Justice Under Law

Reviewed by Jack Bass

Vol. 24, No. 1-2, 2002 pp. 21-22

Frank M. Johnson, Defending Constitutional Rights, Edited by Tony A. Freyer, Athens: University of Georgia Press, 2001.

In this slender volume, Tony Freyer characterizes Judge Frank M. Johnson, Jr. as “a unique figure in American history” and provides a useful collection of Johnson’s own articles, articulating his vision of justice based on law. This collection augments four biographies (one by this reviewer) of a federal trial judge unsurpassed in his impact for shaping Constitutional principles and expanding the civil rights of all Americans.

“Intellectual acuity conditioned by life experience shaped Johnson’s attitude toward the constitutional law governing race relations,” Freyer writes. Alabama Gov. George Wallace once declared that Johnson needed “a barbed wire enema.” In contrast, Martin Luther King, Jr. asserted that Johnson “gave true meaning to the word ‘justice.'” When Johnson died, his obituary in The New York Times filled an entire page.

Freyer, a University of Alabama law professor and legal historian, describes how as a trial judge from 1955 to 1979, Johnson “decided many of the most significant cases in American constitutional history.” Their social impact, such as his order allowing the dramatic march from Selma to Montgomery that created the climate in 1965 for passage of the Voting Rights Act, helped transform the American South.

The book begins with an introduction on “Johnson’s Unusual Origins and Early Career.” Nothing shaped him more than growing up in the Appalachian foothills of Winston County, the county in Alabama that, before the Civil War, grew the least amount of cotton and contained the fewest number of slaves. Unionists prevailed in the “free state of Winston,” where twice as many men–including two of Johnson’s great-grandfather’s brothers–fought for the United States Army as for the Confederacy. Johnson’s father was a “mountain Republican,” the only member of that party to serve in the 20th century Alabama legislature until the 1960s. He attended Republican national conventions and became friendly with such men as Herbert Brownell and Warren Burger, who in the Eisenhower Department of Justice would play the key roles in selecting federal judges.

What follows is the full transcript of the historically significant two-hour PBS interview of Johnson in 1980 by Bill Moyers and then eight articles on a range of subjects written by Johnson, each preceded by a historical overview by Freyer. He contends in his conclusion that Johnson’s rationale “for what others described as boundless judicial activism was fundamentally conservative.” Johnson’s core values, he says, rested “on basic equality under law and equality of opportunity.” For Johnson, the Constitution and its Bill of Rights created “a brand of individual liberty characterized by the fundamental right to personal security, opportunity, citizenship, and freedom of expression and conscience.”

The value of this book is to provide access to Frank Johnson expressing these core beliefs in his own words–the full expression of his philosophical analysis of what constitutes justice under law. The articles range over a quarter of a century, from 1966 on the roles of the attorney and the judiciary to the importance of equal access to justice and finally, in 1990, on “What is Right with America.”

One unfortunate omission is Johnson’s 1979 commencement speech at Boston University Law School, which was published in the Emory Law Journal in 1979 as “In Defense of Judicial Activism.” In this full response to critics such as Robert Bork, Johnson called for “an appreciation of the meaning of judicial activism.” He directly challenged the widely held legal doctrine of “neutral principles,” expressing his view that “the doctrine of neutral principles robs the Constitution of its vitality. It freezes constitutional thinking in the interests of theoretical purity. The Framers were pragmatic men and the Constitution is a practical blueprint: its genius lies in its generality. Perfect logical consistency has always given way to practical distinction. As well it should.

“If the law should beware unprincipled distinctions, it should also beware insufficient inconsistency. Religious differences, race differences, sex differences, age differences, and political differences are not the same. It is no mark of intellectual soundness to treat them as if they were. Moreover, if the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history. A judiciary that cannot declare that is of little value.”

He emphasized, “It is one thing for a judge to adopt a theory of political morality because it is his own; it is another for him to exercise his judgment about what the political morality implied by the Constitution is.” The general language of the Constitution, the Bill of Rights, and the Civil War amendments (the Thirteenth, Fourteenth, and Fifteenth amendments) he asserted, appeals “not to a particular conception of necessity or reason or equality but to the concepts themselves.” (Italics in original)

For readers interested in engaging a great mind at work, Defending Constitutional Rights provides an opportunity to develop an understanding of what is required to create justice under law.

Dr. Jack Bass is professor of humanities and social sciences at the College of Charleston. He is the author of Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr., and the South’s Fight over Civil Rights, which won the 1994 Robert F. Kennedy Book Award grand prize, and author or co-author of six other books about civil rights and political change in the 20th century South.