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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, July 25, 2006

Douglas Speaks

And Also: John Dean's latest is already in the libraries. A few other books on our current broken system that look interesting are not, including Glenn Greenwald's Internet success about true patriotism. One might argue that it is my obligation as a blogger to purchase the darn thing, but he covers the same ground daily on his blog. This is also the value of book reviews and C-SPAN Book T.V. events -- saves time and money.

Man's age-long effort has been to be free. Throughout time he has struggled against some form of tyranny that would enslave his mind or his body. So far in this century, three epidemics of it have been let loose in the world.

We can keep our freedom through the increasing crisis of history only if we are self-reliant enough to be free. Dollars, guns and all the wondrous products of science and the machine will not be enough. "This night thy soul shall be required of thee."

-- Justice Douglas

I recently passed by a book entitled Penumbra (Amazon listed another one as well), a fiction book that did not really have anything to do with astronomy or Griswold v. Connecticut. The latter is where some concerned with the term would look, since Justice Douglas (in)famous spoke of specific constitutional guarantees have "penumbras, formed by emanations from those guarantees that help give them life and substance." A bit of descriptive wordplay that raises some eyebrows even when being examined in-house before the ruling was handed down. This is so even though the basic principle is really not controversial at all. It is the breadth given to it.

In one of those coincidences that people like myself live for, I soon thereafter passed mention of a c. 1951 radio clip in which Justice Douglas added his take to what seems to be a series concerning "what I believe." Since there now are a few places wherein one can find audio of oral arguments (e.g., Oyez), I have heard a bit of Justice Douglas' voice already. Not quite on the level of current justices or Justice Blackmun (an interview is available on tape in some libraries and his oral history project was excerpted on C-SPAN last year or so), but still. All the same, not quite on the level of these few minutes. So, it was nice to find -- thanks Orin Kerr etc. for the mention.

The remarks concerned "the faith of our fathers," a theme of long standing. Douglas in particular spoke of his parents, but the term traditionally often applied to the Founders and that generation. Thus, in one of my favorite speeches (performed by Sam Waterston in 2004 -- wish more historical speeches were done in that fashion), Lincoln at Cooper Union accepted Sen. Douglas' appeal to "our fathers" respecting the issue of slavery in the territories. As noted by David Zarefsky in his book on the Lincoln-Douglas debates, this served as a common language, even when the population was greatly split on their opinions on what exactly the Founders thought. Other nations explicitly worship ancestors; we do so in our own fashion, even respecting those like Jefferson who were more concerned with the public then living.*

The early 1950s is said to be the time when Justice Douglas truly grew into his libertarian phase, his presidential hopes basically crushed (I did read of his thoughts of joining Kennedy's Cabinet) and first (of four) marriages about to be over. Also, the Red Scare led him to be particularly concerned about such matters. Thus, we have his dissents in Dennis v. U.S. (communism) and Public Utilities v. Pollack (1952) (privacy). And, his remarks here spoke of such concerns, including focus more on "matters of the mind and the spirit" than respecting "material things." Those quotes are from a 1958 speech [using the word "penumbra" in the process] respecting "the right to be left alone," but Douglas' belief of the core natural right, endowed by God, to liberty was also referenced in the radio remarks.

I have underlined that Griswold was not a pure act of creation (as to judicial review/1803 see here) various times, but since the myth and confusion continues, it bears repeating. The ruling, of course, involved contraceptives, which again respected matters that did not suddenly have judicial recognition in the mid-1960s. Surely, however, the ruling was a landmark, underlining themes that were only dealt with in scattershot fashion in other rulings or in state cases. And, the question of reproductive liberties continues to be a developing issue. Mother Jones, for instance, recently had a very interesting article discussing the complexities of the stem cell issue subtitled: "How 500,000 frozen embryos are forcing us to rethink life, choice, and reproductive freedom."

And, the beat continues.


* One is reminded of the Adams-Jefferson letters. It would be interesting if Bush-Clinton (William Jefferson Clinton), who seems to be having a good working relationship respecting relief efforts, started such a correspondence. His Texas connections aside, Bush41 has a New England background, while Clinton is from the South. They also have different views, but certain shared sentiments for which common ground could be reached. Clinton also is a voracious reader, while Bush has noted he too reads a decent amount as well. The somewhat elitist leanings of one vs. the populism of the other also suggest some parallels. One can go too far, but it's a fascinating idea, isn't it?