal government. Different which is much harder to save in
United States.
J. Aughenbaugh: Well, that's the difference between a federal government and a confederation. Which
is what existed before the Constitution.
N. Rodgers: We tried that. I didn't work. We need the discipline. We need the discipline. If you're a
reader of the book of the Bible, you will find that rules, have to be set out because otherwise, people get
all kinds of conniptions and make up their own rules if a set of rules is not handed down from
whomever. That tradition, the founders believed in that. They believed in the idea of a set of rules must
guide us one ring to rule us all, if we want to go Tolkien on this. There can't just be. We'll all just figure it
out. Well, then why are we United States at that point? Why aren't we 50 little countries that argue
about borders?
J. Aughenbaugh: I know for some of our listeners, you're going to be like, once again, we're going back
to the debates between the federalists and the anti federalists.
N. Rodgers: We live there.
J. Aughenbaugh: We live there.
N. Rodgers: We live there now. We lived there then, 250 years has not changed that debate except how
we talk about it. That's location, now we all yell about it on the Internet instead of going to a tavern to
yell about. I was thinking about that the other day. The Internet is just an old school tavern, Where you
go into the tavern and you get your beer, and then you sit there, and then you start yelling at each other
about what it means to be the federal government.
J. Aughenbaugh: It reminds me of something and I apologize. Again, I grew up in a small town. But you
would sometimes, go to the courthouse, to do some government transaction, and you would have
people on the sidewalk leading up to the courthouse fussing at one another, They would have placards.
They would be yelling at one another. The internet is that place.
N. Rodgers: Is that place. You just have to do it without leaving your house. You get to wear your
pajamas and yellow.
J. Aughenbaugh: To finish up this episode, and this is going to take a few minutes, this is the Warren
Court.
N. Rodgers: They did a lot.
J. Aughenbaugh: They did a lot. I'm going to go through some of the most common.
N. Rodgers: They did a lot of big stuff. One thing if a lot of courts did a lot. Marshall's courts did a lot.
Lots of courts did a lot. But these are cultural altering, societal altering things.
J. Aughenbaugh: They they have impact across the country.
N. Rodgers: Over generations.
J. Aughenbaugh: Ras, we're still talking about some of them. The big one, of course, and it was in the
Earl Warren's first year as Chief Justice, Brown versus Board. Holding that segregation in public schools
was unconstitutional. But that wasn't the only racial case that had a huge impact.
N. Rodgers: That's the one that had the widest impact on the most people because every kid was
affected by them.
J. Aughenbaugh: But they follow it up, in the late '60s, by saying in Loving versus Virginia Nia, laws that
ban what are also unconstitutional?
N. Rodgers: Misgenation. It's hard for me to say, African Americans and whites marrying.
J. Aughenbaugh: Yes.
N. Rodgers: Or interracial marriage. I shouldn't say it's just those because I think it also affected Native
Americans as well. Interracial marriage.
J. Aughenbaugh: In some Western states, the ban was also directed.
N. Rodgers: Towards Asian.
J. Aughenbaugh: In Asian Americans.
N. Rodgers: They got rid of the rules.
J. Aughenbaugh: Banned interracial marriage.
J. Aughenbaugh: That violates the Equal Protection Clause of the 14th Amendment. You're talking about
two significant institutions in American life. Marriage? in schools.
N. Rodgers: That that still hold to these we no longer, as a society, prevent people from marrying
whomever they wish to marry. Now we don't prevent it gender wise either, but we did for generations,
prevent it racially. We don't prevent kids from going to school together. In fact, we encourage kids to go
to school together of a variety of backgrounds because it is a better learning environment. That's a big
change. That's a big change in the lifetime of people who are still alive. My mother and your mother
went to segregated schools.
N. Rodgers: We in our very early childhood started in segregated schools. At least I did because North
Carolina did not desegregate until it was absolutely forced to in 1971.
J. Aughenbaugh: I grew up in a town that was, nearly 98% Caucasian. That it wasn't until I went to
college to where I would be in a class, and the majority of the students were non white students.
N. Rodgers: Big difference in society. Huge difference in society.
J. Aughenbaugh: Next one, 1965 Griswold V, Connecticut, the Supreme Court, for the first time, says
that the Constitution protects, a general right to privacy. Now, this is one of the most highly criticized
majority opinions in the history of the Supreme Court, even though most of us generally agree that
there should be a right to privacy.
N. Rodgers: But I don't think it's constitutional.
J. Aughenbaugh: It's not constitutional. I love to see an amendment.
N. Rodgers: I think it's ethical. I think it's moral, but I don't think it's constitutional. There's nothing in
the Constitution that says, I'm not sure the founders expected a right to privacy.
J. Aughenbaugh: I would love to see as much effort spent on creating a specific right to privacy in the
Constitution. I would love to see that before I pass from this Earth, because I happen to believe in it. As
you pointed out, morally.
N. Rodgers: Ethically, I have no problem with you do you, baby, as long as you're not hurting anybody.
J. Aughenbaugh: Anybody else?
N. Rodgers: You do you. I don't want to know what you do or who you do it with. That's not up to me.
But I don't think I disagree with them, but it's constitutionally protected.
J. Aughenbaugh: Yes.
N. Rodgers: It's a boo for me, by the way. If we're keeping up with yes and boos, I've got two Yas and
one boo.
J. Aughenbaugh: It gets a boo for me because I hate the majority opinion by Douglas. This idea that
privacy d from the emanations of penumbras of various amendments to the Constitution.
N. Rodgers: No.
J. Aughenbaugh: It was a BS constitutional theory when he wrote it, and according to most
constitutional law scholars, it's still BS. I'm sorry.
N. Rodgers: Again, I like the outcome. I don't like how we got there. I don't think how we got there is
accurate.
J. Aughenbaugh: The next one, really chases conservatives. It occasionally chases liberals when they
don't like Supreme Court rulings. Cooper versus Aaron, 1958, states are bound by the decisions of the
Supreme Court and cannot ignore them.
N. Rodgers: Can I just say it takes us 200 years to get to this? Which is a little sad. But it puts into reality
what has been in practice, which is that, generally speaking, we all say, well, if the Supreme Court said it.
J. Aughenbaugh: The thing that probably bothers a lot of people, and again, they generally accept the
outcome, Nia. It's the fact that, in that case, the Supreme Court didn't have to say it. It was almost
gratuitous. They wanted to send a very clear message to the state of Arkansas, "Hey, you guys have to
desegregate because we said so." They could have merely just went ahead and just rested it on the
Supremacy Clause. But no, they couldn't help themselves. They were like, we have the final word.
N. Rodgers: Don't make me tell you again. Why? Because I said so. That's a very parental response. I'm
sure that Mark occasionally has asked you something, why? And you've said, Because I'm the dad.
J. Aughenbaugh: Yeah, I'm the dad.
N. Rodgers: Because I'm the dad and because I'm the one paying for this house, which is why you don't
get to draw on the walls or whatever.
J. Aughenbaugh: We're still debating this. This is the thing. We're still debating it.
N. Rodgers: We're still fighting about some things. In some instances, we're not fighting about anymore.
We are not fighting about desegregation of schools anymore. We thought it out and much to the
chagrin of people who didn't want desegregation, no disasters fell forth. They were expecting world
ending consequences. Nothing happened, and everybody went, "We fought about this ridiculously over
nothing." However, that is not the same for the next couple of cases.
J. Aughenbaugh: The next one. The Warren Court ruled in two different cases, Engel versus Vitale and
Abington School District versus Schempp. I just love that name Schempp. It sounds like a character from
the Stooges. Anyways, public schools cannot have official prayer, the former case. Mandatory Bible
readings are unconstitutional in the latter case. We're still debating this.
N. Rodgers: I'm yeas on those because I don't think it's fair to students who either aren't religious or
who belong to a religion that is not the religion being practiced to force them to engage in the religion
that's not their religion. I don't think you should make kids read the Bible if they're Muslim, if they're
Hindu, if they're atheist, if they're whatever, and that's not their jam, they shouldn't have to read the
Bible, just like they shouldn't have to pray. I think it's nice when they say, we're going to give you a
moment of silence and you do whatever you want. Take a nap, you can pray, you can do whatever. That
seems like a more fair and reasonable approach to that to me. But we're still having this discussion
about, can this happen at a football game? Can this happen in an outside school related activity, but
they're not at school. There's all these.
J. Aughenbaugh: It's still ongoing, and I know for some of our listeners, we're going to be like, I'm either
against it or I don't see what the big deal is. But I'm telling you, you go to certain parts of the country,
particularly in rural areas.
N. Rodgers: That's a big deal.
J. Aughenbaugh: It's a huge deal.
N. Rodgers: It's a big deal.
J. Aughenbaugh: We've already talked about the doctrine of incorporation. The Warren Court really
expanded it.
N. Rodgers: Are you going to talk about Mapp and Miranda?
J. Aughenbaugh: Miranda is we've already mentioned.
N. Rodgers: Everybody knows Miranda. Miranda is your right. You have the right to be quiet and you
should. It doesn't say that in there, but that's what it should say. You have the right to be quiet and you
probably should. Don't say anything except, I would like to speak to a lawyer, please. That is all you
should be saying. But Miranda, also, what's important to me about Miranda, and I'd like to reinforce it if
you don't mind briefly is they say to you, do you understand the rights as I have read them to you?
Because what they need to do is make sure that one, you understand English enough to understand
what's been said to you and two, that you have the mental faculties to understand what's been said to
you. Because we have a lot of cases where people go to prison and they are not fully cognizant adults.
The chances are good that they didn't understand what was being said to them, and there's a lot of
other issues with that. But what about Mapp?
J. Aughenbaugh: Mapp versus Ohio, most Americans, most lay people in the United States, know the
result of this case. It's the infamous exclusionary rule. The Fourth Amendment prohibits the government
from engaging in unreasonable searches and seizures.
N. Rodgers: They have to get a warrant to search your house.
J. Aughenbaugh: That's right. The court in the Mapp case basically created a prophylactic device. They
went ahead and said, If cops engage in illegal or unconstitutional methods in gaining evidence, which is
later used against you in a court of law, that evidence should be thrown out because it violates the spirit
of the Fourth Amendment.
N. Rodgers: If you're wondering where the phrase the fruit of the forbidden tree comes from, it is this
case.
J. Aughenbaugh: It's this case.
N. Rodgers: If you have stolen an apple off of a tree, you cannot eat it. You should not be able to gain
nutrition from it because you stole it. If the cops don't have a warrant, they kick in your front door and
they find something that then gets used against you in court, you can say, there was no warrant. They
had no reason to believe that thing was in my house. It should not be allowed to be used against me in a
court of law. You'll see this often with videos or hearsay testimony is another one of those things.
J. Aughenbaugh: This is important in many criminal prosecutions.
N. Rodgers: Potentially protects criminal but protects those of us that aren't criminals.
J. Aughenbaugh: Again, this is one of the fault lines between strict constructionists of the Constitution
and loose constructionist. A strict constructionists are where does it say in the Fourth Amendment, the
exclusionary rule. Whereas loose constructionists are but the basic idea of the Fourth Amendment is
this. We're still debating this.
N. Rodgers: Still debating this. This debate comes up on a regular basis.
J. Aughenbaugh: There are justices on the current Supreme Court.
N. Rodgers: So does Miranda. Miranda still comes up, even though everybody thinks they know.
J. Aughenbaugh: You asked a strict constructionist like Clarence Thomas if he thinks Miranda versus
Arizona is good Supreme Court case law, and he would tell you, absolutely not. Why? Because the
Constitution never requires the government to inform you of your rights before you interact with the
government. It never says that.
N. Rodgers: Because strict constructionists go with the language and this constructionists go with but
ethically, they should remind you.
J. Aughenbaugh: Yes. It is.
N. Rodgers: Because it's the right thing to do, to say to you, "Hey, you know you don't have to talk to
us." I mean, you should because we're your friends. Because they're allowed to lie to you at any time,
cops can lie to you.
J. Aughenbaugh: The easiest way to remember strict constructionists, letter of the law. Loose
constructionist, spirit of the law. If you ever heard the expression, well, there's the letter of the law, and
then there's the spirit of the law. That's what that phrase is actually getting at. We got a couple more.
N. Rodgers: If the speed limit on the highway is 55, 55 is the letter of the law.
J. Aughenbaugh: Yes.
N. Rodgers: Fifty six probably won't get you a ticket. It's the spirit of the law. But when you get up to 65,
66, now the cops are like, now you're just.
J. Aughenbaugh: There's no spirit of the law here, and you quite obviously have violated the letter.
Really, I don't have discretionary choice here. The next one. The Equal Protection Clause, which many
people make reference to, is in the 14th Amendment. It would seemingly only apply to which
governments? States.
N. Rodgers: State. Sorry.
J. Aughenbaugh: Fourteenth Amendment. The big question was.
N. Rodgers: Does it apply to the federal rule.
J. Aughenbaugh: To the federal government, and this becomes really huge because the federal
government, as we move into the 1960s was greatly expanded compared to when the Fifth Amendment
was written and ratified in the early 1790s. The Supreme Court in Bolling versus Sharpe said, "Well, of
course, the Equal Protection Clause applies to the federal government per the due process clause of the
Fifth Amendment." This drives strict constructionists just absolutely bonkers because they're like,
there's no specific reference to equal protection in the Fifth Amendment. You're making this stuff up
now. But this is the Warren Court saying. Again, this goes back to something you mentioned previously,
Nia. This is the Warren Court saying, "Practically, how can we force one level of government to give you
equal protection, but not the other?" It's like the flip side of incorporation. Of course, the Bill of Rights
apply to state governments. You can't have this dichotomy to where one level of government has to
honor your civil liberties, but the other one can play fast and loose with them.
N. Rodgers: I have to say I agree with that. Because it would seem weird to me that that would not be
the case.
J. Aughenbaugh: The next one apportionment. We've already talked about this, Baker v. Carr, Reynolds
v. Sims. First of all, voting in an election cases can be or challenges to voting in election laws can be
brought to federal courts. That's Baker v. Carr. Before Baker v. Carr, voting election cases were
considered political questions, meaning only the political branches could solve them. The federal courts
would not have anything to do with them. Baker v. Carr says, no, they're constitutional questions.
Reynolds v. Sims doubles down and says, by the way, not only can you bring your challenges, but one of
your specific challenges, apportionment cases, requires one person, one vote. All of this gerrymandered
redistricting stuff that really harmed voters of color, urban voters. We have a standard now. Again, strict
constructionists are like, "Where does it say in the Constitution, one person, one vote?" We're making
this up on the courts, and it's still being challenged today. Guess what's going on in this year alone in the
United States. At least a half a dozen states because of more recent Supreme Court rulings have allowed
for obvious redistricting based on gerrymandered principles.
N. Rodgers: On racial gerrymandered principles in some instances.
J. Aughenbaugh: Again, that's part of the difficulty of the courts being involved with this, because if you
assume that, for instance, most voters of color are Democrats, how do you untangle districts that
benefit Democratic voters versus voters of color. That's part of the difficulty, we're still talking about
this.
N. Rodgers: The Warren Court opened as many cans of worms as it settled. Can you talk about Gideon?
J. Aughenbaugh: Gideon versus Wainwright. They are a bunch of criminal.
N. Rodgers: By the way, going to visit both Gideon and Wainwright as individuals in our upcoming series
whose names you should know. Gideon and Wainwright. Sorry. As people whose names you should
know and why. But we're going to talk about them as people. This is about the case, not about the gap .
J. Aughenbaugh: Now I'm going to shift to specific areas of law. Nia mentioned a number of cases
concerning criminal procedure. Gideon versus Wainwright decided in the early 1960s, was a case about
your access to legal counsel. Included in which amendment?
N. Rodgers: Four?
J. Aughenbaugh: Not four.
N. Rodgers: Is it five? Help me, Aughie. Don't let me hang here.
J. Aughenbaugh: Sorry, as I'm having a coffee fit.
N. Rodgers: I don't know. I'm sorry. I don't have the memory. I don't know.
J. Aughenbaugh: It's the sixth. There are four amendments that basically deal with criminal procedure in
the United States Constitution. Fourth, which you already mentioned, search and seizure. Fifth, due
process of law, the privilege against self incrimination. The Sixth Amendment, though, got the laundry
list. You had a right to a jury trial, a jury of one's peers.
N. Rodgers: Is that speedy in that one?
J. Aughenbaugh: Yeah, speedy in public trial. Very good. But the last one is access to legal counsel.
N. Rodgers: If you cannot afford an attorney, one will be appointed for you.
J. Aughenbaugh: At no cost to yourself. But before Gideon versus Wainwright, many states basically
only provided legal counsel if you were charged with a serious crime, a felony. A misdemeanor, in some
states, you were left on your own.
N. Rodgers: If you couldn't afford an attorney to talk you through jaywalking case. You just went to jail
for jaywalking for a month or whatever it was.
J. Aughenbaugh: Yeah, because you could go into a courtroom and end up seeing a bunch of stuff that
ends up upsetting the judge, and the next thing you know you're spending the next five weekends in
some county jail.
J. Aughenbaugh: After Gideon versus Wainwright, the Supreme Court said, it applies to any type of case.
This is huge.
N. Rodgers: If we're talking about criminal procedure, my least favorite case.
J. Aughenbaugh: Oh, my God. I know where you're going.
N. Rodgers: It's Terry v. Ohio.
J. Aughenbaugh: Terry v. Ohio.
N. Rodgers: I hate Terry v. Ohio. I hate that if you look suspicious to a cop, that they can pat you down.
They can do what's called the Terry pat down, which is they can pat down your pockets to see if you
have anything in your pockets. Oh, look, I found a gun. Now I'm going to arrest you on gun charges. Like,
no, you did not know I had a gun. I didn't look like I had a gun. I wasn't wearing a sign that says, hey,
man, I got a gun in my pocket. Sorry. No, I'm not going to let myself get wound up about that, but Terry
is a huge case in terms of allowing the police to search your physical person.
J. Aughenbaugh: That's right.
N. Rodgers: If you give them "reasonable suspicion". You look like you're doing something sketchy. Now,
was Terry doing something sketchy? Probably. He was probably casing that jewelry store because he
probably was going to break into it. I don't know, because I don't know, Mr Terry. But what I do know is
that that case leads eventually to stop and frisk. It leads eventually to other things.
J. Aughenbaugh: As a general rule of thumb, the Warren Court, in terms of criminal procedure,
expanded criminal procedure rights for those accused of crime.
N. Rodgers: Except [OVERLAPPING].
J. Aughenbaugh: That's all right. That's where I was going. One of the notable exceptions is Terry v.
Ohio. By the way, the Warren courts also the first United States Supreme Court who established that
government officials deserve qualified immunity from lawsuit.
N. Rodgers: Which is a mixed bag. There's some real good things about that allows people to do their
work and to be safe doing their work, but there's some bad things because we have some people who
take that to its extreme.
J. Aughenbaugh: That's right.
N. Rodgers: Because humans.
J. Aughenbaugh: In Terry vs Ohio, again centers on the Fourth Amendment. The question becomes, if
the police, without a search warrant, stop and pat you down, is that an unreasonable search? What the
Warren Court said was, if they can articulate a reasonable suspicion that you are about to engage in
criminal behavior or threaten the safety of either law enforcement or the public, then they don't have to
get a search warrant. It does lead to stop and frisk.
N. Rodgers: You look like a guy who's about to commit a crime.
J. Aughenbaugh: Yes.
N. Rodgers: I must stop you, go through your pockets and oh, look, I found weed. I found whatever.
Now you are a criminal, and I can do whatever I want. I'm not a fan of that. In this case, giant boom.
J. Aughenbaugh: Yes.
N. Rodgers: But they do a huge amount with racial segregation and removing racial segregation. They do
a huge amount with voting. They do some really positive stuff, but.
J. Aughenbaugh: In regards to free speech, they just expanded free speech dramatically. This is probably
the last, if you will, era or decade, where you saw liberals so openly embrace freedom of speech.
N. Rodgers: Freedom of speech is again one of those things we're talking about still. It's funny how you
keep saying that, because we are still, where's the line between free speech and hate speech? Where's
the line between free speech and dangerous speech or clear and present danger speech?
J. Aughenbaugh: Where's the line between pornography, which historically has been protected by the
First Amendment, versus obscenity, which isn't.
N. Rodgers: The Internet has opened up an enormous can of free speech worms. Who's responsible for
the material that you put up on YouTube? Is it you? Is it Google? How does that play into all of this?
J. Aughenbaugh: But the one big one I wanted to go ahead and mention in regards to freedom of
speech is New York Times versus Sullivan. This is where the Supreme Court in 1964 established the
absent malice standard. Can you sue a speaker for defamation? What the Supreme Court said was, if
you're a public figure, you have to be able to demonstrate that the speaker, in this case, the New York
Times, knew, in other words, they had malice. They knew what they were printing was wrong, and they
printed it anyways.
N. Rodgers: It's very different standard than in other countries. The standard is much lower in other
countries. You can say I was hurt, and the court can say the person should be held. But here, you can
say, I was hurt, and they go, so? If the New York Times didn't know it was a lie, by the way, if you ever
want to watch a movie on this Absence of Malice with Paul Newman. Is one of the best movies. It's so
good. It's about this question about whether printing something that turns out to not be true and is, in
fact or is true, but it's very harmful to an individual. Did you have the right to print it? Is huge.
J. Aughenbaugh: Where this is really become an issue is the fact that federal courts have expanded who
the standard applies to. In New York Times versus Sullivan, it was to "public figures." Government
officials. Federal courts have expanded it to semi-public figures, politicians, or excuse me, actors,
musicians, athletes. Where do you draw the line? Because the standard is much easier for, say, for
instance, a person like you and me, Nia, because we're not "public figures."
N. Rodgers: Although you are. No, as a college professor, and that's one of the arguments in higher
education. Do college professors have a right not to be taped in their classes and have those things put
out without context? Because sometimes I've heard you in class. Some of the stuff, if somebody clicked
it, they could make you sound horrible. You know what I mean? Probably that's going to be the next line
where that goes is, are you allowed to clip what a professor says in class and make them sound a certain
way when you, in fact, know that is not how the person perceive the world? [OVERLAPPING]
J. Aughenbaugh: The right of the public to record government officials. Because technically, I am a
government official.
N. Rodgers: When you're teaching, theoretically, your classes should be recordable and listened to by
whomever. But without context, some of that stuff could be pretty damaging. I'm saying, that's the
problem is context, if a newspaper prints something Aughie says and they said, right before it, he said
this and right after he said that, then they are immune from any danger because they have placed it in
context and they're allowing the listener to say, wow, he really left up there in the middle, didn't he? But
he's fine, otherwise. But we see that now on the Internet, with people getting clipped and then things
getting shown, and there's some real danger in that. The next thing that I think you're right will be
influencers and people on the Internet, and how's that all going to be affected? But the Warren Court is
a fascinating court. It expands so much, and it does it so quickly that, like you said, we're still arguing
about it 50 years later. We haven't settled some of these questions.
J. Aughenbaugh: What we're going to see listeners, and this is foreshadowing for the remaining three
episodes in this series, The Burger, Rehnquist, and Roberts courts, is those courts struggling to either
uphold and in some cases, advance decisions made by the Warren Court, or how quickly do they go the
opposite direction?
N. Rodgers: How can they narrow them?
J. Aughenbaugh: Narrow them in such a way that.
N. Rodgers: That they don't peeve everybody in the world.
J. Aughenbaugh: Yes. Don't create such huge disruptions. But that's going to be, again, some of the
themes that we're going to be exploring because the future courts are responding to how this
institution, the Warren Court, transformed not only the Supreme Court as an institution, but American
politics, economy, rights, race relations.
N. Rodgers: What we believe to be true about the Constitution. A huge amount of that comes out of the
Warren Court. People are like, I have a right to privacy. No, you don't, it's not written anywhere in the
Constitution. You're making my teeth grit. But some of it, people are like, oh, I have these rights to these
things. You didn't have the right to Miranda until 1966. But don't act like this is something the founders
came up with. This is something the Warren Court came up with. The Warren Court is the one that
comes up with desegregation. That's not something the founders believe. There's no constitutional.
J. Aughenbaugh: Yes. One person, one vote. Remember, folks, voting in the original Constitution wasn't
even a public right. It was given to the states to decide who got the vote.
N. Rodgers: It certainly was not one person, one vote. Women aren't people. No people of color were
people. No poor people were people. None of those people were people. When you say one person,
what you meant was one rich White guy, one vote.
J. Aughenbaugh: Yes, with property.
N. Rodgers: We've come a long way, but there's still arguments to be had. I do want to ask you one last
thing about the Warren Court. In 100 years, will it be seen as influential as we're seeing it now, or is that
because we're still living in the wake of it?
J. Aughenbaugh: No, I think it will be. It is fundamentally changed the constitutional law agenda in this
country.
N. Rodgers: It's something worth studying and digging in on?
J. Aughenbaugh: Oh, sure, no doubt about it. It's like what John Marshall did not only to the court as an
institution, but to American Constitutional law. We're still debating things that the Marshall Court
decided and wrote. That was in the early 1800s. The Warren Court did the same thing. I would be really
surprised if, in the latter part of this century, they're still not talking about Brown v. Board. Loving versus
Virginia, Mapp v. Ohio, Gideon, Miranda, even Griswold, because let's face it, until you go ahead and
enshrine a right to privacy amendment into the US Constitution, they're going to be folks who are going
to be like it doesn't say that.
N. Rodgers: Me. I'm one of those folks.
J. Aughenbaugh: Yeah, and you're not crazy. Again, you and I on a personal level, you and I've talked
about this off recording. Both you and I, as individuals, really like privacy.
N. Rodgers: Oh yeah. We're 10x. We're totally behind the right to privacy. That is 100% not in question.
In fact, we'd like to be as private as possible. Leave us alone.
J. Aughenbaugh: Yes.
N. Rodgers: But I don't think either one of us believes it's constitutionally a right.
J. Aughenbaugh: No.
N. Rodgers: Worth a debate. But worth some reading if you want to follow up, and if you want to follow
up with Aughie about good books to read about the Warren Court, he's been reading several, not just
because of this, but because of a class he's going to be teaching in the fall. Hit him up for a list if you
want. His email is on our research guide.
J. Aughenbaugh: Yes.
N. Rodgers: Thank you, Aughie. Sorry about the whole Terry thing.
J. Aughenbaugh: No.
N. Rodgers: I'll lose my mind when that comes up.
J. Aughenbaugh: No. In each one of these eras, listeners, you probably have noticed, there are particular
cases that have really animated me and I. It's impossible to talk about, for instance, the Harlan Fiske
Stone court and not talk about Korematsu.
N. Rodgers: It's level of wrongness.
J. Aughenbaugh: Yeah, it's level of wrongness. Or when we talked about the Edward White Court, the
infamous Lochner era court, you have to talk about Lochner.
N. Rodgers: In Plessy.
J. Aughenbaugh: You're Plessy. You talk about the tawny court. You have to talk about Dred Scott. The
Marshall Court, you have to talk about Gibbons v. Ogden and McCulloch versus Maryland. But there are
also some really crappy decisions in those errors. Again, that's part of the joy for me in going through
these errors, is that there's some of these rulings. Again, Griswold versus Connecticut, I don't know why
it bothers me so much, but when I read emanations from penumbras, I'm like, please root it into
something.
N. Rodgers: Could you vague that up for me? You've just made a vague.
J. Aughenbaugh: That doesn't sound like you wrote this as you were coming down from some
mushroom high.
N. Rodgers: On that happy note. We will be seeing y'all in the next episode for the Warren Burger.
J. Aughenbaugh: Yes, Warren Burger. We're not making up the name. That's the name.
N. Rodgers: It really is that Earl Warren led to Warren Burger. Sounds like one of those word ladder
things that you play, those games that you play.
J. Aughenbaugh: All right, Nia.
N. Rodgers: Thanks, Aughie.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely
the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the
Workshop for technical assistance. Music by Isaak Hopson. Find more information at
guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.