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pariahs. Despite the yeoman service of the defense counsel,
the defendants were convicted and appealed to the Court of
Appeals. Writing for the Court, Judge Hastie, his holding
echoing the timeless thought of Justice Oliver Wendell Holmes,
vacated the judgments of sentence and reversed the convictions.
Hastie maintained that if the First Amendment meant anything,
it meant that it protected not only the thought that is loved
and revered, but also the thought that is loathed and deemed
alien. Hastie held that a Smith Act conspiracy is proved only if
the government can show a conspiracy to teach people to take
concrete action toward the violent overthrow of the existing
government as soon as possible.
In Lemon v Kurtzman, the plaintiff challenged the
constitutionality of a Pennsylvania statute that provided public
funds to private schools for teachers' salaries and textbooks.
The Court of Appeals overruled the challenge. Hastie dissented
on the basis that the statute violated the separation of church
and state. In particular, Hastie saw the statute as occasioning a
widespread and pervasive intermingling of politics and religion.
Moreover, the legislation granted the state the authority to
monitor the operations of the Catholic schools. To Hastie, this
was constitutionally anathema.
Hastie's dissent was vindicated when the case reached the
United States Supreme Court which, speaking through Chief
Justice Warren Burger, established the Lemon test, which
has remained for nearly fifty years a settled corollary of First
Amendment jurisprudence.
Mentored by Frankfurter, Hastie did not wholeheartedly
embrace the Houstonian notion of using the courts as
instruments of social change and the promotion of racial
equality. Like Frankfurter - and Frankfurter's intellectual
antecedent, Justice Oliver Wendell Holmes - Hastie placed his
trust in the potential of an enlightened electorate who would
elect informed and enlightened representatives who would, in
turn, enact informed and enlightened legislation.
Following the inauguration of President John F. Kennedy,
Hastie found himself on the short list for nomination to the
United States Supreme Court to replace Justice Charles Whitaker
who had proved unable to manage the crushing, man-killing
work expected of a Justice. Hastie's chances to fill the vacancy
had to overcome two obstacles. First, it was 1961 and southern
Senators James Eastland, Richard Russell, Sam Ervin, and John
Stennis moved quickly to strangle in its crib the idea of an
African American on the United States Supreme Court. Second,
and oddly enough, Hastie's prospective nomination was opposed
by Chief Justice Earl Warren and Justice William Douglas. They
saw Hastie as too conservative. Hastie, an articulate, persuasive
disciple of Frankfurter whom Warren and Douglas loathed,
would be an impediment to the breathtaking transformation
of constitutional jurisprudence for which Warren and Douglas
were gearing up in the 1960s. Lastly, in a breathtaking display



of intellectual arrogance, Kennedy's Deputy Attorney General,
Nicholas Katzenbach, considered Hastie as "too pedestrian" for
the United States Supreme Court.
The vacancy was filled by Byron White, and the similarities
between Hastie and White were striking. Hastie graduated
magna cum laude from Harvard Law School and White
graduated magna cum laude from Yale Law School. Both men
were Phi Beta Kappa. Both men were fine athletes, Hastie a
sprinter/hurdler at Amherst, White an All-American football
player at the University of Colorado. Hastie was active in
Democratic politics in the 1930s and 1940s, White active in the
1950s. Both men served in the federal government, Hastie at the
War Department, White at the Justice Department.
It can be legitimately argued - and has been so argued by
Justice Thurgood Marshall - that the Constitution was defective
at birth in so far as it tolerated, protected, and even encouraged
the institution of chattel slavery. However, it can be argued with
equal legitimacy that the Constitution also provided the legal
means, substantive and procedural, by which the toxic residue
of slavery would be eliminated from the American body politic.
There are, of course, no great men; there are only great challenges
which ordinary men are forced by circumstances to recognize,
address and overcome. It fell to Houston, Hastie, Marshall and
their associates to meet the challenges interposed by Jim Crow
and bitter racial animus. These men battled the Klansman's
noose, the racist's shotgun, the night rider's whip and the voting
registrar's administrative shenanigans.
Hastie's concept of the courts' role was an amalgam of
judicial restraint and judicious vigilance. He appreciated,
respected and encouraged the robust role that the citizens,
through their duly elected representatives, have on governance;
so long as the legislation has a rational basis, its constitutionality
should be sustained even if it is considered by the reviewing
court to be unnecessary, foolish, or even misguided. Only if
legislation violates a specific and cognizable provision of the
Constitution should it be subject to modification. This was the
essence of representative democracy. Hastie wrote:
The democratic branches may be viewed as providing
government with drive while the oligarchic courts provide
breaking power. This is true even though judicial restraint
on government in one direction may perforce provide a
powerful stimulus to movement on the other. But, primarily
the courts do not serve to make our system run. Rather they
serve to prevent it from running wild.
It was on and over the shoulders of lawyers such as Houston,
Marshall, and Hastie that Barack Obama climbed to accept the
highest office in the nation's gift. Ernest Hemingway defined
courage as grace under pressure, and it is beyond question that
from the mean streets of Knoxville to the hushed corridors of
the United States Court of Appeals, Hastie demonstrated that
especial grace under pressure.

SIDEBAR Spring 2018

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