Broderick Tradition, the Origins of Free Speech in America, and the Philadelphia Lawyer

The following is a speech that was given at a Naturalization Ceremony by Raymond Broderick, United States District Court Judge, and father of attorney Timothy B. Broderick, who aspires to live in the tradition of a Philadelphia lawyer.

It was in Philadelphia, the city where I was born, the city where I was a “Philadelphia Lawyer” for many years, and the city where, for the past sixteen years, I have served as a federal judge, that the Constitution of the United States was written.
The traditional expression, “You need a ‘Philadelphia Lawyer’” was coined more than 250 years ago when a Philadelphia lawyer, Andrew Hamilton, successfully defended a New York newspaper publisher, John Peter Zenger. Hamilton was not only a great lawyer, but was also the architect of Independence Hall, the building where the Constitution was written. He was retained in 1735 to represent Zenger who had published outspoken criticisms of the autocratic Governor of the New York colony, and who was imprisoned for having done so. Zenger was charged with seditious libel which in colonial times was defined as the publication of a matter critical of the Crown or one of its government officials.
Truth was no defense. The attorneys originally retained by Zenger charged the judge hearing the case with bias against their client, and were immediately disbarred by the court. Zenger was then advised to retain the Philadelphia lawyer, Andrew Hamilton, who could not be disbarred by the colonial Governor of New York.
During that trial over fifty years before the drafting of the United States Constitution, Hamilton perceived the historic implications of the case — a free press was on trial, one of the basic tenets of liberty was at stake.
At the beginning of the trial, Hamilton requested, but was denied, the opportunity to prove the truth of the criticisms contained in the articles. However, Hamilton was successful in making his now famous address to the jury in which he asserted that seditious libel should be treated like every other crime in that the jury should have the right to determine whether or not the defendant was guilty or not guilty. In his closing remarks to the jury, he stated:
The loss of liberty . is worse than death. It is the best cause; it is the cause of liberty. …Every man, who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and incorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity and our neighbors, that to which nature and the laws of our country have given us a right — the liberty — both of opposing and exposing arbitrary power … by speaking and writing the truth.
When the jury returned with a verdict of “not guilty”, Hamilton was hailed as a hero, and the word went through the colonies that only a “Philadelphia Lawyer” could have prevailed. Hamilton’s address to the jury and the resulting verdict of “not guilty” have been referred to as the “Day-Star of the American Revolution.”
When the Constitution was drafted some fifty years later, the document reflected the political philosophy of the men charting the future – of a new- nation……The drafters of the Constitution believed, as did Hamilton — the first “Philadelphia Lawyer”, that the power of the government must be limited and never permitted to interfere with the inherent dignity of the individual, and his or her right to freedom and justice.
The United States Constitution serves as a blueprint for our Nation’s government. The delegates to the Constitutional Convention created a central government with authority in national affairs, reserving local affairs to the states. They steered the course between the dangers of tyranny and ineffective government by mandating a system of checks and balances: a two-house legislature (the Senate where each state has equal representation and a House of Representatives where the representation is based upon population), an executive branch with an elected president at the helm, and an independent judiciary appointed for life to be free of the political pressures that accompany elected office. The document provides strict limitations on all of the granted powers, it contains provisions for amendment, and vests sovereignty in the people.
As augmented by the Bill of Rights and the Civil War Amendments, the Constitution is a sparkling vision of the supremacy of the human dignity of every individual. This vision is reflected in the very choice of a democratic form of government designed to provide a voice for each individual. This vision manifests itself most dramatically in the specific prohibitions of the Bill of Rights, a term which is used by many to describe the first ten amendments to the Constitution. It is a vision that has guided our people throughout our history, although the precise rules by which we have protected fundamental human dignity have been changed from time to time in response to transformations of social conditions and the evolution of our concepts of human dignity.
One cannot read the Constitution without recognizing that it embodies substantive value choices. The Constitution places certain values beyond the power of the legislature, and beyond the reach of any political majority. While the drafters of the Constitution placed their faith in a democratic form of government, their adoption of a system of checks and balances and guarantees of rights to the individual make it clear that theirs was not a blind faith. As United States Supreme Court Justice William J. Brennan, who has served longer than any other Justice currently on the Supreme Court, put it, “Faith in democracy is one thing, blind faith quite another.”
The delegates who drafted the Constitution were the ablest men of their day. They designed the document for posterity. Their principles for a government by the people with its guarantees of individual liberty and justice were couched in general terms of universal application. The principles are adaptable and must be interpreted in our time to cope with current problems and current needs. This is the function of the federal courts.
While the officials serving in each branch of our government take an oath to obey the commands of the Constitution and to act within constitutional boundaries, it is the federal courts which have the power to refuse to give effect to legislation or other official action which is inconsistent with the courts’ interpretation of the Constitution. While the Constitution does not expressly confer such power upon the federal courts, Chief Justice Marshall in his landmark opinion in Marbury v. Madison, stated:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. … If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislatures; the constitution, and not such ordinary act, must govern the case to which they both apply.
Since Marbury v. Madison was decided in 1803, approximately 133 Acts of Congress have been ruled unconstitutional and thus, invalid and unenforceable. Similarly, over 950 state laws have been declared unconstitutional and unenforceable.
Most Americans think of the Bill of Rights as the source of their liberties. Some civil rights were guaranteed to individuals by the Constitution when it was first adopted, such as the right to trial by jury in criminal cases and the right to Habeas Corpus, the writ used to free a person from illegal confinement, described as “the great writ of Liberty.” It was not until four years later, in 1791, that the Constitution was amended to include the first ten amendments, our “Bill of Rights”. It was not, however, until the Fourteenth Amendment was adopted 79 years later that the specific guarantees of the Bill of Rights were made applicable to the states.
Prior to the passage of the Fourteenth Amendment, the Supreme Court had made it clear that the Bill of Rights was applicable only to the federal government. In 1833, in Barron v. Mayor of Baltimore, the Supreme Court held in an opinion written by Chief Justice Marshall that the Bill of Rights operated only against the power of the federal government and not against that of the states. The Federal Constitution, he stated, “was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.”
It was only after the Civil War that the demand arose for the national protection of individual rights against potential abuses of state power. The war exposed a serious flaw in the notion that states could be trusted to nurture individual rights. After the great battle over slavery had been fought, it became apparent to the people that it could no longer be assumed that there was an identity of interests between the states and the inherent right of the individual to liberty and justice. In fact, the primary impetus for the ratification of the Fourteenth Amendment was the fear that the former Confederate states would deny newly-freed persons the protection of life, liberty, and property formally provided by the state constitutions. But the majestic goals of the Fourteenth Amendment were framed in terms of more general application: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor shall any state deprive to any person within its jurisdiction the equal protection of the laws.”
Section 5 of the Fourteenth Amendment further authorized Congress to enforce its requirements through appropriate legislation. Thereafter, in March 1875, Congress granted the federal courts jurisdiction “of all suits of a civil nature at common law or in equity . . . arising under the Constitution or laws of the United States. . . .” This legislation revealed Congress1 intention to leave the definition and enforcement of the protections and prohibitions of the Fourteenth Amendment to the federal judiciary. The authors of the Fourteenth Amendment, like the authors of the original Bill of Rights and the Constitution, realized that the written guarantees of liberty are mere paper protections without an independent judiciary to define and enforce them.
Since 1961, the Supreme Court has interpreted the Fourteenth Amendment as nationalizing civil rights, making the great guarantees of life, liberty and property binding on all governments throughout our Nation. In so doing, the Court fundamentally reshaped the law of our land.
One of the first of the Supreme Court’s decisions applying the protection of the Bill of Rights to the states by reason of the Fourteenth Amendment is Mapp v. Ohio. In Mapp, our Supreme Court applied the Fourth Amendment protection against unreasonable searches and seizures to the states, excluding the introduction
of evidence illegally obtained. Later, the Eighth Amendment’s prohibition against cruel and unusual punishment was applied to the states in Robinson v. California. In Gideon v. Wainwright the Supreme Court held that the due process clause required the states to appoint counsel for indigent defendants charged with 12
serious state criminal offenses. In Malloy v. Hogan, the Supreme Court made it clear that the protections of the Fifth Amendment were equally applicable to the states, and since Miranda v. Arizona, the police in America are required to warn every person taken into custody of their constitutional right to remain silent and to have counsel. Furthermore, in Brown v. Board of Education, the Supreme Court overturned its earlier position upholding “equal but separate” facilities for whites and non-whites by compelling the integration of public schools. In Brown, the Supreme Court stated: “To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” These are some of the great triumphs resulting from the federal judiciary’s interpretation of our Constitution. As has been said, “The Constitution means only what the federal courts of the United States say that it means.” There are some who claim fidelity to what they call “the intentions of the Framers.” This view demands that judges discern exactly what the framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a doctrine which upholds constitutional claims only if they were within the specific contemplation of the framers. As stated by Supreme Court Justice Brennan: “Those who would restrict claims of right to the values of 1787 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.”
Justice Robert Jackson stated that the burden of judicial interpretation is to translate “the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.” It is now the way of life in the United States that social, economic, philosophic, and political issues are presented to the courts in the form of lawsuits. The constitutional issues presented in lawsuits are generally issues upon which our contemporary society is deeply divided. Under our system of justice, a lawsuit seeking a determination of a constitutional issue must first be filed in a trial court, such as the United States District Court where I now preside. Generally it is the trial judge who must first decide the constitutional issue. Our system of justice is sometimes referred to as an “adversary system.” There is no doubt that the constitutional issue presented in the litigation is vigorously contested. In a civil matter, the adversaries are the plaintiff and the defendant; and in a criminal case, they are the Government and the defendant. They are the adversaries, and they do engage in legal combat. After the trial judge decides the issue, the case usually proceeds through the adversary process by an appeal to the Circuit Court of Appeals. Finally, the United States Supreme Court will then determine whether to issue a Writ of Certiorari, the discretionary device used by the Supreme Court to choose the cases it will hear. In the event the Supreme Court decides to hear the case, after more argument by the adversaries, the Court will write an opinion wherein the majority of the nine Justices will then determine the meaning of the United States Constitution on the issue. It is the Supreme Court of the United States which has the power to ultimately resolve the meaning and application of the Constitution.
It is somewhat over-simplistic, however, to say that the Constitution means only what the Supreme Court says that it means because there are occasions when the meaning of our Constitution is delineated by an appellate court and our Supreme Court declines to hear the appeal by denying the petition for a Writ of Certiorari.
By declining to hear the appeal, our Supreme Court is usually considered to have given approval to the appellate court’s interpretation of the Constitution. Our adversary system has served our Nation well over the past 200 years. It is a system which urges our people to litigate the issues without resorting to violence. Constitutional interpretation for a federal judge is, for the most part, obligatory. When litigants approach the bar of the court to adjudicate a constitutional dispute, they justifiably expect an answer. Judges cannot avoid a definitive interpretation because they feel unable to, or would prefer not to. Unlike literary critics, judges cannot merely savor the tensions or revel in the ambiguities — judges must decide. As a distinguished professor of law stated a few years ago in an address to federal judges: “The Third Article has caused you [federal judges] to be, in effect, the Conscience of the Nation. … It is the Constitution that ordains the process that you [federal judges] say is due is the process that is due, and the protection you (federal judges] say is Equal is Equal Protection of the Law.” As a trial judge in the federal court I have been required to decide many constitutional issues over the past sixteen years. By way of explanation, I would like to acquaint you with a few of the cases tried before me where a constitutional issue was decided.
In 1979 when Pope John Paul II visited the City of Philadelphia, the officials of the City had expended public funds for the construction and preparation of a platform upon which was erected an altar to be used by the Pope and the clergy in the celebration of a Mass before approximately 1,000,000 people. In Gilfillan v. City of Philadelphia, suit was brought by taxpayers who were residents of Philadelphia to enjoin the city from expending funds to build the platform for the Pope alleging a violation of the First Amendment’s establishment clause. That clause assures that the government will not intrude upon religious liberty and was designed, in part, to assure that the advancement of a church or religion would only come from the voluntary support of its followers and not from the state. My decision was that the establishment clause of the First Amendment prevented the expenditure of public funds for a platform which was planned and used exclusively for a religious service. The First Amendment of the Constitution explicitly provides that the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” This clause has been held to have erected a wall of separation between the Church and the State.
This determination was affirmed by our Circuit Court of Appeals, and the United States Supreme Court denied the Petition for a Writ of Certiorari. The Constitution guarantees to every man, woman and child in the United States the “freedom of religion”. Just recently, the United States Supreme Court held in Hobbie v. Unemployment Appeals Commission of Florida that it was unconstitutional for a state to deny unemployment compensation benefits to a discharged employee who because of sincerely held religious beliefs refused to work between sundown on Friday and sundown on Saturday. Our courts have consistently interpreted the First Amendment to guarantee the freedom to live with or without a religious belief. Although this document was written for a new Nation at a time when our Nation was overwhelmingly Christian, it is of interest to note that the Constitution does not limit the freedom of religion to Christians. It guarantees this freedom to any and all religions.
In 1976 in Resident Advisory Board v. Rizzo, individuals, all of whom were poor and many of whom were black, were on the waiting list for public housing. An action was brought in their names against the Mayor of the City of Philadelphia and other public officials claiming that these public officials were violating the constitutional rights of those on the waiting list by preventing the construction of government-funded houses in a predominantly white neighborhood in the city. After a lengthy trial, I found that these public officials had violated the constitutional rights of these individuals and ordered the construction of the houses to proceed immediately. It was my opinion that the defendants had acted with a racially discriminatory purpose in terminating the construction of the houses and thereby violated the Constitution. The Judgment Order required that upon completion of the construction, at least 5070 of the occupants of these houses should be non-white. I am happy to report that it appears that the residents occupying these 220 new houses are living peacefully side by side in the city where the Constitution was written. This is another illustration where the United States Supreme Court by denying Certiorari, approved the opinion of our Circuit Court of Appeals affirming the holding that the constitutional rights of those on the waiting list for public housing had been violated by the discriminatory actions of those government officials who had terminated construction.
Halderman v. Pennhurst State School and Hospital is a civil action which has been actively litigated for more than eleven years. It has required more than 2,000 docket entries, more than 500 Court orders, twenty-eight published opinions, and three arguments before the United States Supreme Court.
In this case, the retarded residents of Pennhurst, a large institution operated by the state, brought an action claiming that their constitutional rights were being violated in that the institution was not providing them with minimally adequate habilitation.
The evidence presented at the trial showed that these retarded residents of Pennhurst were not receiving the care, education, and treatment minimally adequate for their habilitation. I made the determination that these retarded residents were being denied their constitutional right to habilitation in the least restrictive setting, and ordered that Pennhurst be closed and that each retarded resident receive an individualized habilitation program in a community living arrangement. The litigation recently terminated with a settlement pursuant to which the State of Pennsylvania has agreed to transfer each retarded resident to the community and provide them with adequate habilitation. The state also agreed to close Pennhurst as an institution for the retarded. It is ironic that when the litigation was. tried in 1977 all the parties, including the experts in the field of mental retardation, were in agreement that Pennhurst- was providing inappropriate and inadequate care, training, and education for its retarded residents. The evidence presented at trial showed that they were being subjected to dehumanizing practices. Physical restraints were used as control measures, and psychotropic drugs were used for control and not for treatment. The great majority of the residents at Pennhurst had lost the few skills they possessed at the time of their admission.
Empirical evidence has vindicated the opinion of the retardation experts and this judge that institutionalization of the retarded does not enable them to develop their full potential. The retarded residents are now living in the community and are enjoying a fuller life. They are now receiving minimally adequate habilitation, and developing skills which are enabling them to reach their full potential. After the trial of the case, I held that when a state involuntarily commits a retarded person, it must provide that person with programs which will afford a reasonable opportunity to acquire such skills as his or her capabilities will permit, and that due process requires that once a state undertakes the habilitation of a retarded person it must do so in the least restrictive setting consistent with his or her habilitative needs. The judgment which I rendered in the Pennhurst case was appealed to the Third Circuit Court of Appeals where the entire court sat en banc to decide the appeal. The majority opinion held that the Developmentally Disabled and Bill of Rights Act provided mentally retarded persons with a right to adequate treatment. This Act was one which had not been considered at the trial level. The Circuit Court of Appeals stated that while there was substantial case law supporting constitutional violations, it preferred to resolve the controversy on statutory grounds thus avoiding the necessity of deciding the constitutional issues. On April 20, 1981, the United States Supreme Court, in an opinion written by Justice (now Chief) Rehnquist, reversed the judgment of our Circuit Court of Appeals on the ground that the Developmentally Disabled Assistance and Bill of Rights Act did not create any substantive rights for the retarded and remanded the case to the Circuit Court of Appeals to address the federal constitutional issues, and the claims under the Pennsylvania statute.
On February 28, 1982, our Circuit Court of Appeals pursuant to the Supreme Court’s remand, issued its second en banc decision, and again affirmed the judgment by holding that the Pennsylvania Mental Health/Mental Retardation Act of 1966 granted to Pennsylvania’s retarded citizens the right to adequate habilitation in the least restrictive environment.
The Supreme Court granted Certiorari and after hearing oral argument, on not one but two occasions, again reversed the judgment of the Third Circuit on January 23, 1984. In a five to four decision, the Supreme Court held that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law. Once again the Supreme Court remanded the case to the Court of Appeals for a determination of the federal constitutional issues. While the case was pending for the third time before our Circuit Court of Appeals, the parties entered into a settlement agreement in which the state agreed to close Pennhurst, to transfer its residents to community living arrangements, and to provide the residents with minimally adequate habilitation.
The now-available empirical evidence has vindicated the opinion that institutionalization of the retarded does not provide minimally adequate habilitation. During the course of this litigation, transfers from Pennhurst to community living arrangements were successfully accomplished. The care, training, and education received by them in the community has enabled them to experience life more fully. Indeed, many parents and other relatives of the retarded who were initially apprehensive and expressed objections to having their loved ones transferred from Pennhurst to the community are now ardent supporters of habilitation outside the institution. Recent studies show that former residents of the institution have experienced significantly faster developmental growth in the community than they did in the institution; they are now receiving more services and more program time in the community than they did at Pennhurst; that prior to the transfer of a resident from the institution to the community, 6170 of families surveyed opposed the transfer, with 527o strongly disagreeing with this judge’s decision. However, six months after the transfer, the same families overwhelmingly approved the decision –8170 agreed with it (6470 strongly agreed) , and only 470 continued their disagreement. Following transfer to the community, families perceived their relatives’ general happiness to be much greater in the community than in the institution. Furthermore, the expenditure of public dollars per resident has been less in the community than at Pennhurst.
This recitation of the legal battle in Halderman v. Pennhurst shows that it is over-simplistic to say that our Constitution means only what our Supreme Court Justices say it means. The Supreme Court has yet to say that the retarded have a constitutional right to minimally adequate habilitation in the least restrictive setting, but since the Pennhurst litigation most are convinced that they do.
The United States is still a new Nation. We have not yet achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal. It is like the quest for excellence. It will be an eternal quest. A quest which we hope will continue in our courts with adversaries engaged in legal battle for decisions by judges who believe that an independent judiciary is the keystone of our constitutional system of government. As stated by Professor Fiss:
The Constitution is not a testamentary document that distributes to future generations a piece of property in the form of rights. Rather, it is a charter of governance that establishes institutions of government and the norms, standards and principles that are to control those institutions . . . Adjudication is one process by which these abstract ideals are given concrete meaning and expression and are thereby translated into rights.
The Constitution with its emphasis on individual rights and creating as it does an independent judiciary makes it imperative that our Nation have strong independent judges. As the legislative and executive branches become less accessible and responsive to those without the resources to influence the political process, the courts must become more accessible to people who otherwise may be powerless to deal with the government. The issue must be framed in terms of the proper role of the federal judiciary when other branches of government default on their constitutional responsibilities. Without independent, courageous judges, the Bill of Rights would frequently represent only hollow promises.
The framers of the Constitution did not intend that our individual rights be dependent on the will of the majority. If our country is to be a shining example of a land where human dignity is enshrined, it will be because of our ceaseless pursuit of the constitutional ideals protecting human dignity.
It is these constitutional ideals — jealously preserved and guarded throughout our history — which form the vital force for creative political thought within our Nation today. As we adapt our institutions to the ever-changing conditions of national and international life, the ideals of human dignity, liberty, and justice for all must continue to inspire and guide us. The Constitution with its Bill of Rights, with a strong, independent judiciary, has a bright future, as well as a glorious past. The spirit of the Constitution must continue to guide our Nation. As Andrew Hamilton told the jury in the Zenger case: “It is the best cause: it is the cause of liberty. …”