CONSTITUTIONAL CALENDAR LETTERS EDITION

We bring to you, unedited, and mostly without smarmy remarks, another edition of Judge Milton Hirsch's beloved Constitutional Calendar (c) Uncle Miltie's Legal Musings 2019. 

One word of warning for those lawyers and Judges born in the era of four dollar coffees from Starbucks. The following contains references to "letters" Letters were very similar to emails and texts except they were written by hand with a pen or pencil or with a typewriter on paper which was not electronic and could be held, folded and mutilated. The use of paper to contain the written word was the way humanity communicated without speaking for centuries before the ruinous email and text message were invented.  For more on these strange concepts for most of you, we suggest Google. We actually suggest resort to an encyclopedia, but that would just cause most of you to Google that. 

The common law recognized the right of every man to be secure from unreasonable search and seizure.  But it provided no effective remedy for the violation of that right.  In 1914, in United States v. Weeks, the Supreme Court explained that the Fourth Amendment was intended to provide the missing remedy, by barring from use by the government the fruits of an unlawful search or seizure. 

            In 1949, in Wolf v. Colorado, the Court reversed its field, holding that the remedy was somehow severable from the amendment, and that state courts were therefore not obliged to enforce the exclusionary rule.  In 1961, however, in Mapp v. Ohio, the Court returned to its earlier reasoning, holding that unlawfully seized evidence was inadmissible in any American court.

            On Jan. 25, 1962, Justice William O. Douglas wrote to his colleague Justice Thomas Clark, the author of the Court’s majority opinion in Mapp:

Dear Tom:

This last weekend at a social occasion I saw Attorney General Stanley Mosk of California and his wife. He said out of the blue “Thank the good Lord for Mapp v. Ohio.” I asked him what he meant and he went on to give an interesting account, most of which you probably know, which I thought I would pass on to you. ...

The result of Mapp v. Ohio, according to Mosk, is to take the pressure off the local judge to create exceptions and to follow the exclusionary rule and all its ramifications.

William O. Douglas

            Apparently Douglas’s letter made the rounds of the justices, because five days later, Justice Frankfurter – a dissenter in Mapp – felt obliged to respond:

Dear Brethren:

At the time that Bill Douglas circulated his report of Attorney General Stanley Mosk’s rejoicing over Mapp v. Ohio nothing was further from my thoughts than intramurally to argue that decision. Nothing is further from my thoughts now. Nor would I have made comment if Attorney General Mosk had founded his approval of the Mapp decision on his view of the history of the Fourteenth Amendment or on what he conceived to be the juristic requirements of the Due Process Clause of that Amendment. Instead, he welcomes the opinion because it will check a tendency of California lower court judges and, perchance, even the danger of the California

Supreme Court, to make inroads upon the California doctrine regarding search and seizure, as expounded in ... People v. Cahan, 44 Cal. 2d 434. Coming from one of the most self-reliant of States, this attitude to look to federal authority for dealing with a local problem – for such was concern over the Cahan doctrine until Mapp came along – runs counter to one of my oldest convictions which time has only reinforced. And so I am moved to this word of comment.

So-called “states rights” claims are, I know, the happy hunting ground of demagogues as well as of sincere reactionary minds. I have no use for such claims; I did not imbibe them in Vienna or New York or Cambridge or Washington. But I do deeply care about the maintenance of our federalism, and I care deeply about our federalism fundamentally because it is, in my view, indispensable for the protection of civil liberties to avoid concentration of governmental powers in one central government. Those who think that this is an idle fear read the lessons of history and, not least, of recent history, differently from the way I do. It is not without significance that the Royal Commission on Police will, I believe, before long report against a central police force, even for the tight little island of England, or rather even for one-half of that Island. It is of course beside the point of my present concern that Mapp may be deemed in support of a civil right. More than half a century ago Elihu Root, in a famous speech, told the States that the only way for them to preserve local rights they care about is to be alert to their protection and not allow the Federal Government to move into a vacuum of indifference to, and disregard of, the duties and powers of States. (See Root, Addresses on Government and Citizenship, p. 363, How to Preserve the Local Self-Government of the States.)

Let me repeat. I am not addressing myself to Attorney General Mosk’s approval of Mapp v. Ohio. I am not remotely adverting to the merits of that case. I do feel saddened, much as I respect him, by the ground of his satisfaction over the decision.

Sincerely yours,

F.F.

            Douglas, having received Frankfurter’s letter, wasn’t about to let the matter drop.  The very same day, he circulated, as a “memorandum to the conference,” the following:

In re: Mapp v. Ohio

I did not ask Attorney General Mosk. But if I had put the question, I am certain he would have also said, “Thank God, California is in the Union.”

William O. Douglas

            But Frankfurter wasn’t going to let the matter drop either.  Referencing the date of the Mapp opinion, he wrote back (copying all the justices, of course):

Dear Bill:

When next you see Attorney General Mosk please ask him if California was not “in the Union” before June 19, 1961.

Sincerely yours,

F.F.

            To which, of course, Douglas was moved to reply:

Dear Felix:

When I next see Stanley Mosk, I will put your question to him. My guess is he will say that California was not wholly “in the Union” before Mapp v. Ohio, as he thinks, I believe, that the Bill of Rights should be protective of all our constituent members.

William O. Douglas