[Congressional Record Volume 143, Number 109 (Tuesday, July 29, 1997)]
[Senate]
[Pages S8259-S8260]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WILLIAM J. BRENNAN, JR., GUARDIAN OF THE CONSTITUTION
Mr. MOYNIHAN. Mr. President, current Supreme Court Justice David
Souter captured the legacy of jurisprudence left behind by William J.
Brennan Jr., when he said: ``Justice Brennan is going to be remembered
as one of the most fearlessly principled guardians of the American
Constitution that it has ever had and ever will have.''
In an era when no institution is more embattled than the U.S.
Constitution, we must make special note of the passing of such ardent
guardians. In a manner that endeared him equally to friend and foe,
Justice Brennan matched the importance of his decisions with literary
acumen. With language that could be compared to the authors of the
Constitution, Justice Brennan guarded the constitutional principles--
most especially the freedom to criticize one's government.
Madison's original version of the first amendment submitted on June
8, 1789, provided that: ``The people shall not be deprived or abridged
of their right to speak, to write, or to publish their sentiments; and
the freedom of the press, as one of the great bulwarks of liberty,
shall be inviolable.'' Justice Brennan's identification of Madison's
inviolable protection was crucial during the civil rights movement when
members of the press were being figuratively gagged for their criticism
of public officials. Thus, Brennan wrote in The New York Times versus
Sullivan:
We consider this case against the background of a profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that
it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials. * * *
A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertions--and to do
so on pain of libel judgments virtually unlimited in amount--
leads to a comparable ``self censorship.'' Allowance of the
defense of truth, with the burden of proving it on the
defendant, does not mean that only false speech will be
deterred. * * *
Under such a rule, would-be critics of official conduct may
be deterred from voicing their criticism, even though it is
believed to be true and even though it is in fact true,
because of doubt whether it can be proved in court or fear of
the expense of having to do so. They tend to make only
statements which ``steer far wider of the unlawful zone.''
The rule thus dampens the vigor and limits the variety of
public debate. It is inconsistent with the 1st and 14th
Amendments.
In 1789, James Madison warned that, ``If we advert to the nature of
republican government, we shall find that the censorial power is in the
people over the government, and not in the government over the
people.'' Exactly 200 years later, Brennan expanded this underlying
premise of constitutionally protected forms of free expression in the
case, Texas versus Johnson, 1989:
If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable. * * *
There is, moreover, no indication--either in the text of
the Constitution or in our cases interpreting it--that a
separate juridical category exists for the American flag
alone. Indeed, we would not be surprised to learn that the
persons who framed our Constitution and wrote the amendment
that we now construe were not known for their reverence for
the Union Jack.
The first amendment does not guarantee that other concepts
virtually sacred to our Nation as a whole--such as the
principle that discrimination on the basis of race is odious
and destructive--will go unquestioned in the marketplace of
ideas.
We decline, therefore, to create for the flag an exception
to the joust of principles protected by the First Amendment.
* * *
The way to preserve the flag's special role is not to
punish those who feel differently about these matters. It is
to persuade them that they are wrong * * * We can imagine no
more appropriate response to burning a flag than waving one's
own. * * *
Justice Brennan came to embody the defense of a Madisonian concept of
the first amendment. We shall not soon forget his legacy, nor the
critical mantle he has left behind.
I ask unanimous consent that an Editoral from the New York Times of
July 25, and an article by Anthony Lewis of July 28, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Justice Brennan's Vision
William J. Brennan Jr., who died yesterday at the age of
91, brought to his long and productive career on the United
States Supreme Court a tenacious commitment to advancing
individual rights and the Constitution's promise of fairness
and equality. He served for 34 years, a tenure that spanned
eight Presidents.
Named to the Court in 1956 by Dwight Eisenhower, Justice
Brennan saw the law not as an abstraction but as an immensely
powerful weapon to improve society and enlarge justice. As
such, he was a crucial voice on
[[Page S8260]]
the Warren Court of the 1960's, a body that boldly expanded
the role of the Federal courts and the Constitution itself to
protect individual liberties.
Yet even when the Court shifted in a more conservative
direction under Chief Justices Warren Burger and, later,
William Rehnquist, Justice Brennan was not content to play a
marginal role as an eloquent dissenter. Armed with a keen
intellect, a forceful personality and a gift for building
coalitions, he had surprising success in mustering narrow
majorities to keep alive the legacy of the Warren Court and
its core notion that the Constitution was a living document
that could and should be interpreted aggressively.
``There is no individual in this country, on or off the
Court, who has had a more profound and sustained impact upon
public policy in the United States for the past 27 years,''
said an article in the conservative journal National Review
in 1984, and it is hard to disagree with that assessment.
Justice Brennan was the author of 1,350 opinions, many of
them landmark rulings that altered the political and social
landscape.
He left his mark on a wide range of issues. Banker v. Carr,
in 1962, asserted the one-person-one-vote doctrine that
transformed democracy and, through reapportionment, the
composition of the nation's legislatures. His famous First
Amendment ruling in New York Times v. Sullivan in 1964
reconfigured the law of libel to give ``breathing space'' for
free expression and the robust debate of public issues. In
Goldberg v. Kelly, a 1970 ruling of which he was particularly
proud, Justice Brennan initiated what turned out to be a
steady expansion of the 14th Amendment's guarantee of due
process by ruling that a state could not terminate a welfare
recipient's benefits without a hearing.
Over all, Justice Brennan's greatness was rooted in his
vision of the law as a moral force and his understanding that
the ``genius of the Constitution'' would be betrayed if the
Court insisted on the narrow, static doctrine of original
intent, the notion that the Constitution can best be
interpreted through the eyes of the Framers. The unique
feature of the Constitution, he argued instead, was ``the
adaptability of its great principles to cope with current
problems and needs.''
That vision and driving passion are not thriving in today's
Court. Like Justice Brennan himself, they are sorely missed.
____
Abroad at Home
(By Anthony Lewis)
reason and passion
Minneapolis.--William J. Brennan Jr. once said, in
conversation, that every Supreme Court justice with whom he
had served was as committed as he was to the Constitution. It
was not just an idle remark. He meant that he respected his
colleagues' faith in their differing understandings of what
the Constitution requires.
Justice Brennan's extraordinary influence on the Court, his
ability to shape majorities, was often ascribed to his
personal charm and kindness. But those qualities would not
have persuaded men and women of strong views. I think,
rather, that his colleagues felt his respect for them--and
felt in him an intellectual force that was the stronger
because it was accompanied not by arrogance but by modesty.
Justice Brennan's character won him affection on the Court
across ideological lines. Justice Antonin Scalia, calling him
``probably the most influential justice of the century,''
said. ``Even those who disagree with him the most love him.''
Justice David Souter, who was appointed to the Court on
Justice Brennan's retirement in 1990, was pressed at his
confirmation hearing to distance himself from the expansive
Brennan view of human dignity and freedom. He said:
``Justice Brennan is going to be remembered as one of the
most fearlessly principled guardians of the American
Constitution that it has ever had and ever will have.''
Outside the Court, Justice Brennan's critics on the
political right denounced him in extravagant terms, calling
him an ``activist'' who invented constitutional protections
of liberty. But even in their own terms those critics missed
the point.
In the great decisions with which he is especially linked,
Justice Brennan was passionately faithful to the principles
that the Framers expressed in the spacious phrases of the
Constitution: ``the freedom of speech,'' ``due process of
law'' and the rest. What he did was to apply those principles
to changed conditions.
Thus James Madison, drafter of the First Amendment,
intended it to protect Americans' right to criticize their
rulers--however harshly, even falsely. At the time, civil
libel actions did not menace that freedom. But when Southern
politicians began using libel, in the 1960's, as a way to
threaten press reporting of the civil rights movement.
Justice Brennan saw that libel suits, too, must conform to
Madison's principle. That was the thrust of his majestic
opinion in New York Times v. Sullivan.
Again, the courts over many years kept hands off the issue
of legislative districting. But when state legislatures came
to be controlled by small numbers of voters in rural
districts, and the legislators in power refused to
redistrict, Justice Brennan grasped the challenge to
democracy. His remarkable opinion in Baker v. Carr in 1962--
one that no other justice could have made the Court's--opened
the way for a judicial scrutiny that is now universally
accepted.
More broadly, Justice Brennan saw that the Constitution's
guarantees must be applied to the reality of the vast
expansion of government in modern times. In Goldberg v. Kelly
in 1970, he wrote for the Court that government benefits--on
which so many now depend--could not be withdrawn without
notice and a hearing.
He ``translated from the level of principle to legal
reality,'' Justice Stephen Breyer said, adding: ``That is an
enormous contribution.''
We have a more conservative Supreme Court now, and it has
overturned some of Justice Brennan's opinions. But the heart
of his legacy remains. Part of that legacy is in the
institution itself.
Here in Minneapolis the other day, at the Eighth Circuit
Judicial Conference, Justice Clarence Thomas spoke movingly
of the Court and Justice Brennan. ``I don't think there was a
more decent or more brilliant human being,'' he said. He
described how well the justices get along today despite their
differences; he said he hoped Americans would get over ``the
presumption that all is wrong with our institutions'' and
realize that ``they are working and those in them deserve our
respect.''
Justice Brennan left us his vision of American freedom.
Just before his retirement he wrote the Court's opinion in
the second flag-burning case. ``We are aware,'' he said,
``that desecration of the flag is deeply offensive to many.''
But ``punishing the desecration of the flag dilutes the very
freedom that makes this emblem so revered, and worth
revering.''
____________________