CIVIL LIBERTIES DOCKET
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LAW IN THE SERVICE OF PEOPLE IN STRUGGLE The CIVIL LIBERTIES DOCKET was founded in 1955 to fulfill several functions:
1. To provide up-to-date information for practicing lawyers on court cases in the civil liberties/civil rights field so that new concepts and opinions on threshold constitutional questions can assist litigants throughout the country.
2. To encourage correspondence and cooperation among the small number of lawyers, legal writers, and law professors (perhaps 3,500 out of 300,000) who participate in constitutional litigation.
3. To record in a meaningful way the fact that thousands of individuals instigate law suits and defend against them on constitutional grounds.
4. To describe the role of the US government and the governments of the several states in the eternal struggle to fulfill the promise of the Bill of Rights and Reconstruction Amendments.
5. To provide material for lawyers, social scientists, and students of jurisprudence interested in discovering the true nature of the judicial process. For example, what happens at the trial court level after the US Supreme Court hands down a decision changing existing criminal, civil rights, or civil liberties law? How long does it take to achieve justice in criminal cases with political or racial overtones? What success do people have who sue to protect their civil rights or liberties?
6. To discover what we, as lawyers, can do to improve the administration of justice in the courts where we practice and through the advice we give our clients.
Certain fringe benefits for readers and students in many other disciplines have developed in the intervening years of DOCKET publication (discussed below).
This volume is published at this time to alert the legal profession to its responsibilities and opportunities in practicing constitutional law. It should permit lawyers to represent more constitutional law clients by saving them time in research. It should also provide ideas for new approaches to affirmative litigation and defenses to criminal charges. It may discourage unhealthy competitiveness and the monopoly of expertise that sometimes keep additional attorneys from entering this fascinating but unremunerative field of law which seeks to achieve freedom, fairness, and equality:
Freedom from government interference with the exercise of civil liberties—speech, press, assembly, petition, and religion, and the right to privacy guaranteed in the First Amendment (and in the Ninth and Fourteenth Amendments), reported here at 10.-299., pages 1-68;
Fairness in procedures throughout the judicial process guaranteed in the due process clauses of the Fifth and Fourteenth Amendments (and in the specific provisions of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments), reported here at 300.-499., pages 69-140;
Equality required of state, local, and federal agencies by the equal protection clause of the Fourteenth Amendment (and the due process clause of the Fifth Amendment), reported here at 500.-605., pages 141-189.
Around many events, clusters of legal cases arise. For example, people are arrested by state officials while demonstrating for civil rights (reported at 500-605) and charged with anything from disorderly conduct (reported at 51) to sedition (reported at 54). They file motions to dismiss the criminal charges in state court. They may also file actions in the federal courts for injunctive relief (reported at 63), declaratory relief against the state prosecutions (reported at 74), or they may remove the case to federal court (reported at 73). Sometimes the federal government intervenes or files a criminal charge against the police officers (reported at 590). The defendants may file a damage suit against the arresting officers (reported at 304). Sometimes a state administrative agency also instigates some action, such as a state UnAmerican Activities Committee (reported at 245), or a state Fair Employment Practices Commission (reported at 570s). Each of these cases may raise several issues. Each case may be fought out over a period of several years. For this reason the DOCKET must give the full history of each case and provide many cross-references from section to section and from case to case.
The mosaic pattern formed by these cases illuminates the First Amendment antecedents of many due process cases, and explains the difficultiy of properly categorizing each case. It also underscores the indissoluble bonds linking the protection and expansion of civil liberties, due process and civil rights.
The most effective legal approach to any particular factual situation will not be found with the help of a computer. The practice of political constitutional law is an art form challenging the highest skills of the advocate. One of the distressing admissions a constitutional lawyer must make is that he may be expert at only some of the professional tasks he must perform in a single case.
This DOCKET of constitutional law cases spells out the skills required of the lawyer. First he must be able to talk to his client and teach him that litigation costs, in addition to attorney's fees, will be high and must be paid. He must then know how to investigate the facts and find witnesses; to draft complaints, interrogatories, pretrial memos of law.
Before and during trial, the lawyer must take account of the time factor. He must explain the case adequately to the mass media so that a climate of opinion can be developedthat will permit a competent judge to rule correctly on the law, and unprejudiced jurors to reach a reasoned verdict, without fear of ostracism. At the same time, he must avoid simply trying the case in the newspapers. Throughout the proceedings, he must educate his client about the relevant legal issues and permit his client to educate him about the relevant economic and political questions at the heart of the dispute.
With his argument challenging the method of selecting the jury panel, the quiet, patient office work will end and the courtroom will become the tense workshop where the lawyer must make a careful selection of jurors, thrust and parry with witnesses for both sides, argue the law to the judge, the facts to the jury, and argue for justice to both. The lawyer must be prepared to be cited for contempt of court for his aggressive advocacy without courting such citations.
After trial court proceedings are completed, the lawyer must know how to write a fine appellate brief and make a brilliant oral argument. He must know how to use direct appeals and collateral attacks in quick succession to save his client from unconstitutional punishment and the country from violations of constitutional rights.
These many skills are seldom possessed by any single lawyer. Perusing this DOCKET may convince him that the trial of a significant constitutional law case requires a team of attorneys, law students, research attorneys, and law professors working cooperatively over a lengthy period of time to prepare a meaningful presentation of the law and the facts to judge and jury. If he fails to come to this decision he may find himself bemoaning the irrelevancy of the law and the lawyer in a political trial when the problem actually is his own inability to recognize his own limitations.
At the recent national convention of the National Lawyers Guild, the annual Guild award was given to Arthur Kinoy for his creative service as professor at Rutgers University School of Law, author of "Constitutional Right of Negro Freedom" (21 Rutgers 387 (1967)), counsel in Dombrowski v Pfister (1965) 380 US 479, successful defendant in District of Columbia v Kinoy (reported at 373.20), and in other ways. In response, he discussed problems in constitutional litigation which are relevant here:
"When we organized the first student chapter of the Lawyers Guild at Columbia Law School in the fall of 1945, we were responding to an almost unspoken, felt need in our law student generation. Deeply molded by the experiences and thinking of the activist student movement of the late 30's, we were not prepared to accept the morés and standards of conservatism embodied in the organizations of the corporate elite which then dominated the life of the legal profession."Something the Lawyers Guild seemed to say caught our imagination. It was a bold and rather daring concept. It suggested that there was another road, another path for practitioners of law. That law did not necessarily have to be a single-minded enforcer of the status quo. It suggested that young men and women armed with the skills and techniques of their art could construct for themselves a different role in life as lawyers for the people rather than as servants of the establishment.
"This was an audacious idea filled with the challenge of battle and the wonderful effrontery and brashness of youth. It led us, we were to discover, on a most difficult and winding path, filled with bitterness, frustration, and often defeat. But for those of us who have chosen to pursue the practice of people's law, the original concept which the Guild stood for in our student days, of law in the service of a people in struggle, continues in the deepest sense to provide the meaning and content for our lives.
...
"Out of the rich and varied experiences of the people's movements of the past five years, from the first thrust of the black democratic revolution which surged up from the southern Delta to rock the nation to the extraordinary impact this spring of the Columbia University demonstration and strike, certain concepts have emerged which give depth and meaning to the theory of law in the service of the people.
...
"In every area of struggle, while the form of legal counterattack must of necessity be widely varied, the essence of the strategy remains the same: to find the method of using the legal arena to reject the defensive posture, to affirmatively place the real culprit in the defendant's dock, whether it be a racist society, an illegal war, or the threat of governmental repression embodied in an unconstitutional statute. The strategy is to become prosecutors for the people in the most fundamental sense.
...
"The utilization of the knowledge and skill of the lawyer to unfold this type of affirmative legal strategy is not only critically necessary in the present stage of the development of the people's struggles. It is in the highest tradition of the profession itself. The greatest moments of the profession have been when lawyers have, without abandoning the immediate controversy, become for an instant advocates of those great ideas fundamental to democratic society which, although bound up with the immediate, transcend the limits of the controversy in their importance to the nation's life. Andrew Hamilton, Wendell Phillips, Clarence Darrow spoke in this tradition. They were truly tribunes of the people.
"In the first surge of the southern black movement, the Supreme Court decided NAACP v Button (1963) 371 US 415. The Court taught that such litigation protects or advances the great democratic commands of the Constitutionand is not primarily a 'technique of resolving private differences.' It is, the Court pointed out, in the deepest sense 'a form of political expression.'
"Participation in this political expression represents the highest obligation of the legal profession. It requires us to engage in legal activity which affirmatively protects, implements, and extends the democratic mandates of the Constitution. This activity gives what the Court has called the fragile liberties of the First Amendment the necessary breathing space to survive, and helps to give life to the fundamental promise of freedom to black men and women embedded in the Civil War Amendments."
Legal activity arises when people go to lawyers seeking protection or extension of their rights and liberties. The CIVIL LIBERTIES DOCKET hopefully will suggest to Americans that they have many rights and liberties they have never heard of or exercised. Too few realize there is a method of obtaining justice from a slumlord through the use of the law (see cases reported at section 423). Few imagine they can sue a policeman for mistreatment (see cases at 304). They have no money to pay a fee and do not know how to find a lawyer who will take their case without payment (see sections 371-376). Many do not think a legal struggle will be worthwhile (but see Macks, 281.16; Parrish, 421.Calif.a; Standefer, 336.10; Del Bourgo, 127.2).
It is hoped this DOCKET will assist people to learn what others are doing to defend their liberties and to demand their rights. It is hoped clients will learn something about the procedures used against them by administrative agencies and the judicial system so they can protest when they are treated unfairly. It is hoped that constitutional clients and constitutional lawyers will discover each other in increasing numbers.
The wealth of information on the pages of this DOCKET can also be used by students in other disciplines—political science (Dombrowski, 245.16b), history (Southern, 111.52), anthropology (600s), economics (Frostifresh Corp, 424.11; SCLC, 501.Ala.24a), statistics (Abrams, 414.4), philosophy (Bond, 502.Ga.1), religion (Johnson, 151.15), criminology (Jordan, 411.38), sociology (Coplon, 301.30), education (Keyishian, 281.20a), literature (52s). This volume contains the text for at least a hundred sermons (Pierson, 304.Miss.1; Nomland, 259.54; Love, 490.36), to say nothing of plots for short stories (Hackin, 372.85; Wolfin, 604.17; Thorpe, 423.NC.1; Sherman, 258.15) and novels (Giles, 512.Md.1; Painter, 563.12), libretti (Hoffa, 313.6; Phillips, 304.Calif.20; Loving, 561.6; Sobell, 355.4; Miller, 355.11), TV scripts (Beecher, 353.70; Lucero, 304.Calif.8; Thompson, 254.3) and subjects for PhD theses (Hall, 522.La.2; NAACP, 573.7).
If this volume results in even more constitutional litigation, more literature of struggle, and an even larger (and therefore later) CIVIL LIBERTIES DOCKET next year, the editor will consider the endless work in producing this volume has been worthwhile.
ANN FAGAN GINGER
Editor