Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights

Risa Goluboff - University of Virginia School of Law

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Historians spend a lot of time in archives, and much of what they find, in its original form, would likely engage, no one but themselves. Every so often, however, they find documents—letters, memos, draft opinions—that might be of interest to a broader audience. Such discoveries are the impetus for this essay.

My first finding concerns the 1972 vagrancy case of Papachristou v. City of Jacksonville. The ordinance at issue criminalized those deemed vagrants, which included, among others, “persons wandering or strolling around from place to place without any lawful purpose or object.” Jacksonville police officers used the ordinance to regulate and harass any number of socially marginal groups who failed—by choice or coercion—to comply with middle-class norms of behavior. These included poor people, African Americans, anyone who violated racial norms, and other nonconformists and dissidents.

The Jacksonville police were hardly unusual. For centuries, local communities and their agents had used vagrancy laws variously to regulate and extract labor from the resident poor, exclude and punish poor strangers, incapacitate apparent threats to social order, prevent the commission of incipient crime, enforce racial segregation and subordination, and discipline minorities. In each instance, police used these laws to demarcate who was out of place in a given community, who was denied full respect for their mobility, their autonomy, their lifestyle, their beliefs. Marginal people shared a vulnerability to arrest under vagrancy laws at almost any time and any place for any behavior or no behavior at all.

In the 1950s and 1960s, long-simmering conflict between the victims of vagrancy laws and local officialdom became both more visible to legal and political elites and more constitutionally contestable. These clashes involved representatives of most of the major social movements of the era. Communists, labor union members, civil rights demonstrators, poor people, hippies, gays and lesbians, women, Native Americans, Vietnam war protestors, young, urban, minority men, and other racial minorities, and dissidents all contested police repression by vagrancy law. They raised similar questions about the constitutional validity of unfettered criminal regulation of people deemed somehow out of place. And they began to insist on either their right to make their own place, the faultiness of the whole idea of place, or both.

When the Supreme Court struck down the vagrancy law at issue in Papachristou, then, it was intervening into the culture wars of the 1960s. Writing for a unanimous Court, Justice William O. Douglas described walking, strolling, loafing, wandering, nightwalking, and the like as “historically part of the amenities of life as we have known them.”1 While Douglas acknowledged that they were “not mentioned in the Constitution or in the Bill of Rights,” he nonetheless emphasized that “[t]hese unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.”2 Douglas quoted such American literary luminaries as Walt Whitman and Henry David Thoreau for the depth of the American commitment to such freedoms. The opinion thus rhetorically sided with sixties-style pluralism and autonomy over hierarchy and conformity.

Doctrinally, however, the Court shied away from entrenching as constitutional the rights Douglas discussed. Instead, it identified the problem with the ordinance as vagueness. The ordinance failed to give “fair notice” to the public about what conduct was criminal and it encouraged “arbitrary and erratic arrests and convictions.” The problem was not that vagrancy laws prohibited certain protected conduct but that they failed to give adequate warning as to what conduct was prohibited.

Here is where the archives come in. It turns out that the holding in Papachristou had not always relied on vagueness alone. The early drafts had also relied at first on the Ninth Amendment and then on substantive due process. In one earlier draft, Douglas described the same activities listed above not as “historically part of the amenities of life as we have known them,” but rather as “historically part of the amenities of life contained in those rights ‘retained by the peopl[e]’ within the meaning of the Ninth Amendment.” In another version of the opinion, Douglas jettisoned the Ninth Amendment in favor of substantive due process. A revised draft stated, “These amenities are so basic and elemental in our scheme of values that we conclude that they are part of the ‘liberty’ of the individual that is protected by the Due Process Clause of the Fourteenth Amendment against infringement by the States.”

The differences between the draft opinions and the published one are significant for several reasons. First, far more so than the published opinion, Douglas’s early drafts of Papachristou read as something of an anthem for the sixties’ celebration of pluralism. Douglas suggested that all those marginal people might actually have rights to alternative lifestyles, to nonconformity, to acceptance, simply to be in public as themselves.

Second, the differences between the draft and the published opinion shed new light on an old debate about vagueness. For decades, legal scholars have speculated that the void-for-vagueness doctrine was often the Court’s way of obfuscating its commitments to particular substantive rights. Vagueness was, in Professor Anthony Amsterdam’s words, a “makeweight,” “an available instrument in the service of other more determinative judicially felt needs and pressures.” Indeed, Papachristou itself has been a prime target of skeptical scholars. The existence of the early drafts gives heft to these speculations. Douglas initially had in mind the Ninth Amendment and substantive due process, not only vagueness. He thought that there were rights at issue in Papachristou, that those rights were similar to other fundamental rights, and that they triggered the Court’s most stringent level of review.

Third, the differences between the draft opinions and the published one highlight the potential importance of doctrinal frameworks for future law-making. By using vagueness in the published opinion, Douglas held not that any particular type of conduct was shielded from regulation, but rather that a better description of the prohibited conduct was needed. In choosing one doctrinal category (vagueness) over another (fundamental rights), the Court shaped the subsequent framing of the issues among laypeople, legislators, and legal professionals alike. The Court essentially invited legislatures and city councils to draft more specific (less vague) laws that would constrain—but still authorize—discretion to regulate those out of place. And draft they did. They generated new, more specific loitering laws, new laws targeting the homeless, and new forms of petty criminal regulation. It is difficult, and beyond the scope of this essay, to construct a counterfactual history, but the question is an important one: Would the subsequent development of constitutional doctrine—not to mention the actual practices of policing public spaces—have been different if the early draft had actually been published?

Fourth, Douglas’s Papachristou drafts shed new light on the extent to which constitutional doctrine was in flux in the early Burger Court years. In 1967, the Court had made clear that it would show special constitutional solicitude for racial minorities. Over the following decade, the Court waffled publicly about whether legislation concerning other groups—poor people, hippies, illegitimate children, women—would also receive heightened scrutiny. That public waffling was only the tip of the iceberg, however. Behind the scenes, the justices were even more openly debating such questions. This dodging of the question of who should receive greater judicial protection under the equal protection clause parallels the Papachristou Court’s avoidance of the question of what kinds of rights it would protect under substantive due process. In the early-to-mid 1970s, both what kinds of rights the Court would protect and who would receive special protection were considerably up for grabs.

Fifth, Douglas’s early draft of Papachristou opens new avenues of inquiry as to the possible development—or lack thereof—of constitutional scrutiny of substantive criminal law. Professor William Stuntz has argued that the Warren Court’s transformation of American criminal procedure has led to perverse consequences. Stuntz has suggested instead the constitutionalization of substantive criminal law. Along with a few other cases from the 1960s and early 1970s, Papachristou is the poster child for this argument. But neither it nor the other cases Stuntz praises ever led to a new constitutional jurisprudence of criminal law. Douglas’s draft opinion is significant here because it suggests that perhaps the fault lay partly in Papachristou itself. The draft opinion would have told legislatures what they could not do—criminalize some forms of public self-expression, nonconformity, dissent, or alternative lifestyle—without a compelling interest and narrow means. But what the actual opinion told them was that they needed to change the language with which they criminalized those things.

*  *  *

As fruitful as Douglas’s early drafts are for new insights about a number of issues in constitutional law, the fact is that they remained drafts. My second finding helps explain why, and it raises even more dramatic questions for our understanding of constitutional law. It turns out that Douglas changed the basis for his opinion at least in part because of connections various justices made between Paparchristou and Roe v. Wade, which the Court was considering at the same time. In response to a draft Douglas sent him, Justice William J. Brennan, Jr., wrote, “As I recall[,] vagueness was the consensus ground at conference. Will the ‘fundamental rights’ approach scare away votes? It keys in so perfectly with my views in the abortion cases that I fervently hope not. Does the possible risk argue for holding up circulation until Harry’s Texas case comes around[?]”

Brennan’s memo shows that he saw connections between Douglas’s fundamental-rights-based Papachristou opinion and Blackmun’s forthcoming Roe opinion, which was to be based on the same constitutional theory. Brennan was worried that other, more conservative, justices would see the same connections and that they would hesitate to sign onto Roe for fear of broadening substantive due process to include everything in Douglas’s opinion as well.

It might seem surprising in retrospect that Brennan connected Roe to Papachristou. Thought about as privacy, sexual freedom, or reproduction cases, Roe, Eisenstadt, and Griswold had little in common with Papachristou. Going up a level of generality, however, the various opinions and memos in the archives make clear that the questions preoccupying several of the justices were the same in the two sets of cases: what were fundamental rights, and where in the Constitution, if anywhere, would the Court find protection for them. Within that context, it is less surprising that Brennan would connect Papachristou and Roe.

Indeed, in thinking about how to resolve Roe, Brennan was then in the process of constructing a systematic framework for the “fundamental freedoms” that he deemed within the meaning of “liberty.” He thought his framework applied equally to Papachristou and to Roe. He wrote Douglas a memo describing his ideas, and Douglas’s concurrence in Roe and its companion case largely adopted Brennan’s categories. The archives thus reveal Brennan and Douglas exploring and shaping fundamental rights in Roe and Papachristou simultaneously and jointly.

Brennan and Douglas were not alone in seeing connections between Roe and Papachristou. The constitutional framework that Roe was poised to create would be potentially deeper, more expansive, and more secure with related fundamental rights protected in Papachristou. That security appealed to some justices and repelled others. In particular, Justice Potter Stewart balked at Douglas’s reliance on fundamental rights in Papachristou. It is hard to decipher Stewart’s precise concerns from the surviving record, but it is clear that Stewart’s opposition was a major reason for the transformation of Douglas’s opinion.

The implications of that transformation are particularly provocative in light of what we already know about a reverse transformation in Roe itself. Blackmun’s original impulse was to avoid the question of rights. Although the conference had voted to invalidate the abortion statute on privacy grounds, Blackmun’s early draft opinion relied not on any substantive right, but on vagueness. In response to Blackmun’s draft, Brennan and Douglas urged Blackmun to reach “the core issue” of privacy rather than rely on vagueness. Eventually, he did.

The reasoning of the two cases accordingly switched places. Justice Douglas had initially relied on fundamental rights to strike down the vagrancy ordinance in Papachristou. Justice Blackmun had initially used vagueness to avoid relying on fundamental rights to strike down the law in Roe. But ultimately, Roe fessed up to its substantive right of privacy, while Papachristou’s reliance on vagueness masked the connections between Papachristou and the burgeoning fundamental rights—particularly privacy and sexual autonomy rights—that the Court was wrestling with in Roe.

One wonders how constitutional law would have looked if the early drafts of Roe and Papachristou had been published, if the reasoning of the two cases had not switched places. Would we have elaborated a substantive due process in which people had greater rights in public than in private? Would low-level criminal regulation of mobility have actually disappeared while legislatures reenacted abortion regulations sooner and with even less concern for women’s interests? Even further, one wonders how constitutional law would have looked if both Papachristou and Roe had publicly committed to a new substantive due process of public and private, of lifestyle protection writ large, of the broader and more varied understandings of liberty represented in Brennan’s memo to Douglas.

In any event, the memos, the early drafts, and Douglas’s published opinion in Roe all make clear that a number of the justices saw important relationships between the rights potentially at issue in Papachristou and those potentially at issue in Roe. The archives also offer Supreme Court junkies new fodder for the realms of judicial biography and court history. The interchanges between Brennan and Douglas are illuminating not only for their now largely forgotten classification of fundamental rights, but also for what they might say about a closer relationship between the two men than previously identified. These archival documents also raise questions about the nature of, and conflicts over, fundamental rights in the Warren and Burger Courts more generally. The Warren Court had repeatedly toyed with constitutionally invalidating vagrancy laws, but it was not until Warren Burger’s tenure as chief justice that the Court actually struck them down. The archives thus show the Burger Court years as in some ways the capstone of sixties social transformations that the Warren Court had not entirely embraced. At the same time, one might ask, to what extent did the fact that it was the Burger Court that decided these cases affect their framing and their consequences for future doctrinal developments? And further, to what extent do the struggles of both courts to make sense of the social life of the sixties within the legal categories available to them reveal our own categories of analysis as shifting and unstable over time?


Copyright © 2010 Stanford Law Review.

Risa L. Goluboff is Professor of Law and History and the Caddell & Chapman Research Professor, at the University of Virginia School.

This Legal Workshop Editorial is based on the following Law Review Essay:  Risa L. Goluboff, Essay, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights, 62 STAN. L. REV. 1361 (2010).

  1. 405 U.S. 156, 164 (1972).
  2. Id.

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