The Supreme Court: The Limits That Create Liberty & The Liberty That Creates Limits

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the political process is not "clean and clear." Among other such steps, Freund counts a strong 1957 decision that tightened the Smith Act by requiring proof that alleged Communists actually incited, not just advocated, overthrow of the Government. Another national air cleaner, says Freund, was last term's overruling of Washington State's vague loyalty oath requiring teachers to swear that they were not "subversive persons." Further bolstering free speech, the Court upset an Alabama public official's $500,000 libel judgment against the New York Times, ruling that a public official cannot recover from his critics unless he proves deliberate malice.

The Court's second great goal, says Freund, is "responsible Government," meaning one that abides by the rules, that keeps its own laws "when it brings the ultimate force of society to bear on an individual." Toward that end, Freund cites 1961 's Mapp v. Ohio, which for the first time has forced state and local police to get search warrants. In 1963, Justice Black triumphantly announced the overruling of 1942's Betts by the landmark Gideon v. Wainwright, which established the right to counsel in state criminal courts and set free Clarence Gideon, a Florida indigent found guilty of breaking into a pool hall. And last term, Black's 1947 Adamson dissent became law when the Court held that the Fifth Amendment privilege against self-incrimination applies to the states as well as the Federal Government.

National Due Process.This has caused cries that the Supreme Court is stacking the odds in favor of criminals. Indeed such decisions have made the policeman's lot no happier. But the Court believes with Black that criminal-law methods are the telltale "measures by which the quality of our civilization may be judged." And for the first time since 1791, virtually all the most important provisions of the Bill of Rights have become the state as well as the federal process due all Americans. Now demanded of the states are the entire First Amendment; the Fourth's guarantees against unreasonable searches and seizures; the Fifth's privilege against selfincrimination; the Sixth's right to counsel, jury trial and confrontation with witnesses; the Eighth's guarantee against cruel and unusual punishment.

These vindications of Mr. Justice Black do not leave him entirely in disagreement with the Court's current lonely dissenter, Justice John Marshall Harlan, Frankfurter's spiritual, if less persuasive, heir. (Legal wags call him "Frankfurter without the mustard.") Over and over, Harlan warns against the idea "that every major social ill in the country can find its cure in some constitutional 'principle' and that this Court should take the lead in promoting reform when other branches of Government fail to act."

Unfolding Limits? Black believes that the Court must act—but only to protect real fundamentals. When the Court curbed jury prerogatives, Dissenter Black snapped that "the Constitution long ago made the decision that juries are to be trusted." His brethren, he said, have "no power to treat as unconstitutional every state law or procedure that the Court believes to be 'unfair.' " In some ways, Black has become the Frankfurter restrainer of ebullient Justice Goldberg, who