1 Sometimes one can see the artifactual nature of legal scholarship when something that seems rather odd appears in standard or high prestige forms. For example, the recent spare of discussion, emanating from the Yale Law School, about the existence of methods of amending the Constitution outside of Article V (see Ackerman, , “Discovering the Constitution,” 93 Yale L. J. 1013 (1984); Amar, , “Philadelphia Revisited: Amending the Constitution Outside Article V,” 55 U. Chi. L. Rev. 1043 (1988)) is sufficiently strange to bring to the fore the implicit program of defending the Warren Court's constitutional innovations as legitimate even if extraconstitutional.CrossRefGoogle Scholar

2 The book is edited by Jamie Kalven, the author's son, “working closely with Professor Owen Fiss of the Yale Law School” (p. xiii). Despite the awkwardness of doing so, I have chosen to refer to Jamie Kalven as “the editor” rather than introduce his name whenever it becomes important to refer to editorial decisions. The alternative has the undesirable consequence of emphasizing more than I wish the filial connection between the author and the editor.Google Scholar

3 In that case, decided in 1961, the Supreme Court held that Congress did not violate the First Amendment in establishing a legal regime that required the Communist party to register as a subversive organization. 367 U. S. 1 (1961). As Kalven notes (at 635 n.9), four years later the Court gutted the Subversive Activities Control Act by holding that no individual could be compelled to register the Communist party because of Fifth Amendment considerations. Albertson v. Subversive Activities Control Board, 382 U. S. 70 (1965).Google Scholar

4 Historically governments have gotten around the obvious evidentiary problems of proving that people hold wrong beliefs by requiring them to swear that they hold correct ones or by using their overt behavior as the basis for an inference that they hold wrong beliefs.Google Scholar

5 Kalven inclines toward the position that indirect sanctions should be available under the same conditions that direct punishment could be used.Google Scholar

6 Here Kalven describes Kleindienst v. Mandel, 408 U. S. 753 (1972), as “position[ing] the issue in a way that opens the power to exclude to direct First Amendment challenge. Although that challenge does not prevail, it is entertained by the Court and produces a precedent that quite possibly will invite efforts in the future finally to bring this area within the reach of the Constitution” (at 444).Google Scholar

7 Gitlow upheld the constitutionality of a statute proscribing advocacy of certain specified subversive doctrines such as anarchism. 268 U. S. 652 (1925).Google Scholar

8 Robel invalidated a statute whose effect was to prohibit members of the Communist party from working for certain defense contractors. 389 U. S. 258 (1967). For additional examples of Kalven's attitude toward common sense, see pp. 153, 197, 255, 366, 388.Google Scholar

9 The Konigsberg litigation involved efforts by the California state bar to determine whether applicants for admission to the bar were disqualified for membership because of their connections to subversive activities. In its second appearance in the Supreme Court, the Konigsberg case held that the bar examiners could automatically exclude from the bar an applicant who refused to answer questions about his or her affiliation with the Communist party. 366 U. S. 36 (1961).Google Scholar

10 A fully elaborated statement of his point would have to distinguish between the easy access to a rich tradition that allowed Jackson to allude to Byron's Lady Julia with little elaboration (though I should note that Justice Story was able to include a substantial amount of Latin in Swift v. Tyson without explaining it in the least), and the obvious fact that “sound bites” allude to, though they do not expressly invoke, a cultural matrix in which they too are embedded. (Consider the cultural complexity of the words “Willy Horton.”) I should also note that the “sound bite” phenomenon is an argument against televising Supreme Court proceedings: The Justice who best hurls epigrams will get on television, and eventually Justices may be selected for that ability, which, to my mind, has little to do with the task of judging.Google Scholar

11 Barsky upheld the suspension of a doctor's license for six months because he had been convicted of contempt of Congress for refusing to provide certain documents to the House Un-American Activities Committee, even though the doctor had presented a good faith constitutional challenge to the committee's power to demand those documents. 347 U. S. 442 (1954).Google Scholar

12 Adopting the rule that in cases implicating First Amendment rights the state must bear the burden of proof–for example, that a person engaged in prohibited speech–Speiser invalidated California's rule that people who sought a veteran's exemption from property taxes but refused to take a loyalty oath had to demonstrate their loyalty. 357 U. S. 513 (1958).Google Scholar

13 A similar relation occurs in Kalven's discussion of the test oath, of which Kalven says, “If, as will be the case, its only predictable result will be to catch a few men of stubborn principle who will refuse to take it, that perhaps is all right too. The test oath is thus a gratuitous, unnecessary legal device, the use of which is always suspect” (at 341).Google Scholar

14 Elegance and excessive refinement, then, are associated with what we have now been taught is the ex ante perspective; see, e. g., Easterbrook, , “Foreword: The Court and the Economic System,” 98 Harv. L. Rev. 4, 21 (1984), while a properly refined common sense is associated with the ex post perspective.Google Scholar

15 Indeed, the ability to present oneself to the judges on a multimember bench so as to appeal to the judge or judges whose votes are likely to be dispositive may be an important element in constituting the successful appellate lawyer.Google Scholar

16 For a reference to Kalven's character, See Bollinger, L., The Tolerant Society: Free Speech and Extremist Speech in America 224 (1986) (“no free speech analyst has been more representative of the tolerant mind than has Kalven himself, a quality that shines through his writings and probably is even more important, in the end, than any of his explicit messages”). I am grateful to Owen Fiss for calling this passage to my attention.Google Scholar

17 I use the gendered term deliberately.Google Scholar

18 A story told of Lionel Trilling suggests the difficulty here. Responding to a suggestion that a faculty group should celebrate having acted harmoniously in a difficult situation by dancing a hora, Trilling reportedly objected to the narrow particularism of such a celebration and urged that some more universal form of celebration be adopted. To this suggestion, Sidney Morgenbesser is said to have replied, “Ah yes, Lionel, incognito ergo sum.“Google Scholar

19 Clark v. CCNV, 468 U. S. 288 (1984).CrossRefGoogle Scholar

20 In addition, it may be worth noting that Judge Bork disagreed with the application of Brandenburg in Hess v. Indiana, 414 U. S. 105 (1973), on the ground that the statement “We'll take the fucking street later” might be punishable not as an incitement but as obscenity.Google Scholar

21 I owe this formulation to Bob Post.Google Scholar

22 In failing to accept Kalven's account, we would characterize our tradition in a less generous way, and thereby define for ourselves a way of thinking about the First Amendment that would limit rather than enhance its protection of liberty.Google Scholar