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At Bottom, The Battle Has Been Waged On Moral Grounds. The Country Has Debated Whether A Society For Which The Dignity Of The Individual Is The Supreme Value Can, Without A Fundamental Inconsistency, Follow The Practice Of Deliberately Putting One Of Its Members To Death.

-William J. Brennan

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At Bottom, The Battle

William J. Brennan

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At Bottom, The Battle Has Been Waged On Moral Grounds. The Country Has Debated Whether A Society For Which The Dignity Of The Individual Is The Supreme Value Can, Without A Fundamental Inconsistency, Follow The Practice Of Deliberately Putting One Of Its Members To Death.

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No Longer Is The Female Destined Solely For The Home And The Rearing Of The Family And Only The Male For The Marketplace And The World Of Ideas.

We Do Not Consecrate The Flag By Punishing Its Desecration, For In Doing So, We Dilute The Freedom This Cherished Emblem Represents.

We Hold That The Constitution Does Not Forbid The States Minor Intrusions Into An Individual's Body Under Stringently Limited Conditions.

The Constitution Was Framed Fundamentally As A Bulwark Against Governmental Power, And Preventing The Arbitrary Administration Of Punishment Is A Basic Ideal Of Any Society That Purports To Be Governed By The Rule Of Law.

If The Right To Privacy Means Anything, It Is The Right Of The Individual, Married Or Single, To Be Free From Unwarranted Governmental Intrusion.

Religious Conflict Can Be The Bloodiest And Cruelest Conflicts That Turn People Into Fanatics.

If A Policeman Must Know The Constitution, Then Why Not A Planner?

The Law Is Not An End In Itself, Nor Does It Provide Ends. It Is Preeminently A Means To Serve What We Think Is Right.

The Bill Of Rights Never Gets Off The Page And Into The Lives Of Most Americans.

With Respect To The Death Penalty, I Believe That A Majority Of The Supreme Court Will One Day Accept That When The State Punishes With Death, It Denies The Humanity And Dignity Of The Victim And Transgresses The Prohibition Against Cruel And Unusual Punishment. That Day Will Be A Great Day For Our Country, For It Will Be A Great Day For Our Constitution.

No Doubt, There Are Those Who Believe That Judges - And Particularly Dissenting Judges - Write To Hear Themselves Say, As It Were, 'i, I, I.' And No Doubt, There Are Also Those Who Believe That Judges Are, Like Joan Didion, Primarily Engaged In The Writing Of Fiction. I Cannot Agree With Either Of Those Propositions.

Lawyers, Before Any Other Group, Must Continue To Point Out How The System Is Really Working-how It Actually Affects Real People. They Must Constantly Demonstrate To Courts And Legislatures Alike The Tragic Results Of Legal Nonintervention. They Must Highlight How Legal Doctrines No Longer Bear Any Relation To Reality, Whether In Landlord And Tenant Law, Holder In Due Course Law, Or Any Other Law. In Sum, Lawyers Must Bring Real Morality Into The Legal Consciousness

Sex And Obscenity Are Not Synonymous. Obscene Material Is Material Which Deals With Sex In A Manner Appealing To Prurient Interest.

Perhaps The Bleakest Fact Of All Is That The Death Penalty Is Imposed Not Only In A Freakish And Discriminatory Manner, But Also In Some Cases Upon Defendants Who Are Actually Innocent.

There Can Be No Doubt That Our Nation Has Had A Long And Unfortunate History Of Sex Discrimination. Traditionally, Such Discrimination Was Rationalized By An Attitude Of "romantic Paternalism" Which, In Practical Effect, Put Women, Not On A Pedestal, But In A Cage.

The Public Schools Are Supported Entirely, In Most Communities, By Public Funds-funds Exacted Not Only From Parents, Nor Alone From Those Who Hold Particular Religious Views, Nor Indeed From Those Who Subscribe To Any Creed At All.

If Our Free Society Is To Endure, And I Know It Will, Those Who Govern Must Recognize That The Framers Of The Constitution Limited Their Power In Order To Preserve Human Dignity And The Air Of Freedom Which Is Our Proudest Heritage.

After Each Perceived Security Crisis Ended, The United States Has Remorsefully Realized That The Abrogation Of Civil Liberties Was Unnecessary.

Our Amended Constitution Is The Lodestar For Our Aspirations. Like Every Text Worth Reading, It Is Not Crystalline. The Phrasing Is Broad And The Limitations Of Its Provisions Are Not Clearly Marked. Its Majestic Generalities And Ennobling Pronouncements Are Both Luminous And Obscure. This Ambiguity Of Course Calls Forth Interpretation, The Interaction Of Reader And Text. The Encounter With The Constitutional Text Has Been, In Many Senses, My Life's Work.

Our Statute Books Gradually Became Laden With Gross, Stereotyped Distinctions Between The Sexes And, Indeed, Throughout Much Of The 19th Century The Position Of Women In Our Society Was, In Many Respects, Comparable To That Of Blacks Under The Pre-civil War Slave Codes.

We Current Justices Read The Constitution In The Only Way That We Can: As 20th-century Americans.

Appellant Constituted A Legitimate Class Of One, And This Provides A Basis For Congress's Decision To Proceed With Dispatch With Respect To His Materials.

We Look To The History Of The Time Of Framing And To The Intervening History Of Interpretation. But The Ultimate Question Must Be, What Do The Words Of The Text Mean In Our Time.

Ultimate Questions

If Our Free Society Is To Endure, Those Who Govern Must Recognize Human Dignity And Accept The Enforcement Of Constitutional Limitations On Their Power Conceived By The Framers . . . . Such Recognition Will Not Come From A Technical Understanding Of The Organs Of Government, Or The New Forms Of Wealth They Administer. It Requires Something Different, Something Deeper-a Personal Confrontation With The Wellsprings Of Our Society.

At Bottom, The Battle Has Been Waged On Moral Grounds. The Country Has Debated Whether A Society For Which The Dignity Of The Individual Is The Supreme Value Can, Without A Fundamental Inconsistency, Follow The Practice Of Deliberately Putting One Of Its Members To Death.

Authoritative Interpretations Of The First Amendment Guarantees Have Consistently Refused To Recognize An Exception For Any Test Of Truth Whether Administered By Judges, Juries, Or Administrative Officials And Especially One That Puts The Burden Of Proving Truth On The Speaker.

Freedom Of Speech

Punishing Desecration Of The Flag Dilutes The Very Freedom That Makes This Emblem So Revered.

The Genius Of The Constitution Rests Not In Any Static Meaning It Might Have Had In A World That Is Dead And Gone, But In The Adaptability Of Its Great Principles To Cope With Current Problems And Current Needs.

While The Machinery Of Law Enforcement And Indeed The Nature Of Crime Itself Have Changed Dramatically Since The Fourth Amendment Became Part Of The Nation's Fundamental Law In 1791, What The Framers Understood Then Remains True Today - That The Task Of Combating Crime And Convicting The Guilty Will In Every Era Seem Of Such Critical And Pressing Concern That We May Be Lured By The Temptations Of Expediency Into Forsaking Our Commitment To Protecting Individual Liberty And Privacy.

Congress Acknowledged That Society's Accumulated Myths And Fears About Disability And Disease Are As Handicapping As Are The Physical Limitations That Flow From Actual Impairment.

The Modern Public School Derived From A Philosophy Of Freedom Reflected In The First Amendment ... The Non-sectarian Or Secular Public School Was The Means Of Reconciling Freedom In General With Religious Freedom.

Debate On Public Issues Should Be Uninhibited, Robust And Wide-open And That...may Well Include Vehement, Caustic, And Sometimes Unpleasantly Sharp Attacks On Government And Public Officials.

Freedom Of Speech

Consequences Flow From A Justice's Interpretation In A Direct And Immediate Way. A Judicial Decision Respecting The Incompatibility Of Jim Crow With A Constitutional Guarantee Of Equality Is Not Simply A Contemplative Exercise In Defining The Shape Of A Just Society. It Is An Order

The Quest For Freedom, Dignity, And The Rights Of Man Will Never End.

If We Are To Be As A Shining City Upon A Hill, It Will Be Because Of Our Ceaseless Pursuit Of The Constitutional Ideal Of Human Dignity.

We Current Justices Read The Constitution In The Only Way That We Can: As Twentieth Century Americans. We Look To The History Of The Time Of Framing And To The Intervening History Of Interpretation. But The Ultimate Question Must Be, What Do The Words Of The Text Mean In Our Time. For The Genius Of The Constitution Rests Not In Any Static Meaning It Might Have Had In A World That Is Dead And Gone, But In The Adaptability Of Its Great Principles To Cope With Current Problems And Current Needs.

More Fundamentally, However, The Answer To Petitioners' Objection Is That There Can Be No Impairment Of Executive Power, Whether On The State Or Federal Level, Where Actions Pursuant To That Power Are Impermissible Under The Constitution. Where There Is No Power, There Can Be No Impairment Of Power.

Executive Power

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.

We Must Meet The Challenge Rather Than Wish It Were Not Before Us.

Whether To The Average Person, Applying Contemporary Community Standards, The Dominant Theme Of The Material Taken As A Whole Appeals To Prurient Interest.

There Is No Such Thing As A False Idea.

The Door Of The Free Exercise Clause Stands Tightly Closed Against Any Government Regulation Of Religious Beliefs As Such. Government May Neither Compel Affirmation Of A Repugnant Belief, Nor Penalize Or Discriminate Against Individuals Or Groups Because They Hold Views Abhorrent To The Authorities.

All Ideas Having Even The Slightest Redeeming Social Importance - Unorthodox Ideas, Controversial Ideas, Even Ideas Hateful To The Prevailing Climate Of Opinion, Have The Full Protection Of The Guarantees [of The First Amendment].

You In The Media Ought To Be Ashamed Of Yourselves To Call The Provisions And The Guarantees Of The Bill Of Rights 'technicalities'. They're Not. We Are What We Are Because Of Those Guarantees.

The Principle Inherent In The Clause That Prohibits Pointless Infliction Of Excessive Punishment When Less Severe Punishment Can Adequately Achieve The Same Purposes Invalidates The Punishment.

It Is Tempting To Pretend That Minorities On Death Row Share A Fate In No Way Connected To Our Own, That Our Treatment Of Them Sounds No Echoes Beyond The Chambers In Which They Die. Such An Illusion Is Ultimately Corrosive, For The Reverberations Of Injustice Are Not So Easily Confined.

The Framers Knew That Liberty Is A Fragile Thing, And So Should We.

Death Is Not Only An Unusually Severe Punishment, Unusual In Its Pain, In Its Finality And In Its Enormity, But Is Serves No Penal Purpose More Effectively Than A Less Severe Punishment.

The Concept Of Military Necessity Is Seductively Broad, And Has A Dangerous Plasticity. Because They Invariably Have The Visage Of Overriding Importance, There Is Always A Temptation To Invoke Security "necessities" To Justify An Encroachment Upon Civil Liberties. For That Reason, The Military-security Argument Must Be Approached With A Healthy Skepticism.

Capital Punishment...treats Members Of The Human Race...as Objects To Be Toyed With And Discarded.

Sex, A Great And Mysterious Motive Force In Human Life, Has Indisputably Been A Subject Of Absorbing Interest To Mankind Through The Ages.

The Calculated Killing Of A Human Being By The State Involves, By Its Very Nature, An Absolute Denial Of The Executed Person's Humanity. The Most Vile Murder Does Not, In My View, Release The State From Constitutional Restraint On The Destruction Of Human Dignity.

We Cannot Let Colorblindness Become Myopia Which Masks The Reality That Many "created Equal" Have Been Treated Within Our Lifetimes As Inferior Both By The Law And By Their Fellow Citizens.

Law Cannot Stand Aside From The Social Changes Around It.

It Is Difficult To Understand Precisely What The State Hopes To Achieve By Promoting The Creation And Perpetuation Of A Subclass Of Illiterates Within Our Boundaries, Surely Adding To The Problems And Costs Of Unemployment, Welfare And Crime.

The Framers Of The Bill Of Rights Did Not Purport To 'create' Rights. Rather, They Designed The Bill Of Rights To Prohibit Our Government From Infringing Rights And Liberties Presumed To Be Preexisting.

Use Of A Mentally Ill Person's Involuntary Confession Is Antithetical To The Notion Of Fundamental Fairness Embodied In The Due Process Clause.

Clerks Get Into The Damnedest Wrangles--which Is The Way They Help Me.

One Area Of Law More Than Any Other Besmirches The Constitutional Vision Of Human Dignity. . . . The Barbaric Death Penalty Violates Our Constitution. Even The Most Vile Murderer Does Not Release The State From Its Obligation To Respect Dignity, For The State Does Not Honor The Victim By< Emulating His Murderer. Capital Punishment's Fatal Flaw Is That It Treats People As Objects To Be Toyed With And Discarded. . . . One Day The Court Will Outlaw The Death Penalty. Permanently.

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