[Cross-posted from The Atlantic]

By Carlton Larson

On Jan. 13, a federal grand jury indicted 11 members of the so-called Oath Keepers for seditious conspiracy. Such charges are exceptionally rare—and, quite obviously, extremely serious. If convicted, these defendants could face up to 20 years in prison.

And yet many Americans think that the charges should have been even more serious: treason against the United States. Although that’s not an implausible argument, the Justice Department made the right decision. Treason prosecutions would have introduced significant legal complexity, while doing very little to increase sentences. Seditious-conspiracy charges, by contrast, are perfectly pitched to the gravity of the offenses, and given the substantial evidence laid out in the indictments, should be relatively straightforward to prove.

Seditious conspiracy is defined as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.” In the past 30 years, there have been only four sets of indictments for this offense. Most notably, the Justice Department successfully convicted Omar Abdel-Rahman of seditious conspiracy for his role in the 1993 World Trade Center bombing. But the most recent seditious-conspiracy prosecution—of Michigan militia members in the early 2010s—was a fiasco. A judge dismissed the seditious-conspiracy charges, finding them unsupported by the evidence.

Some have raised concerns about the scope of the seditious-conspiracy statute. For example, the University of Wisconsin law professor Joshua Braver has warned that seditious-conspiracy prosecutions could be subject to significant abuse. After all, the literal language of the statute might cover actions such as the Women’s March, which interfered with Capitol operations during Brett Kavanaugh’s confirmation hearings. Braver prefers the charge of “rebellion or insurrection,” which he believes is a better fit for the events of January 6.

I disagree. Seditious conspiracy is an entirely appropriate charge for some of the January 6 participants, as I suggested at the time. The attack was aimed at the most essential ritual of democracy—the peaceful transfer of power. The possibility that prosecutors might abuse the charge in the future is hardly a reason to shrink from it now, when it is most applicable. To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.

These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.

It was also the charge brought in the very first federal treason cases—prosecutions of tax protesters in Pennsylvania following the Whiskey Rebellion of 1794 and Fries’s Rebellion of 1799. The Whiskey rebels attacked the home of a federal tax official and assembled a large group of armed men in opposition to the federal excise tax on whiskey. The Fries’s rebels released prisoners from federal custody out of opposition to a federal property tax. In both cases, Supreme Court justices held that the alleged conduct amounted to treason. The use of force to obstruct a particular federal law, they argued, constituted levying war against the United States.

Storming the Capitol to obstruct the Electoral Count Act and sending members of Congress fleeing in terror is far more egregious—and more of a direct affront to the government—than anything done by the Whiskey rebels or the Fries’s rebels. But the understanding of “levying war” may have changed. In a famous 1851 decision involving armed opposition to enforcement of the federal Fugitive Slave Act, Justice Robert Grier suggested that levying war against the United States requires an intent to overthrow the government entirely, not just to obstruct the operation of one particular law. It was a trial-level decision, but it may prove convincing to courts today. If so, the question would then become whether the defendants sought to overthrow the government in its entirety.

Applied to January 6, this sounds like a law-school-exam hypothetical from hell. After all, the defendants would insist that, far from trying to overthrow the government, they were in fact supporting the incumbent president of the United States. If they honestly, but foolishly, believed that the election was stolen, did they have the requisite criminal intent to commit treason? Who exactly is overthrowing the “government” if one branch decides to wage war on another? Can one overthrow the government by attacking only the legislative branch? These questions are profoundly interesting from a philosophical perspective, but I fully understand why Justice Department attorneys would recoil in horror from having to debate them in court.

A further obstacle to a treason charge is far more mundane. The Constitution requires that treason convictions be supported either by two witnesses to the same overt act or a confession in open court. Although no court has ever addressed the question, videotape evidence is likely not a sufficient substitute for two witnesses; in cases arising out of World War II, for example, the Justice Department decided that radio-broadcast recordings of defendants distributing enemy propaganda were not legally sufficient for conviction. Unless the Oath Keepers begin turning on one another, finding two witnesses to distinct, overt acts may be difficult.

Given all the legal complexities the Justice Department has to consider, seditious conspiracy was clearly the right choice. In a recent speech, Attorney General Merrick Garland pledged that “the Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The most recent indictments are a promising step in that direction.

[Cross-posted from The Washington Post]

By Carlton F.W. Larson

The scenes are nearly unbelievable: An armed mob storming the U.S. Capitol to disrupt the counting of the electoral votes. The rioters claimed to be patriots, some of them even waving the Revolutionary War flag “Don’t Tread on Me.” So what would our nation’s founders have thought about this conduct?

The answer is pretty clear — they would have denounced it as treason. Article III of the Constitution limits the crime to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Adhering to enemies addresses aid to foreign nations or groups with whom the United States is in a state of open war. By contrast, “levying war” primarily addresses internal concerns. The Constitution’s drafters understood the term “levying war” to include any armed insurrection to obstruct a law of the United States. When tax protesters in western Pennsylvania attempted to resist the collection of federal excise taxes during the Whiskey Rebellion, President George Washington formed an army to fight them; his administration later indicted a number of the rebels for treason. A few years later, when men in eastern Pennsylvania used force to prevent the collection of a federal property tax, the John Adams administration prosecuted the leaders for treason. Supreme Court justices presiding over these trials all agreed treason had been committed. In 1842, Justice Joseph Story summarized the law, concluding it was treason “by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity.”

An armed attack on the Capitol to obstruct the counting of the electoral votes easily qualifies as treason under the framers’ original understanding of the Treason Clause. Indeed, the case is even stronger than it was in the Whiskey Rebellion and Fries’s Rebellion cases, none of which involved a direct attack on the national capital.

But in a perverse irony, the MAGA mob may be protected from a treason prosecution because of an 1851 case arising out of the Fugitive Slave Act. The Millard Fillmore administration prosecuted men in Pennsylvania who fought the return of enslaved people to captivity (and in the process killed Edward Gorsuch, a distant relative of current Supreme Court Justice Neil M. Gorsuch). Presiding over the trial, which was held in the second floor of Independence Hall in Philadelphia, Supreme Court Justice Robert Grier held that resistance to one particular law was not enough — treason by levying war requires a design to overthrow the government itself.

That’s where things get tricky. Grier’s decision has never been formally accepted (or repudiated) by the Supreme Court, but it seems likely that a federal court would follow it. Did the MAGA mob attempt to the overthrow the government of the United States, or did they just seek to obstruct one particular law (the Electoral Count Act)? A prosecutor could certainly argue it was an attempt on the government itself: The Electoral Count Act is not just any law. It’s about the peaceful transfer of power. And an attempt to thwart the certification of President-elect Joe Biden’s lawful accession to power through force looks very much like an attempt to overthrow the government itself. I have repeatedly written about the importance of not tossing the term “treason” around lightly. But of all the events of the last four years, this comes the closest to the framers’ understanding of the crime.

On the other hand, if treason charges ever went to trial, lawyers for the defendants would push Grier’s opinion for all it’s worth, insisting there was no intent to overthrow the United States government as such; they were simply protesting what they viewed, however benightedly, as a stolen election. The Constitution as it was interpreted in 1851, not the original Constitution of 1787, might then come in to save them.

But there are ample other criminal charges that can more easily be brought. Seditious conspiracy is an obvious fit. This statute prohibits, among other things, “two or more people” from conspiring to “by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy carries a maximum penalty of 20 years in prison; it was most notably used recently to prosecute the 1993 World Trade Center bombers. The MAGA mob’s actions on Wednesday fit this statute to a T. Other criminal statutes, ranging from simple trespass to firearms offenses, will also come into play. District of Columbia police had arrested at least 52 people by Wednesday evening, mostly for allegedly carrying illegal weapons or violating the city’s emergency curfew.

No matter what charges are forthcoming later, one thing should be crystal clear: No person storming the Capitol to overthrow an election has any business claiming to be an heir to our country’s founders. George Washington, who laid the foundation of the Capitol building, would have viewed the attack as treason, even if modern law might not necessarily agree.

[Cross-posted from Zócalo Public Square]

By Carlton F.W. Larson

The last four years have been a strange time to be a scholar of American treason law. The members of this tiny (and I mean really tiny) group used to live pretty quiet lives. We could happily toil away on historical matters, undisturbed by the din of the daily headlines.

Besides, who needed modern distractions when the history was so thrilling? The story of treason—attempts to overthrow the government or to aid our enemies—is nothing less than the story of America itself. Our country was forged in the American Revolution by people willing to commit treason against Great Britain, and the Confederate cause in the Civil War was the largest-scale act of mass treason in our history. The individual characters are riveting, from Benedict Arnold and his sordid betrayal of West Point to the poet Ezra Pound, prosecuted for treason for broadcasting fascist propaganda from Mussolini’s Italy. The accused persons represent every segment of society, from a former vice president (Aaron Burr) to the local leader of a miners’ union prosecuted for treason against West Virginia in the 1920s.

For many years, I worked on the book that would become The Trials of Allegiance: Treason, Juries, and the American Revolution. I could proceed at a glacial George R.R. Martin-agonizing-over-The Winds of Winter pace because there was no obvious connection to current events. In 2015, a Zócalo Public Square essayist confidently proclaimed that “We’re living in what has to be the nation’s golden age of loyalty.” The essay was headlined, “Is Treason now Just a Punch Line?”

And then that world was turned upside down with the political rise of Donald J. Trump. The first phone call from a reporter came in July 2016, after Trump publicly encouraged Russia to find Hillary Clinton’s emails. The question—which I would quickly become used to—was: “Is this treason?” And the answer (which I also quickly became used to, given the Constitution’s narrow definition of the crime), was no. But the calls kept coming, becoming a flood after Trump’s inauguration, as antennae perked up at further revelations about Michael Flynn, Russian interference in the election, the Mueller investigation, and the infamous meeting at Trump Tower.

Around this time, my literary agent asked me to write a second book about treason, one that would bring the story up to the present day, and that would lay out the byzantine law of treason in a manner accessible to interested citizens. I wasn’t sure I was ready to take on another book so quickly, but as misguided treason charges and countercharges swirled through our national debate, I came to realize that we were in a unique historical moment. If we were going to be arguing about American treason law so much, we should at least have a better understanding of what it is—and maybe even more importantly, what it is not.

All nations have treason laws to deal with the problem of disloyalty. But if those laws aren’t carefully circumscribed, they can easily become a tool of domestic oppression—a tendency the framers of the U.S. Constitution recognized all too well. In the tumultuous years prior to the adoption of the Declaration of Independence, British authorities had threatened to prosecute American tax protestors for high treason in England, far from the protections of a local jury. Prominent attorney James Wilson, who represented Pennsylvania at the Constitutional Convention, explained the problem this way at the Pennsylvania ratifying convention: “Crimes against the state! and against the officers of the state! History informs us that more wrong may be done on this subject than on any other whatsoever.” Wilson and the other framers of our Constitution accordingly chose to define the crime directly in the document itself—and to define it narrowly. Article III, Section 3 restricts the offense to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Although these phrases pose many interpretive difficulties, they clearly prevent treason prosecutions for offenses such as criticizing the government or organizing a political party.

There have been few actual treason prosecutions under the U.S. Constitution, and only one person, Hipolito Salazar, has been executed for treason under federal authority (a truly bizarre case from the Mexican-American War—Salazar was a Mexican citizen, tried and convicted on Mexican soil). A handful of American presidents have been traitors, though none during their time in office—and none were prosecuted. Our first five presidents all committed treason against Great Britain during the Revolutionary War, well before the adoption of the Constitution. During the Civil War, former president John Tyler committed treason when he served in the Confederate House of Representatives. His votes in favor of Confederate military expenditures constituted participation in levying war against the United States. Curiously, the older crime of treason against individual states was not definitively eliminated by the Constitution and states have occasionally brought charges, most notably the 1859 prosecution of John Brown bythe state of Virginia for leading the raid on Harpers Ferry.

Other than the distinctive case of the secessionists during the American Civil War, it’s rare for disloyalty to rise to the level of treason as defined in the Constitution. So why is it that treason—or “treason”—is now so regularly discussed? There are two simple reasons: what Donald Trump does, and what Donald Trump says.

First, for many people, Trump’s conduct raises considerable suspicions about his underlying loyalty. Trump consistently seems to place Russia’s interests ahead of America’s, whether by ignoring or condoning blatant Russian misbehavior or by kowtowing to Vladimir Putin. Indeed, Trump’s consistent failure to publicly criticize Putin is perhaps the most bewildering aspect of his presidency. Many Americans fear the worst, pointing to news reports suggesting that Trump’s tangled financial dealings involve significant debts to Russian sources. It is not irrational to suspect that Russia may have all kinds of personal or financial kompromat on him.

In a colloquial sense, Trump’s conduct—far beyond the bounds of normal presidential behavior—may have betrayed the country. But nothing Trump has done (or is alleged to have done) formally rises to the level of treason as a matter of criminal law. Foreign nations like Russia are “enemies” only if we are in a state of open war with them. Despite all the covert back and forth with Russia, we are simply not in a state of open war. For similar reasons, Americans who spied for the Soviet Union, like the Rosenbergs or Aldrich Ames, were prosecuted for espionage (which doesn’t require a state of open war), not treason.

Still: “it’s not technically treason” is a strange thing to have to say about an American president.

Second, unlike any of his predecessors, Trump uses his presidential podium to routinely accuse other Americans of treason, targeting congressional Democrats, anonymous critics, James Comey, Adam Schiff, and, perhaps most notoriously, his predecessor, President Barack Obama.  In a Tweet (naturally), Trump claimed that the “ObamaBiden Administration” had committed “treason” by spying on his 2016 presidential campaign. These accusations lack even the flimsiest basis in fact or law—but unfortunately many of Trump’s supporters take him at his word. They are convinced that actual traitors permeate the Democratic party and the federal government.

We have become so numb to the excesses of Trump’s rhetoric that it is easy to forget just how extraordinary this is. Treason is a capital offense and routinely described as the highest crime in American law, worse even than murder. Accusing a fellow American of treason is (or at least used to be) one of the most significant utterances a president could possibly make. But now it often doesn’t even make the news.

Since the current excitement over treason and disloyalty is so heavily tied to Trump’s distinctive behavior and rhetoric, it will likely dissipate significantly when someone else occupies the Oval Office. At the same time, even a defeated or termed-out Trump may continue making outrageous claims from the sidelines, thus risking continued pollution of our political rhetoric.

American treason law is a rich and rewarding field, one that is absolutely central to the larger story of America itself. On some level, I suppose I should be pleased that the subject into which I have invested so many years of research is now attracting a much wider audience. But, as fascinating and surreal as it is to be queried regularly by reporters about whether the president of the United States has committed treason, I’d much prefer to live in a world where that question doesn’t arise.

By Professor Carlton F.W. Larson

[Cross-posted from the Washington Post]

We now know that Donald Trump Jr., a high-level adviser to his father's presidential campaign, attempted to obtain opposition research from the Kremlin. To Trump's opponents, this finally proves explicit collusion between Trump's campaign and the Russian government. Still, it was astonishing to see the defeated candidate for the vice presidency of the United States, Tim Kaine, argue that the son of the incumbent president may have committed treason. He was not the only one to make the allegation, which proliferated on social media; journalists bombarded White House spokeswoman Sarah Huckabee Sanders with questions about "treason."

Assume everything that is being alleged against Donald Trump Jr. is true: that is, he knowingly met with a representative of the Russian government for the purpose of obtaining information, probably illegally obtained, that was harmful to the campaign of Hillary Clinton. Is this treason against the United States?

As a technical legal matter, no, and not even close. Article 3 of the United States Constitution limits the crime of treason to two specific offenses: levying war against the United States, and adhering to their enemies, giving them aid and comfort. It was deliberately crafted to exclude a wide variety of political offenses, such as criticizing the government.

None of the Trump Jr. allegations suggest conduct analogous to levying war against the United States, which generally requires some use of force in an attempt to overthrow the government. Nor does it amount to adhering to the enemy; for purposes of the Treason Clause, an enemy is a foreign nation or group with which the United States is in a state of war, either declared or actual. We are not in a state of war with Russia. In the 1950s, Julius and Ethel Rosenberg were executed for espionage, not treason, because the Soviet Union, although an implacable adversary, was not technically an enemy. We were formally at peace with the Soviet Union then, and we are formally at peace with Russia now.

So for purposes of American treason law, the details of Donald Trump Jr.'s relationship with Russia are irrelevant. He could be a paid foreign agent of Russia; he could take an oath of allegiance to Russia; he could even bug his father's White House bedroom on behalf of Russian intelligence. None of those actions would amount to treason in the narrow sense that our Constitution defines it.

Nonetheless, Trump Jr.'s alleged conduct raises serious questions under other provisions of federal law, all of which will be closely evaluated by Robert Mueller's investigative team. A determination that Trump Jr. did not commit treason is a far cry from finding his actions to be legal. It is against the law, for instance, for U.S. political campaigns to accept anything of value from foreigners.

In a broader sense, though, I understand Kaine's invocation of treason. Coordinating with a foreign government to interfere in American elections is fundamentally wrong, deeply un-American, and, as noted, almost certainly illegal under a variety of federal statutes. In many other countries, this conduct would be obviously treason, no questions asked. Although I am not familiar with the details of Russian law, I have no doubt as to how Vladimir Putin would treat a Russian citizen who coordinated with the CIA to interfere with a Russian election.

American law, however, is different. We have chosen to define treason narrowly, and the body of law dealing with treason is arcane and not always easy to understand. As the U.S. Supreme Court put it in 1945, the Treason Clause's "superficial appearance of clarity and simplicity . . . proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty."

The upshot is a significant gap in our legal vocabulary. We do not have a good term to describe behavior that is not technically treasonous but nonetheless constitutes a betrayal of the United States. I do not have a good solution to fill this gap, but our political and legal discourse would be improved if we had one. In the meantime, even well-trained lawyers such as Kaine will instinctively reach for the label of treason in circumstances similar to those of Donald Trump Jr.

The following is a lightly edited version of a short talk I gave on the 800^th anniversary of Magna Carta for the September meeting of the Schwartz-Levi Inn of Court at UC Davis School of Law.

Tonight I will be discussing a few of the lesser known aspects of Magna Carta.  I'm sure you're all familiar with the broad outlines; the barons of the realm of England extracting various concessions from King John at Runnymede Field, and I won't rehearse that history in any detail.

Let's start with the words "Magna Carta."  When British Prime Minister David Cameron appeared on the David Letterman show in 2012, he admitted that he wasn't sure how to translate the Latin words Magna Carta.  But he said it with an English accent, so it didn't sound quite as stupid as it would have if an American had said it.  The basic translation, of course, is "Great Charter," but it's important to note that originally the sense of "Magna" as "Great" wasn't "great" in terms of significance but "great" in terms of size.  The document nowhere refers to itself as Magna Carta.  A clerk gave the charter this name a few years later to distinguish it from a smaller document known as the Charter of the Forest.  So the original sense of "Magna Carta/Great Charter" was more "physically big charter" than it was "significant charter."

If we were to go back in time and ask Englishmen in the 17^th century when Magna Carta was signed, they would have said 1225.  This year, 2015, would be the 790^th anniversary of Magna Carta, according to them.  And the monarch who signed Magna Carta was Henry III, not John.  This seems to be a rather significant discrepancy.

What explains it?  Well, King John immediately asked the pope to declare Magna Carta invalid because he signed under duress, and the pope did so.  After John's unexpected death in 1216, the document was re-issued under the name of John's son, the new boy king Henry III, and it was re-issued again in 1225, when Henry III had reached his majority.  It was this document, with significant deletions from the original, that later generations celebrated as Magna Carta, and in many ways appropriately so, because this was the only document that was of continued legal significance.  The 1215 document was invalid.  Only much more recently have we given more attention to 1215, King John, and the original text.

The text of Magna Carta contains numerous promises from the king to his barons and subjects.  Promises from kings to subjects are great, of course, but the real issue is enforcement.  Magna Carta had a solution, but it wasn't a particularly good one.  It provided for 25 barons to serve as enforcers of Magna Carta against the king.  If the king violated the provisions, the barons "shall distress and injure us in all ways possible - namely, by capturing our castles, lands and possessions and in all ways that they can."  As Harvard Law professor Larry Tribe has argued, "for all that we justly celebrate Magna Carta as the well-spring of the rule of law, its carefully wrought mechanism for legally restraining abuse of royal power was nothing more than institutionalized civil war.  Nothing could more strikingly illustrate the theoretical and practical difficulty of reining in the power of him who reigns."  This provision was not included in the re-issue under the Henry III, and it would take many more centuries before better answers to this problem, other than simply attacking the king, were formulated.

Magna Carta has become far more a symbol of constitutionalism than it ever was originally.  Generations of English and American lawyers have cited it to courts in support of personal liberties.  Indeed, the citations became so frequent that many English courts simply grew frustrated.  Chief Justice Roberts noted recently that if a lawyer is citing Magna Carta, he is probably losing.  This has been true for a while.  In the seventeenth century, a juror complained about the then typical practice of judges fining jurors for verdicts with which the judges disagreed.  When the juror cited Magna Carta, the judge responded, "Magna Carta, Magna Farta."  I challenge anyone to distinguish adverse precedent more concisely.                      

Today is California Admission Day, and the organizers of this program have asked me to connect California's admission to the Union in 1850 to Magna Carta of 1215.  This is not an especially easy task, but here's my best effort.  California's admission was signed into law by President Millard Fillmore.  But Fillmore was not supposed to be president.  He ascended to the presidency when President Zachary Taylor died unexpectedly, under mysterious circumstances, just two months earlier.  President Taylor, in February 1850, had approved the proposed California constitution, concluding that it was republican in form.  And here's the connection.  Zachary Taylor was a direct descendant of King John.  And he's not the only American president who is a direct descendant of King John.  So were Presidents Washington, Jefferson, Madison, John Quincy Adams, both Harrisons, Cleveland, both Roosevelts, Coolidge, Hoover, Nixon, Ford, both Bushes, and Obama.  Three of the four Presidents on Mount Rushmore are grandchildren, many times over, of King John.  So America owes a lot to the loins of King John.

And of course we all know King John was a bad king.  We don't call him John I, but simply John, because he so thoroughly soiled the name that no subsequent English monarch ever adopted it.  It is tempting to speculate that he is the source of our expression "going to the john," but, sadly, I have no evidence to back that up.  But we shouldn't completely dismiss him.  If John had been a model king, there would have been no Magna Carta.  Similarly, if James II had been a good king, there would have been no English Bill of Rights.  And if George III had behaved appropriately, there would have been no American Declaration of Independence or U.S. Constitution.  It brings to mind the old problem in Christian theology about the nature of Judas; without Judas's betrayal of Christ, there would have been no crucifixion and no resurrection.  So shouldn't Judas get at least some credit?  So too, perhaps, with these bad kings.  For every twenty toasts to Magna Carta, we should perhaps raise one to King John, even if he would have privately complained about being forced to sign a "Magna Farta."

Cross-posted from SCOTUSblog.

There’s a pretty strong consensus that Chief Justice Fred Vinson was the worst Chief Justice of the twentieth century.  The conventional view goes something like this: Vinson was a bumbling, incompetent political hack, an intellectual lightweight with minimal understanding of complex legal issues, a card-playing crony of Harry Truman who continued to advise Truman even after taking his seat on the Court, a reactionary with horrific instincts in key civil liberties cases, and, worst of all, a major obstacle to unanimity in Brown v. Board of Education.  By this account, the best thing Vinson ever did was to die of a heart attack at precisely the right moment – in the middle of the Brown proceedings in 1953, thus allowing his successor, Chief Justice Earl Warren, to author a unanimous opinion invalidating racial segregation in public schools.

Last spring, Indiana Law Review hosted a symposium on counterfactuals in constitutional history.  Professor Gerard Magliocca assembled a group of constitutional law scholars to explore various “What ifs.”  For this symposium, I asked the question, “What if Fred Vinson had not died of a heart attack in 1953?”  That is, what would have happened to constitutional law and the Supreme Court if Fred Vinson, and not Earl Warren, had presided over the final decision in Brown?

When I started this project, I assumed that Vinson would have dissented in Brown.  Yet my research quickly convinced me that this view was wrong.  Most likely, Vinson would have authored a unanimous opinion in Brown invalidating segregation in public schools.  Vinson, not Warren, would have been the author of one of the Court’s most significant decisions, guaranteeing him instant historical immortality and a place among our nation’s most esteemed Chief Justices.

To be sure, Vinson would not have authored a broad opinion invalidating all racial distinctions and ordering the immediate integration of segregated schools.  But, then, neither did Earl Warren.  The Brown opinion was carefully limited to the facts of public school segregation, and Brown II delayed integration for years, under the “all deliberate speed” formula.  An opinion authored by Vinson would probably have looked similar to the Brown/Brown II duo that emerged from the Warren Court.

Four factors point in the direction of a Vinson-authored unanimous opinion in Brown.  First, Vinson had authored unanimous opinions for the Court in the most important race cases he confronted: Shelley v Kraemer, invalidating judicial enforcement of racially restrictive real estate covenants; Sweatt v. Painter, invalidating racial segregation at the University of Texas School of Law; and McLaurin v. Oklahoma State Regents for Higher Education, invalidating segregation within a graduate program in education.  In Sweatt and McLaurin, Vinson had emphasized the critical socializing role of education.  McLaurin concluded, “There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.”  This principle, although ostensibly confined to graduate education, had obvious implications for segregation at the elementary and secondary level.  Indeed, in conference, Vinson had suggested that graduate education could not be meaningfully distinguished from elementary and secondary education.

Second, Vinson was a steadfast supporter of the policies of the federal government.  In Brown, both the Truman and Eisenhower administrations had urged the court to strike down school segregation.  For Vinson to side against the stated preferences of the federal government, from both Democratic and Republican administrations, would have been decidedly out of character.

Third, Vinson was a fierce anti-Communist, perhaps the most strident anti-Communist to ever serve on the Court.  In numerous filings, the federal government had told the Court that racial segregation undermined America’s struggle against global Communism.  Vinson would have paid careful attention to this argument.  A vote to uphold segregation would hand a massive propaganda victory to Communist forces, something Vinson would do almost anything to avoid.

Fourth, Vinson was close to his friend, former President Harry Truman.  In 1948, Truman had gambled his entire presidency on the issue of civil rights, endorsing a broad civil rights platform and triggering a split with the southern wing of the Democratic Party.  Would Vinson, as Truman’s Chief Justice, really want to be known as the author of an opinion re-enforcing racial segregation?  This, too, seems unlikely.

Although one can never know for sure, it seems more likely than not that Vinson’s survival would have led to a unanimous opinion in Brown similar to the one ultimately authored by Chief Justice Warren.  Under this scenario, it would be impossible to dismiss Vinson as an incompetent failure.  Moreover, Brown would be seen not as the opening salvo of the Warren Court, but as the logical culmination of Vinson’s decisions in a line of unanimous race cases.

On a more whimsical note, the essay also explores what might have happened with subsequent appointments had Vinson not died prematurely.  The key conclusion is that Earl Warren would have been appointed an Associate Justice of the Court to fill the seat left vacant in 1954 by the death of Robert Jackson; Warren, however, would not have been named Chief Justice.  Instead, the most likely successors to Vinson would have been John Marshall Harlan under President Eisenhower or Byron White under President Kennedy.  Neither would have been especially successful as Chief Justice.  Moreover, depending on the timing of Vinson’s subsequent death, decisions such as Miranda v. Arizona could have easily come out the other way.

Earl Warren was so significant a Chief Justice that almost anyone who preceded him would look small in comparison.  Warren’s shadow has contributed greatly to the historical eclipse of Fred Vinson.  But if Vinson had instead been succeeded by a Harlan or a White, presiding over a fractured court and frequently dissenting from the Court’s rulings, Vinson’s Chief Justiceship would suffer little in comparison.  Indeed, his inability to command majorities would seem less of a failing and more like the typical lot of a mid-twentieth century Chief Justice.  With Brown behind him, Vinson might have even been seen as the most significant Chief Justice of the twentieth century.