[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.''

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