Vincent Phillip Muñoz : The Warren Court & Progressivism | BRI Scholar Talks

0:00 [Music] hi this is tony williams senior fellow at the bill of rights institute and we are pleased to bring you another episode of scholar talks for this episode we are honored to have our scholar philip munoz who is going to discuss the warren court

0:20 thank you for joining us philip pleasure to be with you appreciate it uh let me introduce you vincent philip munoz is the tocqueville associate professor of political science and concurrent associate professor of law at the university of notre dame he is the founding director of notre dame’s undergraduate minor in constitutional

0:42 studies and also directs notre dame’s tocqueville program for inquiry into religion and public life dr munoz writes and teaches across the fields of constitutional law american politics and political philosophy but a focus on religious liberty and the american founding his first book god and the founders

1:02 madison washington and jefferson which i have right here my signed copy my treasured signed copy a first amendment church state case reader called religious liberty and the american supreme court the essential cases and documents and the co-editor of american constitutional law

1:24 the leading constitutional law case books designed for undergraduate instruction he’s the recipient of an neh grant and currently writing a book on the natural right of religious liberty and the original meaning of the first amendment’s religion clauses he has published widely in scholarly journals and national periodicals and is an award-winning professor for

1:46 teaching a widely sought lecture and has made many scholarly contributions to bri over the years which we are grateful for so again thank you for joining us you know it’s really good to be with you great so so let’s dive right in okay we’re gonna be talking about the warren court today uh which is relevant to some of

2:07 our other materials that we’re wrapping around this conversation and so my first question is can you provide a little bit of historical background that helped shape the warren court which lasted from 1953 to 1969. yeah sure again thank uh thanks for um having me

2:27 uh i hope this conversation is useful to those teachers and citizens who are watching i’m a big supporter of the bill of rights institute and uh i’ve always enjoyed um uh participating and teaching in the programs you offered so i mean so the warren court again uh 1950s 1960s um i don’t know maybe different

2:50 different scholars would approach the background differently i’d actually go uh go back to the early 20th century in the progressive movement um and the warren court i think we start to see the implementation of modern progressivism but the the philosophical ideas of modern progressivism really uh were introduced into american

3:11 politics earlier uh in the 20th century by intellectuals like herbert crowley and uh woodward president woodrow wilson especially political science professor uh before his uh politician um uh woodrow wilson was probably one of the first maybe the first to talk about the constitution as a organic or living document you know the

3:32 living constitution wilson contrasted the living constitution with the founders uh understanding of constitutionalism implicitly the dead constitution or the constitution of the past um today we talk about living hospitalism versus originalism the warren court um applied that living

3:54 philosophy even though chief justice warren was not a constitutional theorist per se to all sorts of parts of american life so it was a time of judicial activism in many cases for results that most of us very much like and would support

4:15 but it was um an implementation of progressive notions of the role of the court and the role of of the court to update our constitution to to bring it uh keep it up with the times as it were to lead to social justice and it really has shaped sort of what the judiciary has become

4:36 even to this day even though there are a number of justices appointed by conservative or republican presidents really we still live in the shadow of the war court in in many senses right and and this whole uh discussion of a living constitution versus originalism and all that it’s come up during our supreme court hearings that that we’re witnessing

4:56 right now yeah yeah we’re recording this right uh you know right as the barrett hearings have finished so yes it’s very much a relevant topic justice brennan of course is the great 20th century leading member of the warren court um a great 20th century justice who really advocated from from the position of the supreme court the philosophy of living

5:17 constitutionalism maybe i’ll just say one more word about that just to clarify our terms um uh you could i i haven’t thought there’s i haven’t used this but i think this will work um you could say the older understanding in the constitution was that the constitution was um uh so the rules by which we have

5:37 agreed to live by you know the the architectural plan uh and justices were to enforce those rules uh the notion of a living constitutional is more the constitution is a concept sort of you know an idea for a house and the role of the court is really to drop the rules to help implement those general concepts

6:00 of liberty and equality so instead of understanding the constitution as here are the rules that we have adopted as a people to protect religious liberty or free speech or federalism or separation powers these are concrete rules and the constitution is our governing document in the in the progressive or living constitutional school that the

6:20 the constitution is just a a document of vague generalities or general principles and the rules are then made up by the supreme court and so you can see one has a much more uh activist or managerial role for judges and that’s what we saw um in the in the warren court

6:41 um and part of the reason the warren court you could say got away with it or was able to adopt that uh activist role uh is because of brown versus board of education which i’m sure we’ll talk about and and how that was seen as a great moral victory and sort of legitimated the what the warren court was doing right uh and uh the court did some other

7:04 things too uh and so in several of these cases we’re gonna see an application of the bill of rights to the states uh and local governments as well and so what what is this incorporation doctrine and and how did it you know affect some of the the reasoning in their cases and and even the concept of federalism okay good yeah so incorporation um the

7:25 bill of rights uh background i mean i’m sure people watching this video know this but let me just uh a little background information uh the bill of rights of course are amendments to the constitution they’re not part of the original constitution it’s part of the deal of ratification that the anti-federalist those who are against the constitution’s ratification and would agree to ratify it with the

7:45 promise of amendments it’s a complicated and interesting story but we get a bill of rights as amendments to the constitution and the bill of rights only applies to the national government the federal government so the first amendment lots of people don’t know this or forgotten this originally the first amendment didn’t only restricted congress uh in the national government it didn’t apply to the states uh

8:07 it was case in 1830s baron vs baltimore articulated this but everyone agreed it wasn’t controversial after the 14th amendment is adopted after the civil war 14th amendment restricts the states there’s a question to what extent does the 14th amendment incorporate or apply the bill of rights or other fundamental

8:28 freedoms against the states and the doctrine of incorporation is the way the court through a through a number of different cases that basically goes spans the 20th century even into the 21st century applies various provisions of the bill of rights to the states so in 1919 and 1925

8:49 a couple of free speech cases the court says the first amendment free speech clause restricts the states in the 1940s it was the religion provisions and the warren court did a lot of this so they nationalized the bill of rights of applying it to the states and the doctrine by which they did it is known as incorporation that is the 14th

9:09 amendment specifically the due process clause incorporates the bill of rights and other fundamental freedoms not necessarily limited to the bill of rights and restricts state state governments okay right and you mentioned brown versus board of education in 1954 and that that’s really one of the first major decisions of the war in court and probably its most famous case

9:32 uh what are the essentials of that decision yeah brown involved um segregation and public education right um uh the jim crow south and um uh there’s a precedent on books from i think it’s 1896 plessy versus ferguson that said separate but evil or segregation was

9:53 constitutional constitutional um uh the dissent in plessy was justice harlan and he said no the constitution is colorblind so brown comes in 1954. uh the court says separate but equal is not equal the court does not adopt plessy’s

10:13 colorblind uh uh dissent so the war court does not say uh the constitution is a mandates color blindness uh but rather just separate but equal is not equal uh the so what’s the remedy so it makes uh segregation in public education white schools black schools that’s

10:33 unconstitutional um but again what’s the remedy and over time over a number of cases the remedy becomes integration and then part of integration becomes school bussing that happens really in the 60s and 70s beyond the war on court but brown is

10:55 commonly understood properly understood as uh constitutionally outlawing segregation and then the logic of brown is applied to all public schools uh all sorts of um other issues but brown itself referred to public education right and the court also issues a few

11:15 landmark decisions regarding the right to the accused uh such as in gideon versus wainwright in 1963 and miranda versus arizona in 1966 right and so everyone who’s watched lauren orator knows all about the miranda rights so what’s decided in those cases and and how do they respect the rights of these keys

11:36 okay so uh miranda let me start with the second one is um the the constitution the bill of rights uh you have a right to not incriminate yourself uh uh so how how is that enforced right how do we operationalize the right uh uh to not incriminate yourself and um what comes out of the court the

11:57 court basically says look uh cops uh detain you they have to inform you of your right against self-incrimination and if they don’t and you say something but you haven’t been informed of your constitutional rights and that that evidence uh coerced confessions or even voluntarily given confessions if you’re if your rights have not been if you’ve not been

12:19 informed of your rights that evidence is suppressed right so it’s a way to make real or um operationalize uh the bill of rights um protection against self-incrimination uh gideon is a involves the right to counsel so the constitution uh the sixth amendment

12:39 provides uh you have the right to assistance in a criminal case right a right to a lawyer but you have a right to a funded lawyer right and so what we get is the warren court saying um sixth amendment right to a lawyer applies against the states so if you are in a state criminal case and the right to a lawyer the right to

13:00 counsel is the right right to effective counsel or a furnished lawyer so government must provide a public defender now we call them right um uh you know as matters of law these are complicated issues um i think what most people would say whether or not what was that was the

13:20 original meaning it’s a good thing that people who can’t afford a lawyer uh have a lawyer when the state is prosecuting them these are again whether the state should have done that themselves or if that was to be provided under state constitutional guarantees as a

13:41 interesting question lawyers might debate um but from the perspective of civil liberties generally i think most people think these are these are good things we don’t want coarse confessions and we don’t want um poor people not having lawyers right so supports the ideas of ideals of justice and and and supports you know a limited government you know

14:02 from violating the rights of citizens uh due process yeah sure yeah well there’s also a couple seminal cases uh in your area of particular expertise uh on religion uh in local public schools such as engel versus vitali and abington school district

14:22 versus shem uh and so what’s decided in those cases and and how do they you know affect things going forward and yeah so the warren court um is much more controversial on on religion uh and its church state jurisprudence especially its establishment clause jurisprudence so the first amendment says congress shall

14:43 make no law respecting an establishment of religion so incorporation then applies the no establishment provision to to the states but what’s an establishment of religion not all together clear i mean i can give you a whole book manuscript trying to answer that question but um the court in 1940 said

15:03 establishment clause means there’s a wall of separation what is that that’s not clear either so these cases in the 60s are in the context of public schools and uh new york uh state had something known as the regents prayer um i wrote this down because i knew we were going to talk about this so i’m just going to read you the registrar this was said in uh in newark public

15:26 schools uh prior to 1962 uh at the beginning of the school day it’s called the region’s prayer because the regents the you know the governing body of the school wrote the prayer um let me see here if i can find it um it seems pretty innocuous um let’s see where is it i wrote this down here

15:47 okay almighty god we acknowledge our dependence upon thee and we and we beg thy blessing upon us our parents our teachers and our country amen so no reference it’s not sectarian and i mean i i suppose it um acknowledges a creator god or just an almighty god

16:08 i was talking about this case a few years ago i think this is when i was at princeton and i had some members of the audience senior citizens they’re like oh yeah i remember saying that prayer when we were kids whatever happened to that well else when we stopped saying it so in in 1962 i believe in engle versus vitali um the court

16:30 strikes down the regents prayer because it violates the wall of separation i mean it’s you know only about 60 years ago it’s sort of amazing that we had government sanctioned prayer and in public schools uh seems like a long ways away from where we’re at now but that was a common practice and that is a pretty controversial decision and then the other case the shump case i

16:52 think 1963 the court strikes down uh the practice of bible reading um this was in pennsylvania and i think maryland schools uh it varied from locality but in many schools or was um uh passages of the bible were just read without comment beginning school day uh uh

17:12 other schools were uh recited the lord’s prayer um a christian prayer though as i’d like to say in class it was written by a jew um and uh they start that you can’t start the school day with with the prayer and this is part of the wall of separation that the warren court really implements uh and makes [Music]

17:33 what really brings down from earlier cases and it kind of dictates the place or the lack of a place for religion in public education right now as a follow-up uh and something you’ve written about extensively because i’ve read it in your books um you know this was based upon a letter from from thomas jefferson to to the danbury

17:54 baptist association uh and and other founders might have had a different view or other founding documents might have might have shaped the court differently had they they alluded to those is that correct oh yeah yeah so the the phrase the wallace separation uh thomas jefferson wrote this one is president to the danbury baptist association 1801 or 1802

18:15 i can’t remember um all right the phrase itself comes dates back to roger williams um founder of rhode island um but even how jefferson used the phrase of wallow separation altogether clear what jefferson meant and there’s some very good scholarship a gentleman daniel dreisbach who has made

18:35 the argument that what thomas jefferson was referring to in this wall of separation was the wall was between the national government uh uh and religion not that is about federalism it wasn’t separating religion from politics but rather the national government from religion meaning this is a state question and

18:56 some of his evidence is when jefferson was governor of virginia he issued presidential uh prayers proclamations of days of thanksgiving and the like um so uh i it was interesting that the court turned to jefferson who had nothing to do with the drafting of the first amendment to interpret the

19:16 the first amendment um and the founders position uh founders positions on church and state are complicated i mean they all believed in the idea of a natural right to religious liberty that you the the government can’t persecute you for practicing your religion it can’t make you go to this service or that service or make you to go to any services at all

19:36 can’t punish you for for the practice of your religion or the absence of religion they all agree about that but but to the extent that government could help support religion through grants of land or generally general benefits um you know there is no publication that i’m sorry there was no public education at the time of the founding most

19:56 education is done through churches so can you help fund the church in order to educate uh the the body politic the founders disagreed on that george washington patrick henry alexander hamilton were more sympathetic to the idea that government ought to nurture morality and one of the

20:17 ways you nurture morality is by nurturing religion um so there’s a civic purpose just like what we talk about public education we say we need an educated citizenry so we fund public education you have to pay your taxes for public education even if you yourself don’t have kids or your kids are not in public education it’s a it’s part of the common good that’s what george washington said about religion i mean

20:37 um good citizens moral citiz good citizens need to be moral they can govern themselves and religion helps support morality and therefore it’s a legitimate object of public spending others like madison agreed with george washington they said yes religion is necessary to the success of

20:57 republican or democratic government but government isn’t necessary to support religion religion doesn’t need the support of government uh so it’s not that they disagreed about morality or the goodness of religion but just madison thought religion would be better off if not supported by government kind of a libertarian or classical liberal position on that um the idea that government should be

21:20 hostile or that government should be free from all religious influence that’s really not present at the founding that’s more of a 20th century doctrine that emerges from uh the court’s jurisprudence including jurisprudence in the in the warren court right and uh one more follow-up because it’s so fascinating and because this is

21:40 really your your area uh and and so we use these cases to then later on uh you know no prayers that uh you know like commencement services or or uh you know football games and and that kind of thing yeah so i mean once i mean sort of interesting so i teach in a law school but i i’m not a lawyer by trade

22:00 and for for many of those who are in the law legal professionals i mean this sort of the supreme court sets the rules and then you operate within supreme court precedent so the supreme court has a leading precedent still a good president ever similar support of education where they say a wall of separation and that sort of effectively becomes the law um i mean you can make make the argument

22:21 i think could easily defend this argument that justice black and justice rutledge sort of the two most important votes in the flawless separation case they rewrote the first amendment uh but that’s that’s the law and that has its own life now and all sorts of precedents built up and you know we still argue about these things today right and and should do in a in a

22:44 republic right and in democracy right you should have healthy deliberation about these things and civil yeah i think you know just got the the religion um sort of interesting for all sorts of reasons today um in 1963 and of course a case called sherbet versus verner this is the this was a free exercise clause case so the first amendment says

23:06 congress shall make no law respecting an establishment talking about the establishment clause but also the first amendment says you can’t prohibit the free exercise of religion and in 1963 the court uh in this sherbert case justice brennan again by the intellectual force in a way behind the warren court uh said the free exercise clause mandates exemptions

23:27 from generally applicable laws that in practice burden religious exercises so today exemptions the idea that first amendment or religious freedom requires exemptions that’s criticized by those on the left as being a conservative position many conservatives do adopt that position today but it was actually justice brennan

23:47 who authored that idea and this was part of the living constitution he said he said you know originally the first amendment protects the idea of religious freedom uh at the time of the founding he didn’t really care what they did at the founding but what does religious freedom mean how is it effective today in the modern administrative state where

24:08 government does so much and he says the only way you can really protect religious freedom is through by by giving exemptions to religious citizens from generally applicable laws and in practice burden religious exercises again that was the liberal dogma um really up until the last few years so that case is also part of the war in

24:29 orange legacy right is there an example of an exemption that the teachers and students might be familiar with from from recent times well the big ones are the hobby lobby case that’s not that’s done under federal law uh the religious freedom restoration act which implements the sherbert ideal so you

24:50 know that has been the big one that’s been be before us in the last out of the obamacare um but you know conscious consciousness exemption from military service uh there’s also some warren court decisions on that uh exempting both religious believer religious pacifists but non-religious pacifism as well

25:11 if you have a moral objection to fighting a war the um the warren court uh issued some decisions these are not constitutional decisions but statutory decisions extending exemptions um the war court in general i mean it’s not just religious minorities the warren court was uh friendly or activist and protecting all

25:32 sorts of minorities but including religious minorities um uh that was sort of liberal constitutionalism of the of the war on court there’s been a real shift uh uh in terms of protecting religious liberty on the on the left i i think at least left legal academics uh switching gears here uh maybe a

25:52 little bit um and and maybe into even more controversial uh what was decided in in griswold versus connecticut decision because and and how does that right privacy that’s enunciated in there helped to shape the decision in in roe versus wade that was decided a little bit after uh yeah so i mean

26:13 it’s in constitutional law sometimes these cases that you would think are not very important or you know minor cases can have a very big role um so gruesome versus connecticut and involved a connecticut statute that prohibited birth control um uh it was on the books uh the case itself was sort of

26:33 manufactured no one was arrested for procuring birth control but it’s a long story uh on how the case gets to the supreme court but it does get to the supreme court and the the court strikes down the pr the state prohibition uh uh banning birth control as applied to married couples because there’s a right to privacy the

26:54 court says so this is really the birth of the idea of the right to privacy privacy is not um mentioned in the constitution at least in the context we think about it in terms of sexual morality um there’s a fourth amendment prohibits unreasonable searches and seizures that’s certainly a type of privacy um but the court says in griswold there’s a right of marital

27:15 privacy actually privacy is in the marriage bond or the marriage bedroom they actually say uh and the government can’t intrude into decisions that married couples makes makes um and so the court founds this right to privacy uh that’s later expanded because the equal protection clause to mean you have a constitutional right to contraception

27:36 uh all all individuals do uh and then of course the right to privacy the court cites uh griswold and roe versus wade so the obviously perhaps the most controvers uh controversial and consequential decision uh uh in the last 100 years um the precedent on privacy is laid in

27:57 griswold very good and so as we come to the end of our discussion what are some maybe general reflections on the war in court particularly as it may have helped to reshape the principle of federalism or really anything else you want to talk about yeah well you know i can talk for a long time i mean we haven’t talked about the federalism decisions per se um

28:18 uh you know maybe let me answer that question in a way that most people might not um but something i’ve just been thinking about a lot the the warren court had all sorts of decisions on uh pornography um this is the time when justice potter stewart says uh you know i don’t know how to

28:39 define pornography but i know it i know it when i see it right um so the warren court really struggles to figure so the first amendment protects free speech it’s pornography speech um well they say well obscenity is not protected by the first amendment but what’s obscene and what’s not and the court

29:00 really can’t figure out um a workable rule and because the the standards are relatively vague what happens is you just get a a loosening of the laws against pornography right now pornography in this 1960s is nothing like it is today right this is pre-vcr

29:21 pre you know certainly pre-internet i mean no one it would be interesting to think if you could ask these justices back in the 60s like this is what this is going to produce in 50 years the general point is um the court in the 60s made it much more difficult for local communities to limit pornography or obscenity um

29:43 the court contributes greatly to a loosening of laws maybe that’s good maybe that’s bad but it really uh strips local communities of the ability to use the law to set the moral tone especially matters of sexual morality well fast forward you know with the vcr and then with the internet uh and we

30:03 just have complete deregulation non-regulation of these matters uh so these decisions in the 60s related to pornography really govern have had these monumental consequential [Music] impacts for local communities and their ability to

30:23 uh to just what i call to regulate the moral ecology of a of the local community now maybe technology would have outstripped local communities in in general but just imagine if like oh so i have three little kids i think about this stuff all the time if um you know all pornography had been filtered into a different domain

30:44 ending right i’m terrified that my kids will just accidentally you know be on the computer and that’s all part of the legacy of of the war on court i think maybe one of the worst parts of its for this legacy personally um of course they didn’t foresee what was going to happen but um they did certainly make it harder for local communities to govern themselves

31:05 in these matters at least philip i want to thank you for joining us today really appreciate it thanks for having me thanks for all you do for bri thank you and uh thank you to all you all the viewers who joined us and uh you can check out our life liberty and the pursuit of happiness

31:25 textbook at bill of rights institute.org thank you you