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0-19 (Rev. 7g 8-58} #6 tee ja PF ie F From « lecture a@elivered a the University of California, where Barth is a visiting lec- rer ‘on leave: from the edi- department of The Washington Post. SEI Marre tein AE UVVALAI So cours, Alexander Hamilton wrote in * the Federalist, were intended te be “an intermediary body between the people and the islative in order, among er things, to keep the lat- fer within the limits assigned ~ thelg authority.” And he declared that the restraints which the Consti- tution sought to impose on Corigress “can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare ail acts con- the Constitution void. With- put this, 4 all the reservations sat par ticular rignts and privi- leges would amount to noth- ' The Federal courts — end specially the United States upreme Court—are expected under this concept of the ju- icial function to serve as ehtinels and champions of ndividual liberty as against e potentially oppressive ower of the State—and es- pecially against legislative in- temperance and extravagance. It can fairly be said, I think, at the Warren Court has gifilled this concept a great eal more vigorously and ffectively than the Vinson ourt which preceded it. If wees Ade An thee med Dane de le FU WAVINT LUT I> UCL MET AAS half, taking 4a the dividing point 1953, the year in which | Earl Warren, succeeded Fred Vinson as Chief Justice, you, will find an unmistakable and, indeed, dramatic change in the tenor of the Court's deci- sions during the tast five. years as compared with the! five years preceding. | phere is to relate the general trend and temper of the Su- preme Court's decisions dur- ing the past decade to the emotional | _ Tentation and commun ty. in which the | ed 1 trary to the manifest tenor of | What I want to ‘erent | we ‘ ‘ourt ata | beeets @:H/o pv ee ison Secah adele ——- n the fwthewebaore- {head—in much the manner | that a mother sometimes puts ‘ her hand on the forehead of | a child to determine ff he is : well. enough to go off to school | ot arrive at some of rough, unscientific anw@ eadentttad io wraanhal aria guu MUM ASE cA judgment as to the national ‘ —end liberties. ° ONE ILLUSTRATION of contrast between the Henan Warran Maurte ‘ec OPT AMovE and TEMA CL WU “fmay be found in the striking difference of emphasis be- tween them in interpreting the Smith Act—the Act which ‘ akes it a crime to teach or +» advocate the duty or neces- ity of overthrowing the Gov- riment by force and -vio- lence. In an opinion written by Chief Justice Vinson himself z in 1951, the Court upheld the . constitutionality, of the Smith : Act, Justices Black and Doug- i las ‘dissenting. In 1957-—-without actually pudiating the Dennts deci- on of 1951 — the Warren ourt reversed the conviction f eavareal Malifarnise Cammn- =f S2VOral LSirtormia Omri uista, adopting the view that nen may be punished for ad- ocating .overthrow. of .the overnment by force and vio- ‘Hence only when fthose to hey = My hope fs to pul a hand, as temperature regarding civil .. ‘i i. Pinion ». <7 if a aa te et Se eed "vate political bellef. In elo- quent dissenting opinions, ch distinguished Appellate ‘Court judges as Edgerton and ark contended that ques torts prt to witnesses by the ' House Commities Un- merican Activities violated irst Amendment rights. But the Vinson Court de clined to review any of these cages. And so it allowed the (Un-American Activities Com. ttee and the Senate Inter- nal Securify Subcommittee, and even Sen. MeCarthy’s rmanent Subcommittee on vestigations, to proceed un- checked im their deliberate arte fa nnnish he nnhlisiic FOrts ff PUNISH GY pupaciey onduct or bellef which the Constitution ef tke United States forbade Congress to make vunishable by law. In the Watkins decision a year ago, however, Chief Jus- tice Warren reasserted a doc- trine long settled by the courts that the congressional ower ito investigate 1s a imited power, subject to the same limitations which the Qpnstitution imposes on thé : er to legislate, of whic is an adjunct. Then he went on te asse _ language very ‘whom the advocacy is ad. dressed are {ture, rather than merely to ‘believe something.” . This still leaves the possi- bility, as Mr. Justice Bleck , Pointed out, that men may be ‘eonvicted for talk as distinguished from agreeing to- act.” Neverthe- eas, it goex a long way toward estoring to the clear-and- resent-danger doctrine some f the original meaning given it by Justices Holmes and, randels and almost drained om it by Judge Learned Hand and by the Vinson Court. The Warren Court put pits emphasis on the protection i free speech rather than on [the protection of national se- COURTS miay be judged, to some extent, by what they urged “to do something now or in the fu- “agreeing to Court functions, don’t do—granted, of course, the wisdom of waiting until an apt case comes before them, Time and again—in the a Zosephson Case, in the Bar- t ase, in the Lawson Case GOMIn. 2-74 others so—wéllenthe aky and_ip th Vinson Court was asked to “ O NoT JOT RECORDED 46 MAR 16 1959 « = — quiry by congressidirettereesti- ating sammittass inén pri- ——aees nea "§ Tolpety TT “hI Eabaent —— ~~ ase Parsons gn rott Ke ee Holloman Su Di25 ye { Vb Efe [ Wash. Post and 2, Times Herald Wash, News Wash. Star _W__ SE N.Y. Herald — Tribune N. Y. Journal- American N. Y. Mirror _-__ N. Y. Daily News — N. Y. Times Daily Worker —_-__ The Warlar 100 Wome. New. Leader Date _JAN + OU AN gh