Warren Court: Prayer, Exclusionary Rule, One Person‑One Vote

The Warren Court, led by Chief Justice Earl Warren, brought about a significant revolution in American constitutional law, addressing several critical areas. This article delves into three additional areas of the Warren Court's jurisprudence: prayer in public schools, the exclusionary rule, and voting rights, before offering a broader assessment of its legacy.

Prayer in Public Schools

The Warren Court, in cases like Engel v. Vitale and Abington School District v. Schempp in the early 1960s, effectively eliminated organized, state-sponsored prayer in public schools. This decision stemmed from the First Amendment's clauses on the free exercise of religion and the establishment of religion, which, through the principle of incorporation, apply to state and local governments.

The Court reasoned that when the government dictates prayer, it inevitably picks sides, favoring one religion or even one sect within a religion. This creates an unequal environment for students of different faiths. Forcing students to participate in a prayer contrary to their beliefs, or even excusing them, would lead to a form of segregation based on religious belief. Given the Court's sensitivity to the social meaning of segregation, as demonstrated in Brown v. Board of Education, it found such practices inconsistent with religious liberty and equality. The underlying principle was that government should not be involved in religious choices, as this violates the deep idea of religious liberty and equality.

The Exclusionary Rule

The exclusionary rule, which originated in federal courts in the early 20th century, was extended to the states by the Warren Court in Mapp v. Ohio (1961). This rule dictates that evidence obtained in violation of the Fourth Amendment cannot be used in a criminal case against a defendant, even if the evidence is completely reliable and proves guilt.

The speaker expresses a critical view of the exclusionary rule, arguing that it is not explicitly stated in the Constitution's text, nor was it supported by the framers. Historically, in both English and early American law, reliable evidence was admissible regardless of how it was obtained. The speaker contrasts this with other constitutional principles, such as the right to counsel (Gideon v. Wainwright) or proof beyond a reasonable doubt, which are seen as protecting innocent people from erroneous conviction. The exclusionary rule, however, is argued to protect the guilty.

Furthermore, the speaker notes that when the Warren Court extended the exclusionary rule to the states, it was not a widely accepted practice among the states, unlike other rights that were already part of the "lived constitution" in many jurisdictions. This area is highlighted as the one where the Warren Court "strayed furthest" from a proper understanding of the unwritten constitution, and consequently, later courts have pushed back against it the hardest, making it the weakest part of the Warren Court's legacy.

Voting Rights: One Person, One Vote

The Warren Court affirmed a broad right to vote and to have that vote counted equally, encapsulated in the principle of "one person, one vote." This led to the end of malapportioned state legislative systems, where districts with vastly different populations had equal representation. In cases like Reynolds v. Sims, Chief Justice Warren famously stated that "representatives represent people, not trees or acres." This meant that congressional districts and state legislative districts (both upper and lower houses) had to be roughly equal in size.

While the Court cited the Equal Protection Clause of the Fourteenth Amendment, the speaker suggests that this was a "tricky" justification, as the framers of the Fourteenth Amendment primarily focused on racial discrimination in civil rights, not voting rights (which were addressed by the Fifteenth and Nineteenth Amendments).

The speaker proposes that a more fitting constitutional basis for these decisions could be found in the "Republican Government Clause" (Article IV, Section 4) and Section 2 of the Fourteenth Amendment. The Republican Government Clause, though narrowly interpreted before the Civil War, was embraced broadly by Congress during Reconstruction to ensure states met high democratic standards. Section 2 of the Fourteenth Amendment, which outlines penalties for states that abridge the right to vote, implies a fundamental right to vote equally. The Warren Court's decisions, by ensuring equal voting, aligned with this post-Civil War understanding of a federal role in upholding democratic principles in states.

The Warren Court's Enduring Legacy

The Warren Court, under the leadership of Earl Warren, Hugo Black, and William Brennan, fundamentally transformed American constitutional law over 16 years. Before the Warren Court (circa 1953), the landscape included:

• Massive racial segregation (Jim Crow): Widespread disenfranchisement of Black citizens.
• Malapportionment: Rural white areas were often overrepresented at the expense of urban Black areas.
• Limited application of the Bill of Rights: Many states suppressed free speech with impunity.
• Commonplace state-organized prayer: In public schools.
• Few constitutional rights for criminal defendants: Protected by judges.

Today, this world is largely unrecognizable. The Warren Court's decisions led to:

• The dismantling of Jim Crow.
• The establishment of "one person, one vote," ending massive malapportionment.
• The general application of the Bill of Rights against the states.
• Broad protections for free speech.
• The elimination of organized school prayer.
• Enhanced constitutional rights for criminal defendants (though the exclusionary rule has seen pushback).

While critics argued the Warren Court "made up" law, the speaker contends that, in general, the Court was faithful to the written Constitution, even if it sometimes used a less precise clause (e.g., Equal Protection for voting rights instead of Section 2 of the 14th Amendment or the Republican Government Clause; Due Process for incorporation instead of the Privileges or Immunities Clause). The Court channeled the "deep spirit of the Constitution."

Remarkably, many of the Warren Court's controversial decisions are now widely accepted across the political spectrum.

• Brown v. Board of Education: Both liberals (emphasizing integration and education) and conservatives (emphasizing government neutrality on race) affirm its correctness.
• Incorporation of the Bill of Rights: Conservatives, including the Roberts Court, have embraced this, extending rights like the Second Amendment to the states.
• Freedom of Speech (New York Times v. Sullivan): Both liberals and conservatives claim its principles, albeit with different interpretations.
• Voting Rights: Both sides pledge allegiance to the "one person, one vote" principle, even if they interpret its application differently.
• Religious Liberty: While organized school prayer is not returning, conservatives now argue for religious equality, advocating for religious schools in voucher programs or religious clubs in schools, accepting the basic premise of non-discrimination against religion.

The exclusionary rule remains the primary exception where the Warren Court's legacy has been significantly challenged and cut back.

The enduring influence of the Warren Court is evident in figures like Justice Anthony Kennedy, who as a young man witnessed Earl Warren's work in California, and whose judicial career reflects the continuity of the Warren Court's vision, albeit with conservative and liberal interpretations. The Warren Court's willingness to overrule numerous precedents set a new standard for judicial activism, a topic that warrants further discussion regarding the role of precedent in constitutional law.