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The professor, freedom and the court

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The professor, freedom and the court Alexander Meiklejohn and the First Amendment by Paul Henry Gates
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THE PROFESSOR, FREEDOM AND THE COURT:
ALEXANDER MEIKLEJOHN AND THE FIRST AMENDMENT

















BY

PAUL HENRY GATES, JR.




















A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

1996

































Copyright 1996

by

Paul Henry Gates, Jr.














ACKNOWLEDGMENTS


As a doctoral student, I considered and rejected a

number of dissertation topics before settling, relatively

late in my program, on the teaching life of Alexander

Meiklejohn. I had brought considerable legal experience to

my studies, so there was little doubt that law would figure

prominently in the dissertation, but I also wanted a strong

historical component. Meiklejohn's name had popped up

frequently in my readings on mass communication in

connection with First Amendment scholarship during the

middle years of the 20th Century. The references were

invariably sketchy, however, and within a few paragraphs, he

was gone.

Not until the next-to-last semester of my coursework

did I really "meet" Meiklejohn. I was planning a career in

academia and was researching a paper on academic

institutions and their teaching missions as part of a course

in Mass Communication Teaching. I was, myself, the product

of a liberal arts college as an undergraduate, so small

liberal arts programs became the focus of my work.

And there was Meiklejohn again. I discovered that he

was not a lawyer, but a philosophy professor who had become

president of Amherst College at the age of 40 and didn't

iii








begin to study law until he "retired" from teaching at the

age of 70. From then on, I immersed myself in Meiklejohn's

books on college teaching and began to see a connection

between his philosophy of education and the First Amendment

interpretation I had seen frequently in other courses.

Meiklejohn held my attention for weeks, and when attention

turned to admiration, I realized I'd found my topic. It is

particularly fitting that the professor who introduced us,

Dr. Julie Dodd, is herself a dedicated teacher. My thanks

only begin to convey my gratitude to Julie for the

opportunity to discover Meiklejohn the man and the

professor.

Special thanks are due, of course, to my doctoral

committee, especially my supervisor and mentor, Dr. Bill

Chamberlin, who, though 592 miles away, was always available

to me when I needed editorial guidance and reassurance that

I could actually complete this project.

The other members of my committee, Dr. Bill McKeen, Dr.

John Wright, Prof. Gus Burns and Prof. Laurence Alexander,

each deserve thanks, not only for their work on this

dissertation but for what they added to my UF experience.

Their unique individual contributions to my education made

them ideal committee members, and I thank them for so

readily agreeing to work with me.

Any undertaking of this magnitude also requires a

supportive family, and I have that in abundance in my








parents, Barbara and Paul, who were always keen to hear of

my progress on "that paper." Their encouragement of my

education has not been confined to this most recent

undertaking, however, but goes back some 40 years, and has

added more to my life than they can imagine.

Thanks also go to my good friend and colleague, Matt

Bunker, who was always at the other end of the phone line or

e-mail with a heartening word and a quick answer when I was

stuck.

With the end now in sight, my deepest thanks go to my

wife, Diane, whose unwavering love, patience and support

from beginning to end made the entire program possible and

kept me going when my own resolve occasionally flagged.
















TABLE OF CONTENTS


ACKNOWLEDGMENTS .. ... iii

ABSTRACT .. .... viii

CHAPTERS


I INTRODUCTION .


Research Question .
Meiklejohn, Academic Freedom and the First
Amendment .
Literature Review .
Methodology .
Outline of the Study .

II TRADITIONAL EDUCATION:
BROWN AND AMHERST, 1897-1923 .

The Making of a Scholar .
The Roots of Controversy at Amherst .
Meiklejohn and Academic Freedom .
Meiklejohn's Fall From Grace .

III EXPERIMENTAL EDUCATION:
MADISON AND SAN FRANCISCO, 1927-1942

Introduction .
Shaping the Experimental College .
Socialism at Madison: A Brief History .
The End of the Experimental College .
Refining Theories of Education .
Why Education? .
Meiklejohn Turns to Adult Education .
Meiklejohn Turns to the Law .

IV MEIKLEJOHN'S DEVELOPING INTEREST IN LAW:
BERKELEY, 1942-1955 .

Introduction .
Meiklejohn and Felix Frankfurter .
Meiklejohn and Holmes: Logic v. Realism
Meiklejohn, the Stromberg Opinion and its
Antecedents .

vi


2

3
. 1

. 2

. 3
. 14
. 18
. 20


. 21

. 21
. 37
. 45
. 54


. 62

. 62
. 64
. 71
. .74
. 76





. .01

. 101
. 103
. 109

. 116


.








Meiklejohn Takes on Chafee--and Vice Versa 128
Meiklejohn's Constitutional Sources .. .138
Why Free Speech? ... 141
Meiklejohn's Limits on Free Speech ...... 145
Meiklejohn and Broadcasting as Lesser Speech 159
Communism, Free Speech and World War II 162
The Harvard Crimson Debate .. 177
Meiklejohn and Chafee's Last Meeting 182

V MEIKLEJOHN'S THEORIES AND THE SUPREME COURT 187

Introduction 187
Meiklejohn, Black and Douglas 189
Meiklejohn and Douglas ... .205
Meiklejohn's Mark on the Court ......... 213
Politics and the Interpretation of
Meiklejohn229 .

VI MEIKLEJOHN EXTENDED: LEGACY AND LESSONS
FOR THE 21st CENTURY ... .231

Introduction .. 231
Meiklejohn's Contribution ... .235
Back to Education ... 237
Access for Education .. 242
An Affirmative Role for the First Amendment 261
Meiklejohn's Legacy .. 266

REFERENCES ... 268

BIOGRAPHICAL SKETCH ... 281














Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy

THE PROFESSOR, FREEDOM AND THE COURT:
ALEXANDER MEIKLEJOHN AND THE FIRST AMENDMENT

By

Paul Henry Gates, Jr.

December 1996

Chairman: William F. Chamberlin
Major Department: Journalism and Communications

Alexander Meiklejohn (1872-1964) believed that the

primary goal of a liberal education was to prepare citizens

to participate in the American form of democratic

government. The philosophy professor and former college

president emphasized that the nation's Founders had intended

that voters retain ultimate control of the government they

had selected to represent them. He also believed that

effective and informed political involvement required an

acquaintance with the best thinkers in such diverse areas as

politics, philosophy, history, economics and law.

Meiklejohn brought the experience of more than 40

years of college teaching to the study of the First

Amendment after retiring from the classroom in 1942. His

academic career included concurrent teaching and

administrative responsibilities at several institutions. He


viii








was a dean at Brown University, president of Amherst

College, director of the Experimental College at the

University of Wisconsin-Madison and the director of the San

Francisco School for Social Studies, a second experimental

program he developed for adult students.

Meiklejohn viewed the First Amendment as the primary

means of ensuring that a variety of viewpoints were

represented in the public debate. Although the global

political climate after the Second World War often made his

liberal viewpoints unpopular, he consistently promoted his

belief that freedom of thought and expression on the wide

range of political and social issues faced by society was

the most certain way to preserve the American system of

self-government.

His views gained considerable support among several

justices of the United States Supreme Court during the 1960s

and his influence is detectable in the Court's opinions in

such landmark cases as New York Times Co. v. Sullivan and

Red Lion Broadcasting Co. v. Federal Communications

Commission.

Toward the end of his life, Meiklejohn encouraged

federal and state governments to use the First Amendment to

actively promote the enlargement of the public sphere of

information available to voters, a recommendation that has

considerable currency for a nation preparing to grapple with

the problems and challenges of the 21st Century.














CHAPTER I
INTRODUCTION


With the 1948 publication of Free Speech and Its

Relation to Self-Government, a philosophical treatise on the

meaning of the First Amendment, Alexander Meiklejohn burst

onto the constitutional scene, seemingly from nowhere, but

espousing a carefully thought-out philosophy of free

expression. Joining an illustrious group of mass

communications thinkers that included Walter Lippmann, A.J.

Leibling and Zechariah Chafee, Jr., Meiklejohn published his

book just as the anti-Communist fervor that followed the

post-war Soviet domination of Eastern Europe was reaching

fever pitch. In a Cold War climate that had many seeing

threats to democracy around every corner, Meiklejohn stepped

into the maelstrom with the view that speech about the

conduct of government should enjoy near-absolute protection.

Meiklejohn, however, was no Young Turk seeking to make

a name for himself with controversial new ideas. Retired

ten years from a 41-year career as a philosophy professor

and college president, Meiklejohn had already spent a

lifetime examining the role of critical thinking in

education and the importance of academic freedom to the

achievement of that goal. At seventy-six, with most of his

contemporaries long gone from the academic scene, Meiklejohn








embarked on yet another career of championing the value of

the dissident voice to a strong democracy. Building on the

experience of philosophical training that stretched back

into the 19th Century, Meiklejohn helped guide the American

Civil Liberties Union, testified before Congress and wrote

and lectured on the First Amendment for another 18 years.

Active and alert, and within two months of his ninety-third

birthday, Meiklejohn was planning a letter to the Board of

Regents about student protests at the University of

California at Berkeley when he died on December 16, 1964.

Meiklejohn, who was not a lawyer, nonetheless

influenced thinking at the United States Supreme Court for

more than 30 years. Free Speech was first cited by the

justices three years after publication, and 16 more times

over the next 32 years. Others of his First Amendment

writings were cited another nine times, and his work was

widely discussed among the justices in several more cases.

Research Ouestion

Meiklejohn's influence at the Court in individual cases

is briefly noted in a vast range of work on freedom of

expression. However, no effort has been made to synthesize

the role his work played in shaping a unified First

Amendment view among some members of the Court. The genesis

of Meiklejohn's First Amendment philosophy as influenced by

the earlier periods of his life, when he wrote at some

length on academic freedom, remains unexplored. Writers

have yet to show how the extension of his teaching career








into the realm of free expression was part of a logical

intellectual evolutionary process.

These gaps in the commentary on Meiklejohn provide the

opportunity to create a more complete picture of his

contributions as a First Amendment theorist through research

on the following questions: How did Meiklejohn's career in

higher education as a professor and administrator influence

his interest in and views on free expression after he

retired? What impact did Meiklejohn's writings have on

First Amendment jurisprudence at the United States Supreme

Court during the years between roughly 1950 and 1980?

The first portion of this study will be limited in

scope to a study of Meiklejohn's involvement with questions

of free expression during his academic career. The second

will focus on the refinement of those views after his

retirement and their more narrow application to the

citizen-government relationship.

Meiklejohn. Academic Freedom and the First Amendment

Meiklejohn's life was one of almost exclusively

academic pursuits. After college he went directly to

graduate school, and after receiving his doctorate, went

into teaching. He taught philosophy from 1897 until his

retirement in 1938, and occasionally thereafter. Even

during his years as Dean of Brown University and President

of Amherst College, he was never far from the classroom,

teaching an undergraduate course in logic at least one

semester each year.






4

A former student recalled years later that Meiklejohn's

guiding principle as president of Amherst was that "it is

wrong to define the aims of liberal education in terms of

character or good citizenship, or religious faith, or

anything other than the goals of honest inquiry." It was

not that he found the other attributes unworthy, but

believed it most important that education be guided by

intellectual rigor. Following that premise, Meiklejohn

believed that in studying the theories of a particular

discipline, "we must make sure that they come under the

control of intelligence [therefore] in college we

concentrate on the role of critical thought."1

Meiklejohn's doctrine on freedom of expression,

however, was not intended exclusively or even primarily to

protect the freedom of philosophical inquiry. It was,

instead, a political doctrine arising out of political needs

and designed to maintain and foster the freedom of political

inquiry and discussion during a complex period in history

that saw a dramatic shift and realignment of global power.

The remainder of this section of the chapter will

introduce some of the main points made in Meiklejohn's early

writing on the First Amendment. An overview of his First

Amendment philosophy, it will identify the broad themes he

considered most important for the guidance of American



Bixler, Julius Seelye, "Alexander Meiklejohn: the
Making of the Amherst Mind," 47 New England Quarterly 183
(1974). Bixler, a member of the Amherst Class of 1916, was
president of Colby College in Waterville, Maine.








democracy. Meiklejohn's writings during the last 15 years

of his life developed and amplified these early ideas in

critiques of contemporary Supreme Court decisions and are

examined in detail in Chapter IV.

Meiklejohn's best-known work on the freedom of

expression is Political Freedom: The Constitutional Powers

of the People, which appeared in 1960. It consists of two

distinct sections. Part One is, with minor adjustments, the

text of Free Speech, his 1948 book. Part Two is a

collection of speeches, letters and other papers written

between 1948 and 1958.

Meiklejohn viewed the First Amendment as an essential

component of self-government in a democratic system. In

Political Freedom, he wrote that the true meaning of the

"freedom of speech" protected by the First Amendment is

"public speech," which is a political freedom "valid only in

and for a society which is self-governing. It has no

political justification where men are governed without their

consent."2

Free people, who govern themselves, must not be

protected from hearing any idea on the ground that it is

unwise, unfair or dangerous, Meiklejohn wrote, because it is

they "who must pass judgment upon unwisdom, unfairness or

danger." Preventing "acquaintance with information or

opinion or doubt or disbelief or criticism" that is relevant


2 Meiklejohn, Alexander, Political Freedom: The
Constitutional Powers of the People, New York: Harper &
Bros. (1960), 84.







to any public matter they must act on is to impede the

judgment of the body politic. "It is that mutilation of the

thinking process of the community against which the First

Amendment to the Constitution is directed."3

The primary purpose of the First Amendment, according

to Meiklejohn, is to protect public speech about matters of

public interest. "It was written to clear the way for

thinking which serves the general welfare."4 Meiklejohn

opposed any official effort to limit discussion of matters

bearing on the common interests of society or pass judgment

on the value of the ideas expressed. "Any such suppression

of ideas about the common good, the First Amendment condemns

with its absolute disapproval. The freedom of ideas shall

not be abridged."5

Meiklejohn thought the First Amendment's protection

absolute because it serves a critical public need. "Free

men need the truth as they need nothing else."6 However,

the only truth with any value and validity "is that which we

win for ourselves in the give and take of public discussion

and decision. What we think together at any time is, for

us, our truth at that time."7 The First Amendment thus




3 Id. at 27.

4 Id. at 42.

5 Id. at 28.
6 Id. at 59.

7 Id. at 73.








serves as "a device for the sharing of whatever truth has

been won."8

In Meiklejohn's view, the First Amendment both protects

speech absolutely and limits its scope. Both the protection

and the limitation stem from the public's need for truth.

"The guarantee given by the First Amendment is assured

only to speech which bears, directly or indirectly, upon

issues with which voters have to deal--only, therefore, to

the consideration of matters of public interest."9

Meiklejohn was never critical of the slightly vague

nature of the text of the First Amendment, but instead took

the philosopher's logical approach to interpreting the 45

words of the amendment.10 He approached the task of

interpretation from the standpoint of procedural efficiency

for the exchange of ideas about the conduct of government.

Giving the First Amendment a literal reading,

Meiklejohn wrote that the article did not forbid the

abridging of speech, but did forbid the abridging of the

freedom of speech. The freedom of speech, which is

inviolate, he argued, is "freedom of discussion for those

minds" that are engaged in the business of deciding "matters



8 Id. at 75.

9 Id. at 79.

10 U.S. CONST., Art. I, reads, "Congress shall make no
law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances."







of public policy." He did not extend similar protection to

"unregulated talkativeness.""

Meiklejohn's interpretation of the First Amendment

clearly leaves many types of expression outside the

absolutely protected area but not completely without

constitutional guarantees. His theory posits that "under

the Constitution, there are two different freedoms of

speech, and, hence, two different guarantees of freedom

rather than only one."12 The first type of freedom is

extended to public discussion of "the common needs of all

the members" of the society, which have a "constitutional

status which no pursuit of an individual purpose can ever

claim."13 It therefore stands alone with full First

Amendment protection.

The second, and lesser, freedom takes in all other

types of expression, which Meiklejohn called "private

speech." He regarded private speech as personal to the

individual engaged in it, and conceded that the right was

considerable, but outside the purview of the First

Amendment. Meiklejohn likened private speech rights to the

right to life and property and found them similarly

protected by the Due Process Clause of the Fifth Amendment.

These lesser rights he differentiated from "freedoms" by

describing them as "liberties." Clothed in those terms,


11 Meiklejohn, Political Freedom, at 25-6.

12 Id. at 8.

13 Id. at 55.








Meiklejohn saw protection for speech "not from regulation,

but from undue regulation."14 Without absolute protection,

private speech becomes a relative right that may be abridged

upon a demonstration of a compelling public interest.

Meiklejohn's creation of a bifurcated view of speech

values has received little attention and even rarer

acceptance. The United States Supreme Court has never

resorted to a Fifth Amendment "liberty" construct to protect

speech,15 although it has, of course, "incorporated" the

First Amendment's protections against action by the states

through the Fourteenth Amendment's Due Process Clause. An

argument could be made, one that Meiklejohn would probably

have accepted as it follows his line of reasoning, that the

"liberty" protected by the original Fifth Amendment Due

Process Clause must also include a guarantee of freedom of

speech separate from and lesser than the First Amendment's

protection.

As a whole, however, the Court has fairly consistently

moved in exactly the opposite direction. To be sure,



14 Id. at 37.

15 U.S. CONST., Art. V, reads, in pertinent part, "No
person shall be deprived of life, liberty, or
property, without due process of law. .
Meiklejohn conceived of a "liberty" as a public
interest secondary in importance to a "freedom." As such,
he would allow regulation of that interest by the government
after established procedures were followed. The Court,
however, has not created such a two-tiered hierarchy of
rights, but has instead established levels of judicial
scrutiny and required varying degrees of evidentiary proof
from governmental entities seeking to enforce regulations
that implicate First Amendment freedoms.








individual justices such as Robert Jackson, Felix

Frankfurter, John Harlan and William Rehnquist, have

maintained that freedom of speech, when employed as a

defense against action by the states, should be less

strictly construed than when the federal government is

involved because of due process requirements.16 This

conception of due process, however, has been attempted only

as a justification for disparate jurisdictional treatment,

and even that argument has not found favor at the Court,

which has unwaveringly maintained that freedom of speech is

to be treated equally at both the state and federal levels.

Meiklejohn lamented this failure to differentiate

substantively between First Amendment speech and speech

protected under the Due Process Clauses of the Fifth and

Fourteenth Amendments. He disagreed with the Court's

refusal to accord differing substantive values to types of

speech because an interpretation which mandates the

inclusion of all speech under the First Amendment cheapens

the absolute freedom of public speech and leaves it "safe

only from undue abridgment.""17 "Public discussion," he

wrote, "has thus been reduced to the same legal status as

private discussion."18



6See, e.g., the vigorous dissenting opinion of Justice
Jackson in Douglas v. City of Jeannette, 319 U.S. 157, 181
(1943).
17 Meiklejohn, Political Freedom, at 54. (emphasis in
original).
18 Id. at 51.








Although the Court never accepted Meiklejohn's

separation of First and Fifth Amendment speech, he makes a

point that does not depend on that distinction. Different

types of expression serve different purposes and should be

granted different levels of constitutional protection.19 If

we cannot distinguish between speech protected under

different amendments, then we must examine the different

kinds of speech under the protections of the First Amendment

only. The inflexible position that all expression is equal

leads inevitably to either protecting everything absolutely

or relativizing protection under the same standards for all

types of expression.20

Meiklejohn refused to elevate commercial speech to the

level of political speech and extend absolute First

Amendment protection to it. "There are in the theory of the

Constitution, two radically different kinds of utterances.

The constitutional status of a merchant advertising his

wares, of a paid lobbyist fighting for the advantage of his

client, is utterly different from that of a citizen who is

planning for the general welfare."21 This was radically

different from the broad self-fulfillment value of speech,

which also included commercial speech, articulated by

Harvard law professor Zechariah Chafee, who found "an

individual interest, the need of many men to express their


19 Id. at 37.

20 Id. at 38.

21 Id. at 37.








opinions on matters vital to them" to be the controlling

principle.22 Meiklejohn would lump such comments of

singular interest together with commercial speech and other

forms of private speech and protect them through the Fifth

Amendment only. As he repeatedly stressed throughout his

writings, political speech is of paramount importance and

the value of political expression is primarily to the

audience rather than to the speaker who wishes to utter it,

and freedom of expression springs not from the desire to

speak, but from the need to hear.23 In Meiklejohn's

hierarchy of values, expression merely for its own sake

ranked low, and its sole justification was the support it

provided for higher forms of expression.

Meiklejohn took a dim view of the mass media,

particularly broadcasting, as the prime example of pervasive

commercial speech undeserving of protection at the level of

political speech. As speech unrelated to the business of

self-government, commercial radio fell into Meiklejohn's

broad catch-all category of private speech, that is speech

carried on for the benefit of the speaker. "The radio, as

we now have it," he wrote in 1948, "is not cultivating those

qualities of taste, of reasoned judgment, of integrity, of

loyalty, of mutual understanding upon which the enterprise

of self-government depends. On the contrary, it is a mighty



22 Chafee, Jr., Zechariah, Free Speech in the United
States, Cambridge, MA: Harvard University Press (1941), 33.
23 Meiklejohn, Political Freedom, at 24-7.






13

force for breaking them down."2 Ten years later, he added

that "privately sponsored television has proved to be even

more deadly. [The broadcast media] corrupt both our

morals and our intelligence."25

In keeping with his position that political speech was

foremost among types of expression, Meiklejohn often called

attention to other recognized categories of speech that fell

short of that ideal to justify his two-level system of

protection. Meiklejohn pointed out that all speech is not

in fact treated equally, and that courts have recognized

that some forms are subject to controls ranging from

regulation to outright prohibition. "Thus libels,

blasphemies, attacks upon public morals or private

reputations have been held punishable."26 Meiklejohn

acknowledged that his list was only partial and included

other forms of speech such as incitement to violence and

endangering public safety. He emphasized the breadth of

punishable speech, writing that "this listing of legitimate

legislative abridgments of speech could be continued

indefinitely. Their number is legion."27

While carefully sketching out the categories of speech

he approved of prohibiting, Meiklejohn was unable to draw a

meaningful distinction between pure speech and speech mixed


24 Id. at 87-8.

25 Id. at xvi, 87.

26 Id. at 113.

27 Id.








with action. He ignored the possibility that the

accompanying action might be the dispositive factor in

judging speech instead of a judgment based solely on the

purpose of the expression. "Speech," he wrote, "as a form

of human action, is subject to regulation in exactly the

same way as is walking, or lighting a fire or shooting a

gun. To interpret the First Amendment as forbidding such

regulation is to so misconceive its meaning as to reduce it

to nonsense."28

Meiklejohn rejected the idea of a "balancing test" as

it would apply to First Amendment speech. He reasoned that

any weighing of competing social values would be meaningless

because of the overwhelming importance of First Amendment

speech, which he had limited to speech on public affairs.

The exchange of ideas on topics of political and social

import was speech without equal since it led to an

acquaintance with the information necessary for voters to

make an educated choice at the polls.29 He did, however,

accept such an ad hoc evaluation for lesser forms of speech,

since he believed that not all speech necessarily

contributed to the search for truth.

Literature Review

There is only one study of Meiklejohn that even begins

to approach the status of a biography. A 1981 book, which

excerpts Meiklejohn's major writings, particularly on


28 Id. at 114.

Id. at 19.








academic freedom from the earlier years of his career,

begins with a 47-page biographical sketch.30 That portion

of the book stresses Meiklejohn's teaching career as a

framework for introducing the excerpts from his

teaching-related writings, and is full of detail on the

earliest years of his life, but does not go into any depth

on Meiklejohn's philosophy.

Six dissertations have been written on Meiklejohn.

Three have concentrated heavily on his educational

theories.31 Two others focused on his theoretical concept

of the state.3 The dissertation most closely related to

this study, a 1979 work by Mack Redburn Palmer, touches on

both those areas and adds Meiklejohn's view of law to the

mix. It is a masterful attempt to reconcile some of the

inconsistencies in Meiklejohn's pronouncements and clarify






30 Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley, CA: Meiklejohn Civil Liberties
Institute, (1981).
31 Baldwin, Robert H., "A Quest for Unity: An Analysis
of the Educational Theories of Alexander Meiklejohn (Ph.D.
dissertation, University of Pittsburg, 1967); Shantz,
Hermione, "The Social and Educational Theory of Alexander
Meiklejohn (Ph.D. dissertation, Michigan State University,
1969); Green, James M., "Alexander Meiklejohn: Innovator in
Undergraduate Education (Ph.D. dissertation, University of
Michigan, 1970).
32 Cooper, Charles J., "Alexander Meiklejohn: Absolutes
of Intelligence in Political and Constitutional Theory,"
(Ph.D. dissertation, Bryn Mawr College, 1967); Perry,
Eugene, Alexander Meiklejohn and the Organic Theory of
Democracy," (Ph.D. dissertation, Syracuse University, 1969).







the positions that had subjected him to heavy criticism

during his lifetime.33

More than 30 years after his death, Meiklejohn is still

enormously popular as a source for law review authors, with

at least 550 citations to his written work in the last 15

years alone. There have been no articles devoted

exclusively to his philosophy in recent years, apart from

brief summaries of his books.

Legal scholars cite Meiklejohn frequently in civil

liberties treatises and occasionally devote short chapter

subsections to summarizing his arguments. Most often

Meiklejohn's views are mentioned by scholars in connection

with specific cases, some of whose written decisions

originally cited him.34 These discussions do not generally

delve into any understanding of Meiklejohn's writings beyond

their immediate application to the cases illustrated.





33 Palmer, Mack R. "The Qualified Absolute: Alexader
Meiklejohn and Freedom of Speech," (Ph.D. dissertation,
University of Wisconsin-Madison, 1979).

SSee, e.g., Krislov, Samuel, The Supreme Court and
Political Freedom, New York: Free Press (1968); Schauer,
Frederick, Free Speech and Its Philosophical Roots," in The
First Amendment: The Legacy of George Mason, T. Daniel
Shumate, ed., Fairfax, VA.: The George Mason University
Press (1985); Ladenson, Robert F., A Philosophy of Free
Expression, Totowa, NJ: Rowman & Littlefield (1983); Redish,
Martin H., Freedom of Expression: A Critical Analysis,
Charlottesville, VA.: The Michie Co. (1984); Haiman,
Franklyn S., "Speech Acts" and the First Amendment,
Carbondale, IL.: Southern Illinois University Press (1993);
Graber, Mark A., Transforming Free Speech: The Ambiguous
Legacy of Civil Libertarianism, Berkeley, CA: University of
California Press (1991).








Meiklejohn also often appears in media law texts and

casebooks, again in the company of other legal philosophers,

such as Chafee, with whom he is often paired and compared.35

They are, again, only as comprehensive and analytical as

four- to five-page summaries can be.

Meiklejohn and his views generally appear in chapters

on First Amendment philosophy and comprise but a small

portion of the broad sweep that those chapters make. In

spite of widespread mention in current literature,

Meiklejohn is presented, without exception, as one of

several relatively minor figures from the past. His ideas

are acknowledged as having some application to today's

issues, but are discounted as having never enjoyed broad

support.

Although Meiklejohn's theories were never explicitly

embraced by a majority of the justices, his adherents did

occupy pivotal positions on the Court. His ideas were cited

repeatedly to temper more reactionary views at the Court and

provided a liberal counterweight to McCarthyite sentiments

that were common in the post-war period. As voices from



35 See, e.g., Pember, Don R., Mass Media Law, Dubuque,
IA: Wm. C. Brown Publishers, 5th ed. (1990); Middleton, Kent
R. and Chamberlin, Bill F., The Law of Public Communication,
White Plains, NY: Longman, 3rd ed., (1994); Holsinger, Ralph
L., Media Law, New York: McGraw-Hill, Inc., 2nd ed. (1991);
Nelson, Harold L.; Teeter, Dwight L. and LeDuc, Don R., Law
of Mass Communications, Westbury, NY: Foundation Press, 6th
ed., (1989); Carter, T. Barton; Franklin, Marc A. and
Wright, Jay B., The First Amendment and the Fourth Estate,
Westbury, NY: Foundation Press, 5th ed. (1991); Franklin,
Marc A., Mass Media Law, Mineola, NY: Foundation Press, 2nd
ed. (1982).







the political right become increasingly strident in the

mid-1990s, Meiklejohn's moderating influence may hold

valuable lessons for keeping diverse viewpoints in

circulation for the benefit of our ongoing experiment in

democracy.

Methodology

In addition to the published writing of Meiklejohn,

this study is based primarily on archival collections

located in four cities across the country. The relatively

few writings about Meiklejohn, which appear most frequently

as eulogies in academic and professional journals, will be

consulted as secondary sources.

The first, and smallest, collection is located at Brown

University in Providence, Rhode Island. In Meiklejohn's

home state, he was a professor and Dean at Brown for 15

years. While the collection of Meiklejohn's personal papers

is small, the archives do contain a wealth of material

concerning his role at the university during the formative

years of his career.

The oldest major collection is held in the archives of

Amherst College in Amherst, Massachusetts. Meiklejohn was

president of Amherst for 11 crucial and often controversial

years. Meiklejohn's Amherst materials are contained in 11

boxes of documents.

Two collections are held in Madison, Wisconsin, where

Meiklejohn headed the Experimental College at the University

of Wisconsin for five years. The largest of all, consisting







of 69 boxes, is at the State Historical Society of

Wisconsin. Meiklejohn's widow, Helen, chose the historical

society as the repository for his personal papers in 1969.

Before her own death in 1982, Mrs. Meiklejohn also made a

concerted effort to retrieve her late husband's letters to

his many correspondents and donated them to the historical

society as well. A second collection of 70 boxes, much of

which concerns Meiklejohn only peripherally, deals with the

administrative history of the Experimental College and is

housed in the University of Wisconsin Archives. It is,

however, a rich source of material on the curriculum of the

Experimental College and the practical application of

Meiklejohn's theories. The Experimental College's annual

reports, in particular, give an early glimpse of

Meiklejohn's recognition of the importance of an

understanding of law and the position of the Constitution as

a foundation of government.

The fourth collection is located at the Meiklejohn

Civil Liberties Institute in Berkeley, California, where

Meiklejohn "retired" in 1932. The Institute is a

freestanding private foundation with a small collection best

described as "eclectic," and housed in a converted

single-car garage. The modest three-box collection was

assembled largely from correspondence with private citizens

and other "fans" around the Bay Area who became acquainted

with Meiklejohn through his membership in the Northern






20

California chapter of the American Civil Liberties Union in

the 1940s and 1950s.

Outline of the Study

The next two chapters of this study will examine the

development and philosophy of Meiklejohn the educator.

Chapter II looks at his early years as both teacher and

administrator on the traditional campuses at Brown and

Amherst. He formed his theories on academic freedom during

this time and tried them out, with varying degrees of

success. Chapter III covers Meiklejohn's role in

experimental educational programs at the University of

Wisconsin and in San Francisco. He developed his theories

of freedom more fully here, and put them into actual

practice.

The last three chapters of the study are devoted to

Meiklejohn's thinking on the citizen-government

relationship, as specifically guided by the First Amendment.

Chapter IV explores Meiklejohn's interpretation of the First

Amendment, in all its varied facets and stages, to which he

devoted the last two decades of his life. Chapter V

examines the influence of Meiklejohn's theories at the

Supreme Court, where he found both supporters and detractors

among the justices, several of whom counted Meiklejohn among

their close friends. Chapter VI attempts to clarify

Meiklejohn's own brand of absolutism, assess his legacy to

the last years of the 20th Century and suggest some

applications for his ideas in the next century.














CHAPTER II
TRADITIONAL EDUCATION:
BROWN AND AMHERST, 1897-1923


The Making of a Scholar

Alexander Meiklejohn's beliefs attracted notice as

early as 1889, when, as valedictorian of the senior class at

Pawtucket(Rhode Island)High School, he argued in favor of

prohibition statutes.' His remarks caught the attention of

the press, which summarized them briefly in a short account

of the graduation ceremony.2 Prohibition had been

controversial in the industrialized, working-class cities of

Rhode Island, but the state had become legally dry in 1887,

joining three of the five other New England states more than

30 years before Prohibition became the law of the land.3

The youngest of eight boys and the only English-born

son of a Scottish textile craftsman, Meiklejohn had been



1 Meiklejohn's handwritten copy of the six-page Apr. 1,
1889 speech is held in the Alexander Meiklejohn Papers,
State Historical Society of Wisconsin, Madison, Box 60,
Folder 5. [Hereinafter referred to as Meiklejohn Papers.]

2 Unlabeled clipping, Meiklejohn Papers, Box 60, Folder
5.

3 Vermont, New Hampshire and Rhode Island all were
declared dry between 1870 and 1887. Maine had been the
first state in the country to enact prohibition laws in the
United States in 1851. Brunelle, James E., ed., Maine
Almanac, Augusta, Me.: Guy Gannett Publishing Co. (1978),
11.








raised in a family that prized firmly-held beliefs. An

important feature of Meiklejohn's early home life in

Rochdale, England was the presence of workers who came by to

discuss grievances against the mill managers with his

father, James. The family was a member of the Rochdale

Cooperative, the world's first consumer cooperative

enterprise, which supplied shareholders with coal, food and

clothing at wholesale prices in exchange for a few hours of

labor weekly. As a result, Meiklejohn embraced the

principles of direct control over life's basic necessities

and participation in communal decision-making throughout his

life.4

In June 1880, when Alexander was eight years old, the

Meiklejohns were sent to Pawtucket by his father's

employers, where James taught the latest fabric dyeing

techniques to the workers in the company's Rhode Island

mill. At home, money was tight, so the family concentrated

on just a few books, studying the Bible and the poetry of

fellow Scot Robert Burns,5 which helped propel young Alex to

the top of his class in the Pawtucket public schools.

After high school, Meiklejohn enrolled at Brown

University in nearby Providence. He lived at home and,

according to university legend, often made the four-mile




"I'm an American," Script No. 65, Interview broadcast
by NBC on radio station WBZ in Boston, MA on Sunday, Aug.
10, 1941; Meiklejohn Papers, Box 35, Folder 3.

5 Id.








journey to classes on foot.6 An outstanding student,

Meiklejohn was elected to Phi Beta Kappa in his junior year.

Slightly built, and of only average height, Meiklejohn was

nevertheless also a versatile athlete and managed to find

time to play with the university's squash, soccer, tennis

and cricket clubs.7 As a graduate student at Brown, he was

also a member of the first intercollegiate ice hockey team,

and is credited in some circles with introducing the flat

puck in place of the round ball previously used in ice polo

following a vacation trip to Canada with the team.8

Meiklejohn, however, was never confident of his historic

role in the game. In 1951, writing in the university's

alumni magazine, Meiklejohn wrote that Harvard may have

played the Canadians first.9 Characteristically, he

neglected to mention that he had been captain of the team.

Meiklejohn, who was usually called Alex, but preferred

Alec, graduated from Brown in 1893 with a degree in

philosophy and stayed on to complete a master's degree two

years later. In 1896, when his mentor, James Seth, left to

join the faculty at Cornell University, Meiklejohn also left

for Ithaca, New York on a hockey scholarship. Completing

his Ph.D. dissertation on Immanuel Kant's theory of


6 "In Memoriam," Brown Daily Herald, Jan. 9, 1965, 6.

7 Id.

8 Evans, A.B., New England Hockey, Andover, MA:
Littleton Press, (1938), 12.

9 "Hockey Pioneers," Brown Alumni Monthly, (Spring
1951), 14-15.








substance0 in 1897, Meiklejohn returned to Brown as an

instructor. He climbed steadily up the academic ladder at

Brown, advancing to assistant professor in 1899, associate

in 1903 and full professor in 1906. In 1901, Meiklejohn

also assumed the responsibilities of the newly-created post

of Dean.1 When Meiklejohn returned from Cornell in 1897,

he was also elected to the Pawtucket School Committee, which

he served until 1903."

Forming Educational Theories

In the classroom, Meiklejohn quickly acquired a

reputation as a tenacious questioner who constantly forced

students to think about their positions. He lectured

infrequently, preferring to pose questions of the students,

then challenging them to justify their responses. This

socratic style of teaching was not common outside of the

newly-established law schools at the turn of the century,

but Meiklejohn saw it as a method of involving the entire

class in the process of evaluating ideas, isolating awkward

or unworkable components, dissecting them and suggesting new

approaches to the problem.13


10 Green, James M., "Alexander Meiklejohn: Innovation in
Undergraduate Education," (Ph.D. dissertation, University of
Michigan, 1970), 59.

11 Bronson, Walter C., History of Brown University,
1764-1914, Providence: Brown University (1914), 481.

12 Letter to Brown classmate Fred Ladd, June 25, 1904.
Meiklejohn Civil Liberties Institute, Berkeley, Box 1,
Folder 8.

13 W. Randolph Burgess, "What Is Truth?" Rights XII
(February 1965), 29.






25

While his questioning style may have been effective in

class, it bedeviled his critics, particularly when he

continued to use it after leaving academia. He never

pretended to have ready solutions to all the problems he

identified, but viewed his often open-ended questions as

valuable contributions in and of themselves. Both in the

classroom and in discussion of public issues, Meiklejohn

above all intended that his questions inspire intellectual

debate rather than suggest complete answers. He believed

that answers would be discovered by the debaters themselves

as a result of this give-and-take, and answers developed

through that process were learned better than those he could

have suggested or imposed.14

As Dean, Meiklejohn also employed a strategy of letting

students work out their own solution as part of an athletics

reform plan to deal with a problem within one of the

university's teams. As baseball soared in popularity in the

late 19th Century, Brown built a reputation for one of the

most formidable college teams in New England. Athletic

conference rules forbade students who played in professional

leagues during the summer from playing on their college

teams, but competition was stiff and administrators honored

the rule mainly in the breach. Some of Brown's best

players, who had spent the summer of 1902 playing with

professional teams on Cape Cod, returned to Providence and


1Id. at 28.






26
found themselves disqualified by decree of the Dean.15 The

move negated the team's championship, won the previous

spring, and infuriated some alumni.'6

Meiklejohn pressed on, however, determined to return

Brown athletics to true amateur status. He took his

athletic reform plan another step and persuaded the faculty

to turn over full responsibility for athletic program

compliance to student managers, whom he believed would

succeed. The students did not let their dean down, and

before long, the Brown model of student oversight of

intercollegiate amateur athletics became the standard.

Gradually, Brown's teams returned to the top levels of

competitiveness and attendance at games recovered, then

eclipsed, previous numbers.17

For Meiklejohn, the crisis over how to handle the

university's athletic teams went far beyond the question of

professionalism in college sports. He regarded the issue as

a crucible to test his views on his students' ability to

make sound decisions. Meiklejohn proceeded from the belief

that, handed the authority to supervise athletics and faced

with the responsibility for the programs' eventual success

or failure, students would choose a course of action that

would maintain the university's trust in their abilities.


15 Report of the Dean to the President and Trustees,
1902-1903, Brown University Archives, Providence, RI, 20.
16 The university archives contain seven letters
protesting Meiklejohn's decision.
17 Bronson, History of Brown University, at 484-85.








The Dean had believed that the freedom to run the athletic

programs could not be taught successfully by rigid

enforcement of rules by administrators.18 When student

managers met to establish policy, they chose regulations

that were in the best interests and the teams and the

university and the administration continued its policy of

non-interference. Meiklejohn had decided that the way to

teach freedom was to grant it.

Testing Educational Theories

By 1911, Meiklejohn had acquired a solid regional

reputation as a firm, but popular, administrator and an

effective, but moderate, reformer. His accomplishments at

Brown attracted the attention of the trustees of Amherst

College, several of whom were Brown alumni. Amherst itself

had attracted notice in 1910, when a committee of members of

the Class of 1885 issued a report on the state of the

college. The group, which had formed at their 25th reunion,

believed that standards had slipped over the years and that

their alma mater was being left behind in the wake of

changes in higher education that had been underway since the

late 19th Century.

One of the problems the alumni report identified was

the size of the college, which the committee felt had grown

too big, abetted by low entrance standards. The group also

suggested a return to a rigidly classical curriculum,

elimination of the Bachelor of Science degree, hiring of


18 Id.








new, younger faculty from outside the college and an

emphasis on scholarship.19 When the trustees invited

Meiklejohn to visit Amherst during their search for a new

president, he had already read the report, and although he

"did not know where Amherst was," he admitted to a friend,

his interest was piqued. "Wouldn't you like to get ahold of

a college like that; wouldn't it mean something to make

those ideas clear and make them work?"20

Meiklejohn was offered that chance in May 1912 as

Amherst's eighth president. As rumors of the impending move

spread, letters poured in urging Meiklejohn to accept the

challenge he had identified. The letters were mainly from

his friends in academia, but also from Brown alumni such as

Charles Evans Hughes, Jr., editor of the Harvard Law Review,

who had apparently been one of the first to hear the news.

Another came from the New York Evening Post's city editor, a

Brown classmate and Theta Delta Chi fraternity brother who

pleaded for confirmation of the rumor, that he might scoop

the Amherst graduate who was his counterpart at the New York

Sun.21






19 Report of the Dean to the President and Trustees,
1902-1903, Brown University Archives, Providence, R.I.
20 "Some Addresses Delivered at Amherst College
Commencement Time, 1923," Alumni of Amherst College, 1924,
Amherst College Archives, Amherst, MA, 49.
21 Charles C. Selden to Meiklejohn, May 15, 1912,
Meiklejohn Papers, Box 2, Folder 14.








Amherst College had been founded in 1821 to educate

Protestant clergy.2 By the end of the century, the goal

had become a more general one of educating men. In the 20th

Century, major universities were changing their missions for

the new purpose of creating knowledge, but at Amherst,

Meiklejohn's purpose was to create an environment that would

encourage students to learn how to think. Just what

teaching thinking entailed was not clear to the college

community when the new, 40-year-old president arrived in

October 1912. Over the next 11 years, Meiklejohn would show

them, creating more of an interest in the college than the

trustees could imagine, or endure.

In his inaugural address, Meiklejohn served notice to

the Amherst College community that he would be an activist

president. His intention to make fundamental changes to a

college experience grounded in the classics was explicit:

"To give boys an intellectual grasp on human experience--

this, it seems to me, is the teacher's conception of the

chief function of the liberal college."23

Among the first changes instituted by Meiklejohn were

adjustments to the curriculum. By far the most

controversial was a freshman course called "Social and

Economic Institutions," designed by Meiklejohn to begin


22 Of the 40 members of the Class of 1834, 18 became
Congregational clergymen. Education at Amherst, Gail
Kennedy, ed., New York: Harper and Bros. (1955), 22.
23 Meiklejohn, Alexander, Inaugural Address of the
Eighth President of Amherst College, Oct. 16, 1912, Amherst
College Archives, Amherst, MA.







students' thinking about the foundations of American

society. The course, which was popular with the students,

immediately came under fire from conservative faculty

members for its "vagueness of content and looseness of

method."24 The course weathered the attack and was taught

for many years thereafter.

Another of Meiklejohn's changes was a de-emphasis of

specialized courses. He was not against specialization but

thought it inappropriate for a college curriculum and best

pursued after completion of a liberal college education.

The intellectual road to success is longer and more
roundabout than any other, but they who are strong and
willing for the climbing are brought to higher levels
of achievement than they could possibly have attained
had they gone straight forward in the pathway of quick
returns.25

Meiklejohn admitted that students needed specialized

vocational training. He simply did not think that the

acquisition of such operational tools was a proper goal of

college. Vocational training provided none of the insight

necessary for informed discussion and decision-making on

basic political issues.

College teachers know that the world must have trained
workmen, skilled operatives, clever buyers and sellers,
efficient directors, resourceful manufacturers, able
lawyers, ministers, physicians and teachers. But it is
equally true that in order to do its own work, the
liberal college must leave the special and technical
training for these trades and professions to be done in


24 Green, James M., "Alexander Meiklejohn: Innovation in
Undergraduate Education," (Ph.D. dissertation, University of
Michigan, 1970), 145-46.
25 Meiklejohn, Alexander, Freedom and the College, New
York: Century Co. (1923), 170.







other schools and by other methods. In a word, the
liberal college does not pretend to give all the kinds
of teaching which a young man of college age may
profitably receive; it does not even claim to give all
the kinds of intellectual training which are worth
giving. It is committed to intellectual training of
the liberal type.26

Meiklejohn also opposed the proliferation of elective

courses listed in college catalogs. This late 19th Century

development was the invention of Charles W. Eliot, president

of Harvard University, and widely emulated among other

educators by the early 20th Century." Eliot, who was in

his day the most significant figure in American higher

education, did not impress Meiklejohn.

In my opinion it seems probable that the most important
fact connected with the development of the elective
system in America is that Charles William Eliot was a
chemist. So far as I know he is the greatest leader in
collegiate policy that America has had. But the modes
of thought of his powerful leadership are predominantly
the mechanical terms of chemical analysis. Those
terms, with all their values and all their limitations,
he for a long time fixed upon the academic thinking of
this country.28

About Eliot's system he added:

In a word, it seems to me that our willingness to allow
students to wander about in the college curriculum is
one of the most characteristic expressions of a certain
intellectual agnosticism, a kind of intellectual




26 Meiklejohn, Alexander, "The Aim of the Liberal
College", in Fulton, Maurice G., ed., College Life, New
York: Century Co. (1921), 34-35.
27 By 1894, the only required courses at Harvard
University were French or German, English Composition,
physics and chemistry. Pulliam, John D. and Van Patten,
James, History of Education in America, Englewood Cliffs,
N.J.: Prentice-Hall (6th ed. 1995), 97-98.
28 Meiklejohn, Freedom and the College, at 196.








bankruptcy, into which, in spite of all our wealth of
information, the spirit of the time has fallen.29

Meiklejohn pointed out this hazard because a college

did not have to inevitably fall into the same trap, he said.

A college could escape the fashionable system that he felt

was undermining the colleges' mission, "But I do not believe

that this result can be achieved without a radical reversal

of the college curriculum."30

Meiklejohn's "radical reversal" had begun with the

"Social and Economic Institutions" course, and continued

with his efforts to break the hold of the classics by

introducing additional concepts of modern thought through

courses in the fields of sociology, psychology, economics,

history and the natural sciences. Opposition to courses

that called into question the religious foundation of

education had been common in the late 19th Century, as

exemplified by the furor that accompanied John Fiske's

attempt to teach Charles Darwin's Origin of the Species at

Harvard University in 1860.31 A similar attitude prevailed

at Amherst well into the 20th Century, where most of the

faculty were older men who were themselves graduates of







SId. at 178.

30 Id. at 188.

31 Gabel, Gerhard, Nineteenth Century Religious
Teachings at Private Colleges and Universities, Trumbull,
Conn.: F.E. King and Sons, (1925), 132-34.








Amherst and adherents of the college's Calvinist

traditions.32

One of Meiklejohn's major efforts at reform, and one of

his major defeats, was his suggestion that Amherst's

four-year college course emphasize the humanities and be

divided into two parts.33 Most strikingly, Meiklejohn's

proposal cut back considerably on courses in religion and

the classics, accelerating the trend that had already been

objected to by the Class of 1885. Although change was

already underway, a classical education was still the

typical academic foundation of small, private,

church-affiliated colleges.

Meiklejohn called the first two years' curriculum, a

rigidly defined collection of readings in philosophy,

history, economics and social science, the "junior college."

The second half of the bifurcated curriculum narrowed the

subject matter considerably. The coursework in the "senior

college" would not be limited to a single subject or become

technical or specialized but rather would rely on the

individual student's background and interests to form

connections with broader issues by drawing on the first two

years' readings in the humanities. The "senior college"

would end with a comprehensive test, based on the student's




3Id. at 158.

33 Meiklejohn, Alexander, "How Shall We Teach?", Message
to the Board of Trustees, September 1919. Amherst College
Archives, Amherst, MA, Box 8, Folder 4.








own work and drawing its questions from the issues he had

examined in his own studies.34

Underlying Meiklejohn's educational plan was a

philosophy of human freedom based on enlightened choice. In

contrast with the traditional Bible-based approach to human

nature, the humanistic view espoused by Meiklejohn was

threatening to the old order. The humanities, as the new

type of curriculum came to be known, were studied in the

context of actual human social experience. Described as a

"vital and dynamic element in general education which must

be concerned with modern subjects,"35 a humanities

curriculum has four purposes: "[it] broadens learning,

stimulates imagination, kindles sympathy and inspires a

sense of human dignity."3

Meiklejohn was a fervent believer in the approach to

education contained in his proposal. He seemed aware that

the plan was a radical one but thought that it was worth

taking a chance and that a small college like Amherst was

the place to try it:

The real question as to such a plan is not "Is it
desirable?", but "Can it be made to work?" And
the question is not one to be evaded. But my own
conviction is very strong that the thing can be
done. I am certain that it ought to be tried. It
is better to see what can be accomplished along



34 Id.

35 Beesley, Patricia, The Revival of the Humanities in
America, New York: Columbia University Press (1940), 49.

6 Green, Theodore M., The Meaning of the Humanities,
Princeton, N.J.: Princeton University Press (1938), 42.








such a line than to wait ignobly for someone else
to make the attempt.37

The trustees, however, were not ready for such a

departure from what they perceived as a reasonably

progressive and modern curriculum that had been honed over

the previous 20 years or so and updated by the inclusion of

modern history courses.38 The trustees were especially

irritated by the fact that the proposal was accompanied by

Meiklejohn's assertion that even failure of his curriculum

to produce graduates capable of analytical thought was

preferable to not having even made the attempt: "A death

like that would be a noble ending, the sort of thing from

which many splendid enterprises have sprung.""39 Here was a

fundamental difference between Meiklejohn and the trustees.

For Meiklejohn, educational progress was continual

evolution, an ongoing experiment; for Amherst's trustees and

older alumni, education was a tradition deeply connected to

the past. A rapidly changing technological society was

insufficient reason to change; perhaps even a reason to

proceed ever more slowly and cautiously.'" The trustees did



37 Meiklejohn, Alexander, The Liberal College, Boston:
Marshall Jones Co., (1920), 161. The Liberal College is a
collection of Meiklejohn's essays and speeches published by
Amherst as part of the college's 100th anniversary
celebration.
38 Id. at 160.

39 Id. at 161.

40 Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley, Calif.: Meiklejohn Civil Liberties
Institute (1981), 16,19.








manage to block Meiklejohn's plans for restructuring the

curriculum into the two-part program he envisioned.

However, he had sufficient support on the board to

establish, one or two at a time, most of the humanities

courses he wanted.

If Amherst was resistant to change, other colleges and

universities were not. From modest beginnings at Columbia

University as early as 1919, humanities-based curricula were

adopted by at least 11 colleges and universities between the

late 1920s and mid-1940s.41

Fifteen years after Meiklejohn's 1923 departure,

Amherst itself began to take steps toward strengthening the

humanities curriculum that Meiklejohn had begun. In 1938,

the seven-member Amherst Faculty Committee on Long-Range

Policy reported, "It is the function of the liberal college

to require at least an intelligent consideration of a few

fields of knowledge which the College, by the fact of its

teaching them, has marked as significant."42



41 Shoemaker, Francis, Aesthetic Experience and the
Humanities, New York: Columbia University Press (1943),
155-89. Humanities-oriented curricula adopted between the
late 1920s and the time of the Second World War: Stephens
College (1928); Scripps College (1928); Antioch College
(1930); Johns Hopkins University (1930); University of
Chicago (1931), under Meiklejohn's friend, Robert M.
Hutchins; University of Michigan (1932); University of
Minnesota (1932); Stanford University (1935); Princeton
University (1936); Columbia University (1937), under Jacques
Barzun; Mills College (1943).
42 Communication to the Curriculum Committee, Nov. 11,
1938. The report was signed by professors Ralph A. Beebe
and George B. Funnell. Amherst College Archives, Amherst,
MA.








By the mid-1940s, Meiklejohn's goal of a two-part,

humanities-oriented college curriculum at Amherst was a

reality, although the terminology was slightly different.

The "lower college" was designed as partly remedial and as a

general foundation for the last two years in the "upper

college." "These (lower college) courses should be both so

distributed and so related to one another that by the end of

the sophomore year the students will have accomplished two

things: they will have a common body of knowledge in each of

the three great fields of the curriculum43 and each will

have been able to make a significant beginning in work

preparatory to a major [and] to be able to conclude

work for that major during the last two years."" Major

requirements had also become more rigorous, increasing from

three to five year-long courses in the field.45

The Roots of Controversy at Amherst

Not all of the efforts to change the curriculum and the

controversies they engendered were of Meiklejohn's doing. A

deep philosophical split over the curriculum was evident

several months before Meiklejohn accepted the trustees'

offer of the presidency. Spurred by the 1910 report of the

Class of 1885, the debate over the future of the college

continued in the pages of the new alumni magazine.



43 Mathematics and Natural Sciences; Social Studies and
Philosophy; and Languages, Literature and the Arts.

44 Kennedy, Education at Amherst, 39.

45 Id. at 37.








Frederick J.E. Woodbridge, dean of the graduate faculty at

Columbia University, staked out one side's position in the

first issue. He attacked as spurious the theory that

education should foster the service or character ideal,

repudiated the concept of moral indoctrination and spoke out

plainly for intellectual values. The college experience

should be "the process of educating the emotions to act

rationally," he wrote46 He was bitterly challenged as

"un-Christian" in the next issue by Cornelius H. Patton,

Class of 1883, who wrote, "I have always understood that

Amherst stood for a spiritual philosophy as against mere

intellectualism."47

Agreement between the two alumni factions with the

original point in the 1910 report of the Class of 1885 that

something should be done to raise the level of teaching and

study obscured the fundamental issue of the future direction

of the college. The Woodbridge-Patton dispute, however,

illustrated the size of the gulf between the two groups.

Without some semblance of unity, any chance of realizing the

goal of an improved college was impossible. Meiklejohn was

perhaps doomed to fail even before he arrived.

As the trustees began to evaluate candidates for

president, the faculty communicated its feelings to the

board. Its brief message indicated that they preferred

George D. Olds, a senior mathematics professor who had been


46 1 Amherst Graduates' Quarterly, (October 1911), 21.

41 Amherst Graduates' Quarterly, (January 1912), 56.








on the faculty for more than 20 years.48 Losing sight of

the wishes of several of the groups within the college

community by concentrating exclusively on the need to

replace the retiring president, the trustees selected

Meiklejohn, antagonized the faculty and alienated a good

portion of the college's alumni who sympathized with Patton.

Meiklejohn did enjoy victories during his tenure such

as a more than doubling of the college's endowment, but

ultimately even one of his successes became a weapon to be

used against him. Meiklejohn had identified a gulf in

social science study between Europe, especially Great

Britain, and the United States and thought the differences

would create opportunities for discussion. Meiklejohn

instituted the practice of visiting lecturers and other

short-term appointments to bring distinguished scholars to

campus,49 a tradition that is followed to this day. One of

the first visiting scholars was R. H. Tawney, a British

labor historian with leftist leanings who arrived in the

spring of 1920. Other Meiklejohn-recruited lecturers who

spent several weeks to several months at Amherst were poet

William Butler Yeats, historian Charles Beard and labor






48 Letter to the Board of Trustees, Mar. 14, 1912,
Papers of President Julius Seelye, Amherst College Archives,
Amherst, MA., Box 4, Folder 1.

4Letter to the Board of Trustees, Oct. 2, 1919,
announcing plans to bring economist Ernest Baker to campus.
Amherst College Archives, Amhert, MA. Box 11, Folder 7.








economist Harold J. Laski.50 In the same vein, during the

last few months of his tenure, Meiklejohn was working to

create endowments to fund additional visiting lecturers in

literature, physics and philosophy.51

Meiklejohn created friction between campus factions by

attempting to alter the content of courses and classroom

methods, imposing texts and testing requirements. These

maneuvers fostered resentment among senior faculty members

who uniformly viewed the moves as encroachments into their

academic freedom.52 Although Meiklejohn had been successful

in recruiting new faculty, most of Amherst's faculty had

been hired and tenured long before his inauguration. Even

some of the new faculty chafed under Meiklejohn's methods.

Future four-time Pulitzer Prize winning poet Robert Frost,

who had been hired by Meiklejohn in 1916, quit the faculty

in 1920 because of conflicts with the president, though he







50 Lipset, Seymour M. and Riesman, David, Education and
Politics at Harvard, Berkeley: Carnegie Commission on Higher
Education (1975), 140. Laski's appointment was a particular
source of rancor for Calvin Coolidge (Amherst 1895) because
of Laski's support of the 1919 Boston police strike. As
governor, Coolidge had broken the strike, a stand that was
at least partly responsible for his elevation to
vice-presidential candidate on the successful 1920
Republican ticket.
51 Meiklejohn, Alexander, "The Measure of a College," 12
Amherst Graduate's Quarterly, (February 1923), 90.
52 Partial letter to the Board of Trustees, Apr. 6,
1921, Amherst College Archives, Amherst, MA.








returned after Meiklejohn left.53 Chief among Frost's

complaints was Meiklejohn's attempt to reduce the number of

poetry courses offered by the English Department.54

A serious public squabble during Meiklejohn's tenure

has generally been interpreted in a manner that has put him

on the unpopular side of a patriotic issue. In late 1916,

when the First World War had been raging in Europe for more

than two years and the United States' April 1917 entry into

the conflict was only months away, Massachusetts Lt. Gov.

and Amherst alumnus Calvin Coolidge came to speak to a

"preparedness" group on campus." In keeping with his

position that all sides of issues be discussed, Meiklejohn

insisted that the anti-war point of view be represented at

the meeting as well. Alumni were outraged that Meiklejohn

remained completely neutral, but his position did not have

the feared effect of promoting unpatriotic sentiment on

campus.56 Meiklejohn also counseled his students to stay in

school as long as possible. When war was declared, however,

he told them they were obliged to serve when called.



53 Frost won the Pulitzer Prize for Poetry in 1924,
1931, 1937 and 1943. The Amherst College library, which was
built shortly after Frost died in 1963, is named in his
memory.

s4 Robert Frost to the Board of Trustees, letter of
resignation, May 11, 1920, Amherst College Archives,
Amherst, MA.
55 "Lt. Gov. Tours Central Mass. Colleges," Springfield
Union, Nov. 14, 1916, 8.
56 Minutes, meeting of the Board of Trustees, Jan. 10,
1917, Amherst College Archives, Amherst, MA.








The policy of the Secretary of War seems to me
fundamentally right. All men within military age
should be classified as subject to call and the War
Department should be empowered to assign each man or
each group of men to the work in which they can be of
greatest service. Students should remain in college,
just as other men should remain in their employment
until the call to other service comes. Education is
vitally important but, like other important things, it
must and will give way so far as necessary in the
present emergency. All that men in charge of education
demand is that the interests involved be really
considered. In my judgment, the fewer the limitations
placed upon the discretion of the War Department, the
better will be the outcome.57

Far from being unpatriotic, Meiklejohn had spoken and

written on his position well before Coolidge's visit,

maintaining that serious study was a patriotic activity and

stressing the importance of education and the role of the

college in the war effort and beyond. In an address to the

Academy of Political Science on May 18, 1916, Meiklejohn

said that the United States' hope for military success as

well as integration of national life "lies in the

development of a Mind." He also argued that the mental

discipline needed for a soldier could be taught in liberal

arts colleges as well as in military schools.58

After the war, the college's attention focused on

athletics, and again, Meiklejohn was in the thick of the



57 Undated typewritten draft memo, Meiklejohn Papers,
Box 33, Folder 4. This short message, double-spaced and
edited in pencil, was probably written at about the time of
the November 1916 meeting. It appears to be a version
prepared for Meiklejohn to deliver orally, since it is
unfolded and his personal correspondence was not typed.
58 Meiklejohn's remarks were published as "A
Schoolmaster's View of Compulsory Military Training," in IV
School and Society 79 (July 1, 1916), 9-14.






43
fray. At first, the problem was the same as it had been at

Brown: students played on professional teams during the

summer and returned to college teams during the school year.

Again, Meiklejohn insisted that they were not eligible, and

again, the alumni howled. Meiklejohn also refused to hire

full-time professional coaches, instead pressing faculty

members into unpaid service and using part-timers from the

town. As a result, he was blamed directly for Amherst's

athletic decline.59 The issue came to a head at the

November 1922 Alumni Council meeting, at which the group

voted to send a message to Meiklejohn asking that he respond

to a question, not so different than might be asked at some

athletic powerhouses today: How are we to measure the worth

of Amherst if not in the generally recognized currency of

athletic prowess?

Meiklejohn answered politely, but characteristically:

When you look at our team on the field you will see
college students playing football, not football players
attending college in order to play. You must
make up your team fairly and generously; you must play
to win; and then the victory will take care of itself.
If you win, you win. If you don't win somebody else
does. I don't know what more can be said.6

Meiklejohn's article on the subject of collegiate

athletics in the Atlantic Monthly put a national slant on

the problem that was debated in its pages for months. In

his article, the president followed the theme that he had


59 Malone, John E., "Ups and Downs on the Playing
Fields," Massachusettts College Athletics (Summer 1922), 33.

6Meiklejohn, Alexander, "The Measure of a College," 12
Amherst Graduates' Quarterly (February 1923), 88.








developed at Brown. He reiterated his belief that sports,

responsibly organized and supervised, were an integral part

of education whose benefits inured primarily to the student

and not the college.

I believe in college education, but I do not believe in
furthering it by the abuse of the play of students. My
observation is that when the attempt is made we spoil
not only the play but the education.61

In his private correspondence, however, Meiklejohn was far

less circumspect. In response to a letter congratulating

him on the position he staked out in the Atlantic article,

he showed his impatience with the issue with a touch of

pique, writing, ". much of the alumni interpretation of

our situation is dull and stupid."62

Meiklejohn might have had a similar response to alumni

criticism of some of his visiting lecturers, especially the

British labor historian R. H. Tawney, who some suspected of

being a socialist. Indeed, he was, and Meiklejohn's embrace

of some of his views caused him to be tarred with the same

brush. For one thing, Meiklejohn organized classes for

members of labor unions in Holyoke and Springfield to the

south, in the mills along the Connecticut River.

Ironically, the unions distrusted the well-spoken






61Meiklejohn, Alexander, "What Are College Games For?"
30 Atlantic Monthly (November 1922), 671.

62 Meiklejohn to Ephraim Emerton, Nov. 13, 1922, Amherst
College Archives, Amherst, MA, Box 10, Folder 13.








"professor," in the belief that the college would try to

inculcate capitalist values in the classroom.63

Conservative alumni had some difficulty with

Meiklejohn's commitment to exposing students to divergent

views on a variety of issues. The fathers of many of

Meiklejohn's students were wealthy capitalists who had sent

their sons to Amherst for safekeeping and polishing, not for

encouragement in questioning the foundations of capitalism.

Such critical thinking is often uncomfortable for those who

are criticized.

During the period of anti-socialist hysteria, an

alumnus asked Meiklejohn, "Would you have a bolshevik as a

professor?" The president's response, "I'd have anyone if

he were a good teacher," only served to increase

suspicions."

One writer noted that, "One of the awkward results of

the years of liberal thought in Amherst College was that it

frequently made the sons of upper and middle class families

zealous to liberate those whom their fathers exploited."65

Meiklejohn and Academic Freedom

In contrast to the relatively infrequent but

high-profile events involving questions of academic freedom



63 Meiklejohn, Alexander, "The Measure of a College,"
12 Amherst Graduates' Quarterly, (February 1923), 90.
64 Julius Seelye Bixler (Amherst 1916), "The Meiklejohn
Affair," 25 Amherst (Spring 1973), 3.
65 Price, Lucien, Prophet Unawares: The Romance of an
Idea, New York: Century Co. (1924), 35-36.








that agitated alumni and were debated in the pages of

Amherst Graduates' Quarterly during the last half of his

tenure, Meiklejohn struggled largely unnoticed for most of

his tenure at Amherst with the more fundamental problem of

justifying the importance of academic freedom. Issues

involving academic freedom bubbled up periodically, but

usually as only part of another more gripping controversy,

such as socialists lecturing on campus, and was a constant

source of tension between Meiklejohn and the trustees. The

debate over the nature and extent of academic freedom was

conducted mainly out of public view in the pages of academic

administrators' journals, where Meiklejohn championed his

belief in unfettered classroom discussion from nearly the

beginning of his presidency.

Meiklejohn believed that the goal of a liberal

education was an agile mind, one that was able to analyze

often conflicting points of view and apply them to current

social and political problems. He believed that type of

academic experience required the freedom to explore ideas

and assumed that all points of view would be presented in

the classroom for evaluation by the student. Exclusion or

imposition of any point of view by college trustees or other

officials foreclosed the possibility of academic freedom and

was fatal to the process of education.

Meiklejohn's first mention of academic freedom at

Amherst appeared in his commencement remarks in 1914. The

speech was never published and probably did not circulate






47

far beyond the college community. In it, Meiklejohn lauded

academic freedom in the form of support for criticism of a

point of view guided by intellect. One sentence in

particular indicated clearly what the president had in mind

as Amherst's model teaching style and foreshadowed his

position on the matter for the rest of his academic career:

Ideas do not live and flourish when transplanted from
the soil of active search and opposition from which
they spring to that of passive unquestioning
acceptance. They soon lose their vigor and fade
away."

The 1915 annual meeting of the Association of American

Colleges, less than three years into Meiklejohn's

presidency, marked the beginning of his plunge into the

contentious arena of debate over the nature and extent of

academic freedom. The first few years at Amherst had seen

no ferment on campus over academic freedom, as Meiklejohn

had done little to upset the status quo. The issue was not

a new one for academia, however, and in 1915 had been

wrestled with for at least 25 years, loosely tracking the

ebb and flow of the American labor movement that provided

much of the material for study in economics classes.67 In

1915, anarchy as preached by labor leaders was one of the

major evils perceived by the establishment to be threatening

the nation. Anarchist Emma Goldman had toured the nation



6 Unpublished speech (baccalaureate address), Amherst
College, June 21, 1914, 3. Meiklejohn Papers, Box 1, Folder
3.

67 Ericson, P.A., Economics: An Educational History,
Hartford, Conn.: Trimount Press (1951), 66.








earlier in the decade and drawn a large crowd in New York

City in 1914 at a rally with Bill Haywood of the

International Workers of the World. At the rally, Goldman

denounced government accommodation of business interests and

advocated unionization and workers' control of the means of

production. Many of Goldman's supporters, fretted the New

York Times, were "men of education and culture of that

class of 'intellectuals' to which Miss Goldman looks so

hopefully. ""

Left-wing politics and academic freedom came up at the

Association of American College's meeting when formal

discussion turned to a report on administrative control of

classroom teaching submitted by a committee of the

Association of University Professors. The report, as

Meiklejohn described it, was primarily a litany of examples

of abuses of academic freedom from colleges and universities

around the country. The complaints ranged from inconvenient

scheduling and assignment to undesirable courses to denial

of tenure and dismissal on the basis of professors'

memberships and activities outside of class. Meiklejohn had

nominally been a member of the committee that drafted the

report, but had refused to sign the final product.

Meiklejohn believed that discussion of infractions of

academic freedom was futile and ineffective in helping to

preserve those freedoms unless faculties and administrations


68 New York Times, Mar. 29, 1914, 2, quoted in May,
Henry F., The End of American Innocence, New York: Alfred A.
Knopf (1959), 302.








understood what academic freedom was and why it was

important to the educational process and not just individual

faculty members. He regarded administrative meddling that

impinged on professors' freedoms as the enemy.69 In

Meiklejohn's analysis, the enemy was not an administration

that held to a conservative institutional viewpoint but an

administration that used its authority to wield that

viewpoint against a faculty by controlling classroom

activities through intimidation. One point the report made

that Meiklejohn did approve of was its recommendation that

faculty members be granted veto power to block

administration efforts to dismiss fellow professors on the

basis of unpopular views.

Meiklejohn said that the report, which approached the

issue of academic freedom from the standpoint of faculty

reappointment and dismissal, rather than course content, was

simply an attempt to protect faculty jobs rather than deal

with the underlying issue of protecting freedom for

students' benefit.m The report, Meiklejohn conceded, was

strongly protective of faculty rights to free speech but was

too narrow and did not do enough to protect the educational

process.



69 Meiklejohn, Alexander, "Tenure of Office and Academic
Freedom," Proceedings of the Association of American
Colleges, (April 1916) 182, 183. Meiklejohn's references to
and characterization of the AAUP report in the text of this
speech is the only published evidence of the content of that
document.

0Id. at 184.






50
Even if Meiklejohn had agreed that concern with faculty

rights was of primary importance in the area of academic

freedom, the hiring process was a far easier way for

administrators to control a faculty than the painful

spectacle of dismissals, he said. He reminded the

convention that if the report's authors presupposed a

sinister attack on academic freedom by administrators, as he

believed they had, they had missed the point by focusing on

the security of existing faculty. He told them that if an

administration were truly bent on ferreting out potential

troublemakers, the better way to handle the matter quietly

would be to ask others about them during the hiring process

and ask the candidates directly during private interviews.

That, he said, would avoid the public clamor surrounding a

later dismissal.71

Meiklejohn had risked fanning the flames that could

destroy academic freedom by not only alluding to but

actually publicly outlining a clandestine method of

discriminating and selecting faculty with a conservative,

institutionally approved view on political and social

issues. He did so, though, to question the propriety of

point-of-view examination, its uses and abuses and its

relative weight in the faculty hiring process. The best

approach, Meiklejohn said, would be before hiring to settle

the question of whether a professor's views on subjects such


71 Id.








as socialism and labor reform movements are within the

proper scope of consideration by the administration.

Meiklejohn also took exception to another issue raised

in the report that, on its face, appeared to come down on

the side of faculty free speech. The report had expressed

concern that administrators would sacrifice academic freedom

to preserve financial support from wealthy alumni.

Meiklejohn took the report's authors to task for their

placement of faculty and administration in opposition to

each other over sources of financial support of the

institution. He chided them for falling prey to the

assumption that administrators would try to prohibit

discussion of controversial topics to avoid alienating

donors and protect the school's financial welfare.

Meiklejohn's solution to the potential conflict between

gifts and academic freedom was charmingly simple, if naive:

if it were truly believed that college administrators were

being bought off, the only honest answer to the dilemma

would be to not accept gifts. If administrators were

reluctant to turn down donations that had strings attached,

he saw no future for academic freedom.7

Meiklejohn tempered his drastic recommendation that

administrators eschew gifts, which must have shocked some

members of the audience, by imploring administrators to

avoid an overdependence on donations by reducing capital

spending. He urged that they be satisfied with the moderate


72 Id. at 185.








amount of funds available from existing endowments. He

asked them to resist the temptation to grow, which required

dependence on more money from outside the college to build

buildings, buy equipment and meet bigger payrolls. He urged

them to fix their attention on the things that were already

within their power such as quality of instruction, which

could be met from present budgets, if spending on the

physical plant were reduced. When spending was brought

under control so that obligations could be met from existing

funds, Meiklejohn said, pressure from interest groups

outside the college would be eliminated and there would be

no question about academic freedom.7

At the meeting Meiklejohn also took issue with the view

of another attendee that limitation of classroom discussion

of matters beyond reasonable controversy was proper.7

Rather than attempt to define what might be reasonable and

what might not be, Meiklejohn discussed the issue in terms

of people, not topics. On one hand, Meiklejohn admitted

that it would not make sense to discuss matters that are

unreasonable. But, he worried, how would that be

determined? He saw attempts to influence the topics that

could be handled by presumably intelligent teachers as

unjustifiable interference. Meiklejohn's educational goal

of developing critical thinking skills depended on a ready

pool of varying opinion. In his view, attempts to limit the


SId. at 185-87.

4 Meiklejohn, "Tenure of Office," at 180.








field of inquiry doomed his stated purpose of education.

There could be no middle ground; there could be but one test

for whether or not a matter were within the limits of

reasonable controversy: whatever reasonable people might be

in disagreement about is a matter of reasonable

controversy.7

During the discussion of what viewpoints were

acceptable for study, there was an assertion that it was not

fair to students to introduce them to problems that required

complex thinking. Meiklejohn handled the situation deftly

and eloquently:

As against this I protest that the one essentially
unfair procedure of an intellectual institution is to
represent to a student that he is being honestly and
fully introduced into the realm of thinking when he is
in reality being led by the nose to some fixed and
determined conclusion which, for some reason or other,
it is regarded as important for him to believe.7

In the spring of 1917, more than a year after the

conference, Meiklejohn received a letter from the president

of Cornell University, writing as the new president of the

American Association of University Professors,

congratulating him on his stand against the report's

conclusions.7 Archival materials contain no response from

colleagues, either favorable or unfavorable, from the

1915-16 period, however.


Id.

7Id.

SLetter to Meiklejohn from Frank Thilly, Mar. 17,
1917, Amherst College Archives, Amherst, MA, Box 6, Folder
9.








The gist of Meiklejohn's remarks at the Association

meeting were later contained in an Atlantic Monthly article

published in early 1918.7 His decision to air his views in

a popular magazine only added to the tensions with the

Amherst trustees," but his argument struck a chord with at

least one professor outside the Amherst College community.

Among the admirers of Meiklejohn's views was a professor

from Topeka who apparently wrote to describe difficulties he

and his colleagues were encountering with officials at

Washburn University. In response, Meiklejohn wrote: "I am

sorry to hear that you are engaged in a discussion of

academic freedom on your campus because that usually means

trouble is around."80

Meikleiohn's Fall From Grace

For the first seven or eight years at Amherst, the

trustees were willing to support Meiklejohn against the

criticism of alumni, but eventually they perceived that the

academic reputation of the college was declining among








78 Meiklejohn, Alexander, "The Freedom of the College,"
121 Atlantic Monthly (January 1918), 83.

9 George Plimpton to Meiklejohn, Mar. 4, 1918. "Your
recent publication is causing an erosion of support among
our members." Amherst College Archives, Box 28, Folder 1.
Plimpton, who was a personal friend of Meiklejohn, was also
chairman of the college's board of trustees from 1910-1926.

80 Meiklejohn to S.G. Hefelbower, Feb. 25, 1920, Amherst
College Archives, Amherst, MA, Box 6, Folder 9.








alumni and members of the public.81 They also became

uncomfortable with the scrutiny of the national press into

the continuing debates over college policies, and a majority

of the trustees decided they could no longer support

Meiklejohn and what they perceived as his more radical

decisions.82

The situation reached a critical point in late 1922

when two significant internal investigations were concluded

at about the same time, and taken together, their findings

did not augur well for the Meiklejohn administration. The

first investigation looked at Meiklejohn's finances and the

second, at faculty appointments.

Meiklejohn's finances were more of a public relations

disaster than a true scandal, and there was no indication of

any wrongdoing. The first investigation found that

Meiklejohn had wildly overspent his household budget, which

was funded by the trustees, and for some time the deficits

had been made up out of the pockets of individual members of






81 George Plimpton to Meiklejohn, Apr. 18, 1920,
"members are uncomfortable with questions about what is
happening at the College." Amherst College Archives,
Amherst, MA, Box 28, Folder 1.
82 In 1921, Plimpton informed Meiklejohn that he had
lost most of his support on the Board of Trustees.
Meiklejohn is said to have replied, "Then under the
circumstances it might be wise for the board to resign."
Donald Ramsey, "Old Amherst Sells Its Soul," Labor (date and
page unknown). From a partial tearsheet in the Meiklejohn
Papers, Box 40, Folder 4.








the board. As Robert Frost bluntly put it, "He didn't pay

his bills."8

Evidence seems to point to the second of the two

reports as being as much the product of an intensive

lobbying effort by older faculty opposed to Meiklejohn's

handling of a faculty promotion than of any real wrongdoing

on Meiklejohn's part.8 Much of the controversy involved

conflict between the older faculty who had been trained as

ministers and European-trained PhDs. Amherst had obviously

gone through wrenching changes from 1912 to 1922 during

Meiklejohn's tenure. Revision of the curriculum and

visiting socialist scholars were among the most prominent of

those changes. The newly popular humanistic approach to

academics in American colleges and universities created

friction and resentment among those who clung to the

literalistic and often Bible-based elements of the 19th

Century belief in education as indoctrination.

The primary thrust of the faculty appointment

investigation centered around Meiklejohn's role in promoting

a young instructor he believed held great promise. After

the president received approval from the trustees for his

plan, however, the senior faculty charged that he hadn't

fully represented the depth of their opposition to the



SQuoted by Julius Seelye Bixler, (Amherst 1916), in
"The Meiklejohn Affair," 25 Amherst, Spring 1973, 4. The
article re-evaluates the last months of Meiklejohn's tenure
on the 50th anniversary of his departure.
8Id. at 5.






57
promotion. They charged that he put his own judgment first

and in effect gave himself sole decisionmaking power over

faculty affairs.85

The report also charged Meiklejohn with administrative

incompetence. One complaint charged him with failure to

mediate disputes among the faculty effectively. His

opponents also claimed that he had not helped to improve the

college's financial condition, pointing to his departure for

Europe just as a major capital campaign was getting underway

in connection with the college's 1921 centennial. There may

have been some truth to the latter charge, as Meiklejohn saw

himself as Amherst's intellectual leader only, preferring to

leave the squiring of wealthy benefactors around campus to

others.86

By the beginning of Commencement Week 1923, what little

trustee support Meiklejohn had enjoyed for the last few

years had eroded. On the day before commencement, he was

informed that the trustees had decided to ask him to

relinquish his administrative position. At the same time,

the board expressed its desire that he remain on the

faculty, suggesting that he stay on as professor of logic

and metaphysics. Meiklejohn, however, decided that he

couldn't turn over administrative authority to someone else

and also remain on the faculty, because to do so would both

cripple curricular reform and control classroom discussions.


85 Id.

86 Id.






58
In the wee hours of the following morning, Tuesday, June 19,

1923, he resigned as both president and professor.87

By forcing Meiklejohn's resignation, the trustees had

hoped that harmony would be restored to campus, but that was

not to be. At commencement, 12 seniors and one master's

candidate refused their diplomas." Six members of the

29-member faculty announced their resignations, and within

weeks three more also left.89 Older members of the faculty

were mollified, however, when the trustees named Olds, now

almost seventy years old, to be the next president.

In the weeks that followed, as Meiklejohn and his

family packed their things and prepared to leave for New

York City, expressions of support appeared in both the mail

and the press. Former President of the United States

Woodrow Wilson, who had been president of Princeton from

1902-1910, wrote Meiklejohn to assure him of "the utter

contempt that all thinking men must entertain for the

benighted trustees of the college you are leaving and to

which they have now given so fatal a wound."90 Although

Wilson had left Princeton more than a dozen years earlier

under different circumstances, the former president saw a



87 Id. at 6.

a "Turmoil at Amherst Commencement," Springfield
Republican, May 26, 1923, 8.
89 "Nine Faculty Resignations at Amherst," Springfield
Republican, June 29, 1923, 6.

SLetter to Meiklejohn, June 25, 1923, Amherst College
Archives, Amherst, MA, Box 10, Folder 2.








similarity when he wrote again two weeks later: "I had,

myself, the unhappy experience of having to deal with one of

the most ignorant and prejudiced groups in the country, and

am saddened by the every thought of the present situation of

my alma mater."91

Other comments from friends in academia focused on what

they now perceived as Amherst's newly restored reputation,

formed during the Meiklejohn years. Roscoe Pound, then dean

of Harvard Law School, was quoted by a friend:

Amherst has sent us regularly, for the past five
or six years, a little group of men who have stood
absolutely at the head of the Law School. Their
prominence has been all out of proportion to their
numbers. How the miracle has been wrought, I
don't know, but they are sending us men who know
how to think.9

Praise for Meiklejohn's accomplishment in the press

were only a bit less complimentary. Walter Lippmann wrote

that Amherst under Meiklejohn "produced as remarkable a

student body as I have ever encountered."93 Felix

Frankfurter, also a law professor at Harvard, made a similar

assessment: "For several years it has been generally assumed

that a recent Amherst graduate might be expected to display






91 Letter to Meiklejohn, July 5, 1923, Amherst College
Archives, Amherst, MA, Box 10, Folder 2.
92 Sperry, Willard L., letter to Meiklejohn, July 2,
1923, Amherst College Archives, Amherst, MA, Box 10, Folder
3.

3 Lippmann, Walter, "The Fall of President Meiklejohn,"
New York World, June 24, 1923, 3.








an unusual measure of intellectual vigor, of personal and

moral distinction.""

Nor was Meiklejohn's impact on education soon

forgotten. Robert M. Hutchins, who assumed the presidency

of the University of Chicago a few years after Meiklejohn

left Amherst once noted, "The Meiklejohn men up and down the

country are readily identifiable. This is not because they

agree but because they think."95

Meiklejohn decided that he needed a chance to think

more himself, and rented an apartment in New York City as a

base from which to write and lecture. His wife, debilitated

from an undiagnosed illness, sailed for Italy, her parents'

homeland, with her elderly mother and seven-year-old

daughter.

Meiklejohn immediately set about assembling some of the

speeches and essays he had written while at Amherst and

published them in late 1923 as Freedom and the College. He

also lectured to large audiences in New York City's most

famous fora, including Carnegie Hall. Lecture fees and

freelance writing for popular magazines were the main

sources of income for Meiklejohn for the next two years. An

article that Meiklejohn wrote for Century magazine on his

education theories so captivated its editor, Glenn Frank,


94 Frankfurter, Felix, "An Open Letter to Dwight
Morrow," The New Republic (July 25, 1923), 221. Morrow was
Meiklejohn's chief antagonist on Amherst's Board of
Trustees.

95 Quoted by Harold Taylor in "The Art of Making People
Think," New York Times Magazine, May 5, 1957, 20.








that he set up a committee to examine the possibility of

establishing a new college to implement them.6 Later that

year, Roscoe Pound considered, but ultimately declined, the

presidency of the University of Wisconsin. The search

committee next approached Frank, who accepted. Even before

he took office, the former editor offered Meiklejohn a

professorship, setting the stage for the next step in

Meiklejohn's long career in forming and testing educational

theories.

































W Meiklejohn, Alexander, "A New College, Notes on the
Next Step in Higher Education," 109 Century (January 1925),
312-20.














CHAPTER III
EXPERIMENTAL EDUCATION:
MADISON AND SAN FRANCISCO, 1927-1942


Introduction

At Amherst College, Alexander Meiklejohn had attempted

to implement his ideas about what a college education should

be by trying to impose his theories on a college community

that was nearly 100 years old. Amherst's Congregationalist

traditions did not yield easily to reformist theories of

education, however, and eventually the college's trustees

had bowed to pressure from a powerful group of alumni and

senior faculty and forced Meiklejohn to resign the

presidency.

Although it was a grave disappointment, Meiklejohn's

failure to shape the Amherst curriculum to fit his vision of

education did not dissuade him from continuing to pursue his

goal of creating a humanities-based college program. From

his new base in New York City, Meiklejohn began to

formulate a college curriculum based on the Great Books. In

March 1924, some eight months after arriving in the city

from Amherst, Meiklejohn previewed his curriculum in a








speech to the American Library Association.' After making

additional refinements, Meiklejohn traveled to Connecticut

the following year and presented his college course plan to

a conference of educators.2 The plan Meiklejohn described

in both speeches called for a curricular tabula rasa for the

new program, not a group of courses that would be revamped

piecemeal or adjusted to fit an existing academic framework.

President-elect Glenn Frank's offer of a professorship

at the University of Wisconsin earlier that year was

attractive, but Meiklejohn did not accept immediately. His

wife, Nannine, had died of cancer in February 1925, leaving

him with four children--the oldest still in high school. At

53, such a move would be a major undertaking, and one that

Meiklejohn was reluctant to assume, so he declined the

offer.

Just after New Year's 1926, Frank wrote to Meiklejohn

again with the information that convinced him to accept and

set the course for the next phase of the professor's life.

Frank had secured the approval of the University's governors

for the establishment of an experimental program and a

commitment of financial support, if Meiklejohn would agree




1 Titled "The Return to the Book," the address was
reprinted in American Ideas About Adult Education, 1710-
1951, C. Hartley Grattan, ed., New York: Columbia University
Press (1959), 124-28.

2 Titled "The College of the Future," Meiklejohn's 1925
address was reprinted in The Intercollegiate Parley on
American College Education, Middletown, Conn.: Wesleyan
University Press (1926), 11-13.








to direct it.3 Within two months, Meiklejohn and his

children were in Madison, and he was teaching a philosophy

course while planning the program that would be known as the

Experimental College. Finally, Meiklejohn had what had

eluded him at Amherst--a free hand to design, from the

ground up, an educational program that reflected what he

conceived as the ideal college curriculum.

Shaping the Experimental College

The faculty and administration of the University's

College of Letters and Science gave Meiklejohn and his staff

considerable latitude in the basic structure of the

Experimental College. Apart from a requirement that

students be permitted to take one course elsewhere in the

university each year (to satisfy university-wide language

requirements) there were no other impositions from outside

the College. Even grade requirements were eliminated,

except for the one grade given at the end of the two-year

program. This grade was recorded for all credits at the

College and, if satisfactory, allowed students to complete

their last two years at Madison.4

In place of traditional courses and subjects, one

common curriculum was developed with a general theme for


3 Glenn Frank to Meiklejohn, Jan. 3, 1926, Meiklejohn
Papers, Wisconsin State Historical Society, Madison, Box 13,
Folder 19.


4 Annual Report of the Experimental College, 1928, xii,
Experimental College Collection, University of Wisconsin
Archives, Madison.








each of the two years. There were, of course, no electives.

The first year's study revolved around a core of readings,

talks and discussion of the civilization of fifth century

B.C. Athens. The reading list included philosophers such as

Aristotle, Plutarch and Plato, historians including

Herodotus and Thucydides, the plays of Sophocles and the

political writings of the statesman Pericles. Toward the

end of the year, each student studied one aspect of Greek

life of his choosing in depth, picking from philosophy,

economics, art, religion, science, literature, law and

politics.5

In the second year, the class studied American society

and institutions beginning just after ratification of the

Bill of Rights. Broad topics included science, literature,

politics and philosophy. The contrasts between Athenian and

American society formed the foundation of discussions and

served as a starting point for a social scientific study

conducted by each student of his home state or region.

Readings included Other People's Money and How the Banks Use

It, by Louis D. Brandeis and The Acquisitive Society, by

Meiklejohn's friend, R.H. Tawney.6

Meiklejohn also brought with him the "Social and

Economic Institutions" course that he had developed at

Amherst and made it part of the second-year curriculum. The



5 Id. at 8-10.

6 Id. at 14-6.






66
course included a study of the American judicial system and

had been taught at Amherst primarily by economics professor

Walton Hamilton. Meiklejohn was, by his own admission, a

legal neophyte at the time, and recalled years later that

the law segment of the course had been Hamilton's idea.

According to Meiklejohn, Hamilton arrived at his office one

day and announced:

I don't think I want to teach much about economics
anymore. I think I can get more for myself and my
students if I study the Supreme Court. I just
wanted to find out if you had any objections. I
was a thoroughly uneducated young person and
didn't know what he was talking about. But of
course, it came from "Hammy" so it was alright and
I encouraged him to go on. But at the same time I
got the suggestion too that it was desirable to
study the Supreme Court justices and I think that
was the beginning of my start. But I didn't do
much with it myself for quite a number of years.7

Though an insignificant part of Meiklejohn's Amherst

experience, Hamilton's success in folding law into the

institutions course was quickly grasped by Meiklejohn, and

he was moving to expand the use of law studies in the

curriculum in his final months at Amherst. Describing

himself as an "observer only" in the field,8 he had hired a

lawyer, Thomas Reed Powell, to teach, not a traditional law

course, but a course in law for seniors, just before he was

asked to resign by the trustees. Powell declined his





7 "The Supreme Court as History," Side 1, Reel 2,
(undated audio tape) Center for the Study of Democratic
Institutions, Santa Barbara, Calif.
8 -








appointment when Meiklejohn was forced out, and plans for

law study at Amherst were derailed.9

Although Meiklejohn had still not had any exposure to

law as an academic discipline by the time he arrived in

Madison, his brief encounter at Amherst had apparently

convinced him of its value. In his design of the

Experimental College curriculum, law occupied a prominent

place in the second year of study. Though Meiklejohn would

come to disagree strongly with him, Zechariah Chafee, Jr.'s

Free Speech in the United States, was prominent on the

reading list. The Collected Legal Papers of Oliver Wendell

Holmes, Jr. and Mr. Justice Holmes and the Constitution, by

Felix Frankfurter, were also on the list.10 For the Spring

Term, 1932, the last for the Experimental College,

Meiklejohn also included a selection of 12 cases for study

and discussion." The dozen chosen, obscure business cases

from the previous 20 years, are not constitutionally

significant, but appear to have been selected more for their








9 Wofford, Harris, ed. Embers of the World:
Conversations with Scott Buchanan, Santa Barbara, Calif.:
Center for the Study of Democratic Institutions (1970), 47.
10 Memo headed "Readings for Law," Aug. 8, 1927,
University of Wisconsin Archives, Experimental College
Collection, Madison, Box 40 Folder 7.

11 Meiklejohn, Alexander, The Experimental College, New
York: Harper Brothers (1932), Appendix IV, student
assignments, Jan. 11-16, 1932.






68

symbolic value of the power of big business and the role it

played in pre-Depression American life.12

With the major components of Meiklejohn's "Athens-

America" curriculum in place as Meiklejohn directed, the

College opened in the fall of 1927 with a class of 119.13

The program was run by a faculty of 12, including

Meiklejohn, who had hand-picked them. Three of the faculty,

or advisers as they were called, were ex-Amherst faculty.14

The advisers were constituted as a group of equals not

distinguished by academic rank and often taught in two-man

teams. In the classroom, students met with advisers in

groups of about 12, but attendance was not enforced to allow

for assessment of the students' self-discipline and

capabilities for self-motivation and direction.

Meiklejohn had hoped that the Experimental College

would appeal to a broad cross-section of students that would

mirror the larger University student body. A representative

student body was important because as an experiment,

application of the results to the university as a whole and

students generally was vital to the success of the project.



12 The cases chosen included: German Alliance Ins. Co.
v. Hale, 219 U.S. 307 (1910); Charles A. Ramsay Co. v.
Associated Bill Posters, 260 U.S. 501 (1922); A.B. Small Co.
v. American Sugar Refining Co., 267 U.S. 233 (1924).

13 Meiklejohn to Glenn Frank, Sept. 22, 1927, University
of Wisconsin Archives, Experimental College Collection,
Madison, Box 6, Folder 4.
14 Faculty contracts for 1927-28, dated July 1927,
University of Wisconsin Archives, Experimental College
Collection, Madison, Box 2, Folders 3 and 4.






69

Just before the Experimental College opened, he outlined his

hopes in a regional magazine:

We wish to experiment on the general run of
students. It seems to me that the vital social
question in American education today is not, "How
well can we do with specially qualified groups of
students?" but rather, "Can our young people as a
whole be liberally educated?" Must we accept the
aristocratic division of people into two classes,
one of which can be trained to understand while
the other is doomed by its own incapacity to
remain forever outside the field of intelligence?
Our scheme of government, our scheme of
morals, our scheme of social relations, is built,
or thinks itself built, upon the view that all
normal persons are capable of understanding. And
the schools of such a societal scheme are pledged
to develop that understanding if it can be done
our primary task is that of taking all types
of young people and discovering their powers.1
The Experimental College attracted a highly capable

student body, but one that did not track the demographics of

the University. Unfortunately for Meiklejohn's experiment,

the student body the Experimental College attracted was not

the "general run of students" that he needed to test the

validity of his educational theories. The students who

enrolled were better students, and more diverse, than the

average University student. Experimental College students

were from larger cities and towns, were more likely to be

from out-of-state and had higher college entrance

examination scores. They were also more frequently of

Jewish background, a statistic that increased during the

life of the program and later caused such concern that it

contributed indirectly to the downfall of the College.



15 Meiklejohn, Alexander, "Wisconsin's Experimental
College," Survey Graphic, (June 1927), 269-70.








During the first year, Jewish students comprised about 20

percent of the student body; by the last year, that

proportion had risen to about 40 percent. In the regular

university, between 10 and 15 percent were thought to be

Jewish.16

Even worse, to some minds, were the politics of some of

the advisers and Meiklejohn himself. Meiklejohn used one of

socialist labor historian R. H. Tawney's books in the

curriculum, and his connection with Tawney was well known as

a result of the Amherst controversies earlier in the decade.

His belief in co-operative ownership went back even further,

to his childhood. But Meiklejohn himself provoked political

conservatives in Madison shortly after arriving in 1927 when

he became a national vice-president of the League for

Industrial Democracy, an educational association formed in

1905 to promote the study of socialism in colleges and

universities. At least four of Meiklejohn's 11 faculty at

the Experimental College were also active in socialist

politics. Classics professor Walter Agard had been

president of the Amherst chapter of the League, when it was

still called the Intercollegiate Socialist Society, and was

still a member. Lucien Koch came from now-defunct

Commonwealth College in Arkansas, a socialist college

established to train the working class in politics, and




16 Bureau of Guidance and Research, University of
Wisconsin, Report on the Experimental College, 1932, 20.
University of Wisconsin Archives, Madison, Wisconsin.








returned there after the Experimental College closed. Two

others ran for city office on the Socialist ticket.'7

Socialism at Madison: A Brief History

Socialist thought and academic freedom had gone hand in

hand at the University of Wisconsin for nearly 40 years, and

although academic freedom had always triumphed over

conservative challenges, it had been given a rough time

along the way. The first controversy on the subject began

shortly after Charles Kendall Adams arrived in Madison from

Cornell University as the new president of the University in

1892. He immediately recruited Richard T. Ely, a political

economist from Johns Hopkins. Ely gradually abandoned

traditional laissez-faire doctrine and began to approach

economics as a means of improving human welfare.18 Within a

year, his speeches and other activities attracted the

attention of Oliver Wells, the state Superintendent of

Public Instruction and a member of the Board of Regents.

Wells became increasingly perturbed and convinced that Ely

was using his position to foment labor unrest in Wisconsin.

Unable to convince the Regents, he aired his charges in a

letter to The Nation, which claimed that Ely had assisted

union organizers and threatened to boycott a nonunion




17 Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley: Meiklejohn Civil Liberties Institute
(1981), 31-2.
18 Bowen, Ivan, An Informal History of Activist Thought
at Madison, Madison: Wing Press (1975), 16.








printing plant in Madison."1 A three-day hearing convened

on August 20 failed to substantiate the charges and resulted

in a report by the Regents which held "Whatever may be the

limitations which trammel inquiry elsewhere, we believe that

the great state University of Wisconsin should ever

encourage that continual sifting and winnowing by which

alone the truth can be found."20

However ringing that rhetoric, it did not mark the end

of criticism of professors on the grounds of unorthodox

political beliefs. After weathering his own problem, Ely

persuaded a young sociologist, Edward A. Ross, to join the

faculty in 1906. Ross was no stranger to controversy and

had already lost one faculty job due to the unpopularity of

his social views. He had been dismissed from Stanford

University in 1900 after a series of speeches in which he

had supported Socialist presidential candidate Eugene V.

Debs, the Pullman strikers and the free coinage of silver.

When he publicly advocated an end to immigration from Japan,

by military force if necessary, he was forced to resign by

Jane Lathrop Stanford, widow of the founder of the

university.21

Ross first ran into serious trouble at Wisconsin on the

eve of a visit to Madison by anarchist Emma Goldman in early



19 Wells, Oliver, "The College Anarchist," The Nation,
July 12, 1894, 27.

0 Quoted in Bowen, An Informal History, at 39.

21Id. at 59.








1910. A local woman had been stopped by police who found

her tearing down posters announcing Goldman's visit. Ross

mentioned the incident in one of his classes, stating his

opposition to anarchism and his support of free speech. He

also announced the time and location of Goldman's lecture,

which started a firestorm of protest in the local press.22

Later that year he again enraged the populace and raised

conservative hackles by arranging a lecture on education by

Parker Sercombe, better known at the time for his advocacy

of free love. Ross was censured, but a vigorous defense by

University president Charles Van Hise saved his job. The

Class of 1910 presented a plaque bearing the "untrammeled

inquiry" quotation as a class gift to the University in the

wake of the Ross affair. It was not accepted by the

University until 1912, and then was put into storage until

the class finally prevailed over the administration and it

was placed on the east portico wall of Bascomb Hall in

1915.23 Ross was named president of the American Civil

Liberties Union in the 1940s and became a friend of

Meiklejohn's. In 1927, Meiklejohn had been appointed one of

65 national committee members of the ACLU, a post he held

for the rest of his life.

Freedom of student speech, rather than faculty speech,

became an issue in the 1920s when the Regents issued a

statement of unqualified support for discussion of diverse


22 Id. at 63.

3Id. at 66-71.








viewpoints in the classroom, but put the use of university

facilities for student-arranged speakers under the control

of the president and the board. President Edward A. Birge,

a biologist, allowed a 1921 talk sponsored by the Social

Science Club by communist William Z. Foster in a university

auditorium, but refused the use of a room by sponsors of

radical socialist Scott Nearing later that year. The effect

of vigorous protests of that decision by student speech

advocates carried over into 1922 when author Upton Sinclair

came to campus to visit his student son and deliver a

speech.2

The End of the Experimental College

In addition to concern over the political sympathies of

some faculty members and the disproportionate size of the

Jewish contingent at the College, economics also hit the

Experimental College hard. The October 1929 stock market

crash occurred just two months into the College's third year

and threw all the other problems Meiklejohn and the College

were dealing with into stark relief. The following year,

the University doubled its tuition to offset investment

losses in the endowment portfolio, which exacerbated an

already declining rate of enrollment. The 119 students who

joined the College the first year proved to be the most in

the College's brief history. The next year's class dropped

sharply to 92, then to 79 in the third year. The fourth


24 Id. at 84.








year saw 74 new students enroll and only 70 began the

program in the fifth and final year.25

By 1930, the original hands-off approach of the

university toward the Experimental College had begun to

erode. George C. Sellery, Dean of the College of Letters

and Science and nominally Meiklejohn's direct superior,

began to insist on final exams in each of the College's

courses in return for his continued support. The advisers

of the Experimental College refused to alter the program.

Regular departmental faculty discovered that their salaries

were often lower than those of the advisers at the

Experimental College, where the budget came directly from

the president's office and was disbursed by Meiklejohn

alone. Sellery viewed this as an encroachment on his

territory.26 In early 1932, the College issued a report

asking for permission to expand the program, including a

recommendation that a group begin studying implementation of

the experiment for juniors and seniors. In April, the

Letters and Science faculty responded with a recommendation

that the freshman class for the Experimental College be

expanded to 200, almost double Meiklejohn's planned cap of

125, and that half the coursework each year be outside the





25 Unidentified handwritten memo headed "Enrollment,"
Box 40, Folder 2, University of Wisconsin Archives,
Experimental College Collection, Madison.

26 Brown, Alexander Meiklejohn: Teacher of Freedom, at








Experimental College. Again, the advisers rejected the

proposal.27

President Frank never came to Meiklejohn's defense,

realizing that he and the Experimental College had no broad-

based support within the University.8 New proposals for

the College's program drawn up by the advisers were referred

by the university administration to a newly created

committee. Members of the committee were never appointed

and the proposals were never acted upon. With plans for the

1932-1933 school year stalled, the Experimental College was

closed down in June 1932.

Once again, Meiklejohn, now sixty, was offered a chance

to stay on at the University as a part-time professor of

philosophy, and this time he accepted. That summer, the

Meiklejohns moved to Berkeley, California, and returned to

Madison for the fall semester each year until he "retired"

in 1938.29

Refining Theories of Education

The closing of the Experimental College did little to

dampen Meiklejohn's enthusiasm for the continuation of his

experiments in education. Taking a breather from the

stresses of academic administration, he began work on the

question of how to extend education to those whom he felt

needed it most. Gradually, he came to believe that those


27 Id. at 34.

28 Id. at 35.

SId. at 35.






77
outside the traditional college setting had both the ability

and the need for a liberal education. The task he set for

himself was to devise a plan of how to deliver it.

While still at the Experimental College, Meiklejohn had

been riled by the suggestion of Lehigh University Dean Max

McConn that 98 percent of young people could benefit only

from vocational and trade school teaching. Furthermore,

McConn estimated that only a quarter of the remaining two

percent were qualified to attend a scholar's institution.

Such suggestions struck directly at the heart of

Meiklejohn's educational philosophy, which he restated

plainly:

[Dean McConn] is ready to say that 99.5 percent of
our youth may be put aside as we set up the
agencies of higher liberal education. I am saying
that nobody knows as yet to how many minds liberal
teaching may profitably be extended. As I
understand the democratic program in education I
am eager to go on with it. Instead of
limiting their opportunities of higher liberal
education to two percent of our youth, I want to
find out how nearly we can attain to making them
available to all.3

Meiklejohn never abandoned that position. If anything,

it hardened and became more pointed as the years went by.

More than 30 years later, on his last visit to Amherst in

September 1960, a reporter for the campus magazine quoted

him on his views on who should go to college. "I don't

believe in the concept that some people are unfit for





30 Meiklejohn, Alexander, "Who Should Go to College?"
New Republic, Jan. 16, 1929, 319.








college education; college education should be so contrived

that it's fit for everybody."31

As he continued to refine his educational theories,

Meiklejohn's work became associated with a school of thought

in the 1930s that believed that a national consensus about

common political and social ideals was fading. The notion

that citizens should have a common base of understanding had

previously been championed in the late 19th Century by

educational innovators such as Irving Babbit and Albert Jay

Nock.3 Meiklejohn, working independently, shared a belief

with Robert Maynard Hutchins that the continued success of

the American system of government rests on the assumption

that citizens have an equal capacity for understanding

political issues that affect their daily lives.

Meiklejohn and Hutchins had met on a panel at a

conference on problems in education sometime in the early

1930s. The educators, who immediately found themselves in

agreement on the need to make college the place to learn

about the nation's political and social foundations,

continued their discussion on their return train trip to

Chicago. The two men identified the demise of shared values

and belief in abstract principles as the likely culprits.33


31 The Amherst Student, Oct. 31, 1960, 1, Amherst
College Archives, Amherst, Mass.
32 Rimmer, T. Walter, Innovators in Education, 1860-
1895, Philadelphia: Watson Street Publishers (1931), 206-14;
232-39.

3Robert M. Hutchins to Meiklejohn, April 17 (no year,
ca. 1931), Meiklejohn Papers, Box 15, Folder 20.








They blamed educators such as William James and John Dewey

and judges such as Oliver Wendell Holmes, Jr. who preached

the doctrines of pragmatism and legal realism, respectively.

They denounced those viewpoints as leading to the pervasive

belief that only expediency counts.

Much later, Meiklejohn assailed Dewey's pragmatism in

his 1942 book, Education Between Two Worlds.4 He denounced

Dewey for his earlier overemphasis of individuality and

liberty as justifications for achievement of self-

satisfaction without regard to society at large.35 In human

relations, Meiklejohn wrote, Dewey's pragmatism led people

to "ask not only 'Is it right?' but also 'Does it pay?'"3

Eventually, Meiklejohn concluded, "Does it pay?" became the

only question and materialism and love of self led people to

turn away from a sense of community that was harmful to

democracy.37

As an early proponent of legal realism, Holmes had

taken much the same approach as Dewey in his 1881 book, The

Common Law.38 As historian Edward A. Purcell, Jr. described

Holmes' belief, "Practical expedients necessitated by the



34 Meiklejohn, Alexander, Education Between Two Worlds,
New York: Harper and Bros. (1942).

35 Dewey, John, The Public and Its Problems, Denver:
Henry Holt and Co., (1927).

36 Meiklejohn, Education Between Two Worlds, at 66.

3Id.

38 Holmes, Jr., Oliver Wendell, The Common Law, Boston:
Little, Brown (1881).






80

needs and conflicts of human society were much more central

to the development of law than were any logical

propositions."39 Purcell also wrote that Holmes believed

moral principles formed no basis for law, which was only

"the incidence of the public force through the

instrumentality of the courts."40

Hutchins, a Yale law graduate and former dean of the

Law School who had become president of the University of

Chicago in 1929 at the age of 30, believed in educated

opinion achieved through disciplined thinking. Informed

opinion, he said, brings a depth of understanding not found

in opinion based on prejudice and immediate circumstance,

and develops distinct standards of good and bad that are not

possible to convey through pragmatism.41

Meiklejohn also believed in Hutchins' view of education

as society's savior, but he was much more specific about how

to achieve that goal. To Meiklejohn, a thorough education

would require a complete knowledge of the fundamentals of

democracy. He feared that without a radical transformation

of educational policy that would incorporate the study of

the philosophical underpinnings of American society,

ignorance would guide political and social decisions in the


39 Purcell, Jr., Edward A., "American Jurisprudence
Between the Wars: Legal Realism and the Crisis of Democratic
Theory," 75 American Historical Review 424,426 (1969).
40 Id.

41 Traub, Percival E., "Hutchins of Chicago," in
Colleges and Universities in the Great Depression, Lewis
Bennett, ed., St. Louis: Hart Bros. Press (1952), 49-51.








future. The study of the accumulated wisdom of human

thought would create an awareness of those foundations and

spur further study of the student's own place in that

philosophical tradition, Meiklejohn maintained, leading to

more sound political choices.'z

Both Meiklejohn and Hutchins urged curricular revisions

that emphasized the study of the Great Books, which they

identified as a collection of literature from history's most

prominent thinkers. They agreed that the set would be one

of about 100 volumes.43 They held that an individual could

not understand social criticism nor forge a coherent plan of

social action without them. As Dean of the Yale Law School,

Hutchins had abolished the case study method and at Chicago,

railed against the direct study of social problems as the

best way to prepare students to deal with them in later

life. Hutchins said that the best education "is a thorough

knowledge of the moral and political wisdom accumulated

through our intellectual history."44

Meiklejohn put a similar idea more specifically when he

described his concept of education for intelligent

participation in public life as a study of the basic




42 Meiklejohn, Alexander, What Does America Mean?, New
York: W.W. Norton (1935), 236.

43 Robert M. Hutchins to Meiklejohn, July 14, 1935,
Meiklejohn Papers, Box 15, Folder 20.

44 Hutchins, Robert M., "The Colleges and Public
Service," XXIV Bulletin of the Association of American
Colleges 33,35 (1938).








assumptions of the American style of government and social

order. The future of the country, he wrote

rests upon the issue as to whether or not we can
find ways of setting up over against our material
activity an intellectual and moral and aesthetic
insight, free enough and powerful enough to direct
it whither we will that it shall go.45

Hutchins believed that if students understood great

literature they would not only be able to understand the

need to contribute to societal improvement, but that their

appetite would be whetted to do so. They would be able to

contribute more than a simple operational response to a

problem they were faced with. The intellectual power they

had developed through study would let them fashion new

solutions to the new problems that a complex society

presented.

I shall not be attentive when you tell me that the
plan of general education I am about to present is
remote from real life, that real life is in
constant flux and change, and that education must
be in constant flux and change as well. I do not
deny that all things are in change we are so
impressed with scientific and technological
progress that we assume similar progress in every
field. .. Our erroneous notion of progress has
thrown the classics and the liberal arts out of
the curriculum, overemphasized the empirical
sciences, and made education the servant of any
contemporary movements in society, no matter how
superficial.46

Hutchins, who stirred up a string of controversies at

Chicago, including the abolition of intercollegiate



45 Meiklejohn, Alexander, "Educational Leadership in
America," Harper's Magazine, CLX (1930), 447.

Hutchins, Robert M., Higher Learning in America, New
Haven, Conn.: Yale University Press (1936), 64-5.






83

football, still managed a 22-year tenure as president of the

university from 1929 to 1951. However, he was never able to

implement his Great Books curriculum in the face of

organized faculty opposition.47 Hutchins was a trustee at

St. John's College in Annapolis, Maryland, in the 1950s'8

where Meiklejohn confidant and Amherst alumnus Scott

Buchanan and colleague Stringfellow Barr established a Great

Books program in 1937. Meiklejohn also served as a

consultant to the St. John's administration and for many

years spent a month each year on campus as both teacher and

critic.49

Why Education?

To Meiklejohn's way of thinking, a lack of acquaintance

with ideas leads to a debilitating fear of change and the

unknown born of that ignorance and a resultant inability to

make wise political choices. He was fond of saying, "to be

afraid of any idea is to be unfit for self-government."50




47 Traub, Hutchins of Chicago, at 57.

48 St. John's College Bulletins, 1953-1959, St. John's
College Library, Annapolis, Maryland.

49 Correspondence between Meiklejohn and Buchanan is
voluminous on the Great Books as well as other issues facing
St. John's College. Meiklejohn Papers, Box 6, Folders 16-
18.
50 Testimony before the U.S. Senate Committee on the
Judiciary, Subcommittee on Constitutional Rights. 84th
Congress, 2nd Sess., Nov. 14, 1955, 14. The quotation was
also attributed to Meiklejohn several years earlier in the
Communist newspaper Weekly People, vol. LIX, No. 33, Nov.
12, 1949, 4, and appears in many publications attributed to
him in a variety of contexts.






84

The concept of American government as a self-governing

democracy was a central organizing concept for Meiklejohn.

Through the power to vote, provided for in Article I,

Section 2 of the Constitution, Meiklejohn defined the people

as "electors" who selected representative government to do

their bidding.51 He characterized the American citizen as

both sovereign and subject, responsible for creating the

government that would act on his behalf in his and fellow

citizens' best interests. In a self-governing society,

Meiklejohn believed, participation is equivalent to

leadership. As equals in the political process, everyone

who participates in governing by voting is by definition

taking part in the leadership of the nation.52 Leadership

demands that the governors make the best choices, requiring

the ability to not only think, but think well, for decisions

were being made for the whole society. For support,

Meiklejohn drew heavily on Rousseau's concept of sovereignty

as a collective entity represented by itself.53 Meiklejohn

knew that not all who made up the sovereign could govern and

acknowledged that not everyone could hold high elective

office, but insisted that everyone should be able to make an

intelligent choice about who eventually does. In fact, the




51 Meiklejohn, Alexander, "Freedom to Hear and Freedom
to Judge," 10 Lawyers' Guild Review 26 (Spring 1950).
52 Id. at 29.

53 Rousseau, Jean Jacques, The Social Contract, trans.
Willmoore Kendall, Chicago: Henry Regnery Co. (1954), 33-34.






85
very success of democracy was dependent on success in civic

education, he wrote.54

Meiklejohn's sense of responsibility to society went

well beyond any concept of self-interest. That self-

interest might be served by intelligent political decision-

making was little more than an unintended consequence in his

view, for the same decision was affecting the lives of all

other members of the society as well. From that larger

sphere of responsibility, Meiklejohn drew a considerably

more stringent view of the need for intelligence as applied

to political and social questions. Meiklejohn did not

believe that freedom was a given, but that it required

attention and hard work in order to preserve it. Part of

that hard work was becoming sufficiently acquainted with

democratic government to help direct it. That conception of

the people's relationship with the government led him to

observe that since "freedom depends upon intelligence,

intelligence is therefore a duty,"55 infusing the political

and social life of all Americans of voting age with a sense

of obligation.

Meiklejohn's linkage of duty and education for the

common good of the social group first appeared in public

through his speeches and writings in the 1930s but actually


54 Meiklejohn, Alexander, "Teacher, Teach Thyself," 2
Adult Education Journal (July 1943), 128.

55 Meiklejohn, Alexander, "The Crisis in American
Institutions," Harris Lecutures, Northwestern University,
Chicago, 1934, Lecture No. 5, p.3, Meiklejohn Papers, Box
35, Folder 1.








dated from at least as far back as his years as dean at

Brown. Then, as now, the question of cutting classes loomed

large. Meiklejohn favored restricting the number of

unexcused absences, but not out of concern that the student

would miss valuable material. Rather he feared that the

absence of the better students, who perhaps did not need to

attend class as regularly as others, would diminish the

learning experience of the entire class. In one of his last

reports as dean, he argued for tight restrictions on

skipping class: "My own feeling is that for the sake of the

common weal, we must restrict the freedom of the individual

and especially we must limit the good student whose goodness

makes him valuable to us."56

Meiklejohn took that duty to learn a step further,

adding the idea that there was a duty to learn the American

way, in his 1942 book, Education Between Two Worlds.

Learning the American way, however, did not mean learning

only the American viewpoint. For Meiklejohn, a significant

part of the American system of government was its tolerance

of alternative viewpoints. Meiklejohn thought that

democracy would be served best by exposing students to

several ways of looking at government. By evaluating the

individual merits of each and posing questions that required

students to support their positions, he thought he could



56 Meiklejohn, Alexander, "Report of the Dean of the
University," in Annual Report of the President to the
Corporation of Brown University, 1911, Providence, R.I.:
Brown University, 1911, 34-5.







87
illustrate the important lesson of tolerance of dissent and

reinforce the point that democracy is anti-authoritarian.

The language he chose to make that point, however, "the

purpose of all teaching is to express the cultural authority

of the group by which the teaching is given,"57 drew the

wrath of New York University professor Sidney Hook, a long-

time antagonist. In his review of the book in The Nation,

Hook described Meiklejohn's treatise on education as a "Mein

Kampf," a stinging indictment, especially coming at the

zenith of Nazi Germany's success.58 It was perhaps that

allusion that also led Charles J. Cooper, in his 1967

dissertation, to describe Meiklejohn as an "educational

dictator."59

In 1943, Meiklejohn's formulation of education for

collective action resulting from collective will for the

common good was certainly not seen as resourceful self-help.

Conservatives such as Hook were quick to interpret state

action as totalitarianism, overlooking Meiklejohn's

description of the state as an amalgamation of its citizens

making decisions for themselves, rather than having

decisions imposed on them. In Hook's eyes, Meiklejohn's

combination of education and duty bespoke an unbending



57 Meiklejohn, Education Between Two Worlds, at 91.

58 Hook, Sidney, "Education for the New Order," The
Nation, Feb. 27, 1943, 312.

59 Cooper, Charles J., Alexander Meiklejohn: Absolutes
of Intelligence in Political and Constitutional Theory,
(Ph.D. dissertation., Bryn Mawr College, 1967), 56.








authoritarianism that was suspected of prescribing a

particular educational agenda. Fortunately, Hook wrote,

that plan had been "shipwrecked in the processes of

democracy. "60

In describing his hierarchy of citizens' rights and

obligations, Meiklejohn highlights the contradictions

between the state and individual rights and blames the

widely accepted theories of John Locke for the frictions

between them. Central to the resolution of the problem,

Meiklejohn believed, was a rejection of the concept of

natural law.

Locke drew a strict distinction between the state and

the people, regarding them as separate entities. He based

that view on the idea that government is strictly a human

invention, while people were divine creations. As creatures

of God, Locke taught that the rights of man were also handed

down by God, and put into effect via reason, another divine

gift, while the rights of the manmade state were whatever

man decided to endow it with. Thus, in any conflict between

them, man's rights can claim superiority over the needs of

the state, which represents the larger community.61 It was

here that Meiklejohn saw the tyranny of the Lockean

approach. Meiklejohn said Locke's analysis allowed the

unfettered pursuit of trade and life in general as part of a


60 Hook, at 312.

61 Locke, John, Two Treatises of Government, Peter
Laslett, ed., Cambridge: Cambridge University Press (1988),
107-09.








laissez-faire attitude toward man's striving for material

things for personal enjoyment. For Meiklejohn, it was a

short step to a similar attitude toward education, which,

without supervision, would also be directed toward selfish

ends.62

Meiklejohn denied the two-tiered assignment of rights

based on whether they were held by man or the state. He

viewed both the state and individual rights as created by

the people, and not God. Meiklejohn refused to place man's

rights above the state's, claiming that they only existed at

the sufferance of the state, and were co-equal with the

state's own rights.

The Constitution does not mention a king, or any
superior authority. All authority there is
in the Constitution belongs to the people
except as the people give it to someone else .
there is no mention of God in the document. This
is a purely political document6

Meiklejohn found authority for his position in the

writings of the French political philosopher Jean Jacques

Rousseau. Rousseau believed that society was antecedent to

any rights, and since society was a human invention, so were

the rights that could not but flow from it. The social

contract of Rousseau's book of the same name was not to

protect individual rights, but to enable people to live as

part of a community. The contract was a contribution by



6 Meiklejohn, Education Between Two Worlds, at 132-34.

6 Meiklejohn, Alexander, "Liberty and Loyalty,"
American Friends Society Conference, San Francisco, 1952,
Meiklejohn Papers, Box 37, Folder 2.








"each of us [to] the common pool, and under the sovereign

control of the general will, his person and all his

power."16

Meiklejohn's blending of social, political and

educational theory illustrated his belief in the symbiotic

relationship of society, government and education. As equal

participants in government in their role as electors-and

governors, citizens acted in service to society by

responding to its needs. Not the least of those needs is

intelligent decision-making, so Meiklejohn believed that a

plan to ensure that citizens understood their role and the

issues facing democracy was appropriate and necessary.

Meiklejohn made liberal use of the other of Rousseau's

major writings in the formation of his educational theory.

He argued that freedom of thought in education is an

important social value, in that it allowed a wide-ranging

exploration of competing ideas. In Education Between Two

Worlds, Meiklejohn argued against teaching for its own sake

and education without direction as pointless intellectual

exercise. Freedom of education without control of some sort

by some authority would accomplish nothing that would be

useful to citizen-governors.

No student of education has provided more
carefully than did Rousseau in Emile, for the
deliberate guidance of the life of a growing





6 Rousseau, Jean Jacques, The Social Contract, trans.
Willmoore Kendall, Chicago: Henry Regnery Co. (1954), 20.








individual, so that it may conform to the
authoritative will of society.65

A few pages later, Meiklejohn re-emphasized his view of

the importance of freedom in education wielded for the

benefit of society, again invoking the central point of

Emile:

As we teach a young person it is not enough to
teach him to "be himself." We must teach him to
"be himself in an organized society." To
comprehend the mingling of individual freedom and
social authority which that statement intends
is the task to which Rousseau has summoned
us.

Secure in his belief that education was vital to a

successful democracy, Meiklejohn looked again toward the

type of institution that would let him continue his mission

of "teaching for intelligence," his term for teaching

critical thinking.67 He was dedicated to keeping the Great

Books approach he had begun to work out at the Experimental

College and continue his interest in law as a means of

social understanding.

Meikleiohn Turns to Adult Education

When Meiklejohn arrived in California in 1932, at the

age of sixty, he wasn't looking toward retirement, but

toward another way to implement his vision of what education



65 Meiklejohn, Education Between Two Worlds, at 75.

SId. at 95.

67 Meiklejohn, Alexander, "The Teaching of Self-
Government," 1956-57. Unpublished manuscript, p. 11.
Meiklejohn Papers, Box 38, Folder 1. The manuscript was
designed as a guide to establishing a program of adult
education.




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AGREEMENT_INFO ACCOUNT UF PROJECT UFDC
FILES


THE PROFESSOR, FREEDOM AND THE COURT:
ALEXANDER MEIKLEJOHN AND THE FIRST AMENDMENT
BY
PAUL HENRY GATES, JR.
A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
1996

Copyright 1996
by
Paul Henry Gates, Jr.

ACKNOWLEDGMENTS
As a doctoral student, I considered and rejected a
number of dissertation topics before settling, relatively
late in my program, on the teaching life of Alexander
Meiklejohn. I had brought considerable legal experience to
my studies, so there was little doubt that law would figure
prominently in the dissertation, but I also wanted a strong
historical component. Meiklejohn's name had popped up
frequently in my readings on mass communication in
connection with First Amendment scholarship during the
middle years of the 20th Century. The references were
invariably sketchy, however, and within a few paragraphs, he
was gone.
Not until the next-to-last semester of my coursework
did I really "meet" Meiklejohn. I was planning a career in
academia and was researching a paper on academic
institutions and their teaching missions as part of a course
in Mass Communication Teaching. I was, myself, the product
of a liberal arts college as an undergraduate, so small
liberal arts programs became the focus of my work.
And there was Meiklejohn again. I discovered that he
was not a lawyer, but a philosophy professor who had become
president of Amherst College at the age of 40 and didn't
iii

begin to study law until he "retired" from teaching at the
age of 70. From then on, I immersed myself in Meiklejohn's
books on college teaching and began to see a connection
between his philosophy of education and the First Amendment
interpretation I had seen frequently in other courses.
Meiklejohn held my attention for weeks, and when attention
turned to admiration, I realized I'd found my topic. It is
particularly fitting that the professor who introduced us,
Dr. Julie Dodd, is herself a dedicated teacher. My thanks
only begin to convey my gratitude to Julie for the
opportunity to discover Meiklejohn the man and the
professor.
Special thanks are due, of course, to my doctoral
committee, especially my supervisor and mentor, Dr. Bill
Chamberlin, who, though 592 miles away, was always available
to me when I needed editorial guidance and reassurance that
I could actually complete this project.
The other members of my committee, Dr. Bill McKeen, Dr.
John Wright, Prof. Gus Burns and Prof. Laurence Alexander,
each deserve thanks, not only for their work on this
dissertation but for what they added to my UF experience.
Their unique individual contributions to my education made
them ideal committee members, and I thank them for so
readily agreeing to work with me.
Any undertaking of this magnitude also requires a
supportive family, and I have that in abundance in my
iv

parents, Barbara and Paul, who were always keen to hear of
my progress on "that paper." Their encouragement of my
education has not been confined to this most recent
undertaking, however, but goes back some 40 years, and has
added more to my life than they can imagine.
Thanks also go to my good friend and colleague, Matt
Bunker, who was always at the other end of the phone line or
e-mail with a heartening word and a quick answer when I was
stuck.
With the end now in sight, my deepest thanks go to my
wife, Diane, whose unwavering love, patience and support
from beginning to end made the entire program possible and
kept me going when my own resolve occasionally flagged.
v

TABLE OF CONTENTS
ACKNOWLEDGMENTS iii
ABSTRACT viii
CHAPTERS
I INTRODUCTION 1
Research Question 2
Meiklejohn, Academic Freedom and the First
Amendment 3
Literature Review 14
Methodology 18
Outline of the Study 20
II TRADITIONAL EDUCATION:
BROWN AND AMHERST, 1897-1923 21
The Making of a Scholar 21
The Roots of Controversy at Amherst 37
Meiklejohn and Academic Freedom 45
Meiklejohn's Fall From Grace 54
III EXPERIMENTAL EDUCATION:
MADISON AND SAN FRANCISCO, 1927-1942 62
Introduction 62
Shaping the Experimental College 64
Socialism at Madison: A Brief History 71
The End of the Experimental College 74
Refining Theories of Education 76
Why Education? 83
Meiklejohn Turns to Adult Education 91
Meiklejohn Turns to the Law 97
IV MEIKLEJOHN'S DEVELOPING INTEREST IN LAW:
BERKELEY, 1942-1955 101
Introduction ..... 101
Meiklejohn and Felix Frankfurter 103
Meiklejohn and Holmes: Logic v. Realism .... 109
Meiklejohn, the Stromberg Opinion and its
Antecedents 116
vi

Meiklejohn Takes on Chafee—and Vice Versa . . . 128
Meiklejohn's Constitutional Sources 138
Why Free Speech? 141
Meiklejohn's Limits on Free Speech 145
Meiklejohn and Broadcasting as Lesser Speech . . 159
Communism, Free Speech and World War II .... 162
The Harvard Crimson Debate 177
Meiklejohn and Chafee's Last Meeting 182
V MEIKLEJOHN'S THEORIES AND THE SUPREME COURT . . 187
Introduction 187
Meiklejohn, Black and Douglas 189
Meiklejohn and Douglas 205
Meiklejohn's Mark on the Court 213
Politics and the Interpretation of
Meiklejohn229
VI MEIKLEJOHN EXTENDED: LEGACY AND LESSONS
FOR THE 21st CENTURY 231
Introduction 231
Meiklejohn's Contribution 235
Back to Education 237
Access for Education 242
An Affirmative Role for the First Amendment . . 261
Meiklejohn's Legacy 266
REFERENCES 2 68
BIOGRAPHICAL SKETCH 281
vii

Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy
THE PROFESSOR, FREEDOM AND THE COURT:
ALEXANDER MEIKLEJOHN AND THE FIRST AMENDMENT
By
Paul Henry Gates, Jr.
December 1996
Chairman: William F. Chamberlin
Major Department: Journalism and Communications
Alexander Meiklejohn (1872-1964) believed that the
primary goal of a liberal education was to prepare citizens
to participate in the American form of democratic
government. The philosophy professor and former college
president emphasized that the nation's Founders had intended
that voters retain ultimate control of the government they
had selected to represent them. He also believed that
effective and informed political involvement required an
acquaintance with the best thinkers in such diverse areas as
politics, philosophy, history, economics and law.
Meiklejohn brought the experience of more than 40
years of college teaching to the study of the First
Amendment after retiring from the classroom in 1942. His
academic career included concurrent teaching and
administrative responsibilities at several institutions. He
viii

was a dean at Brown University, president of Amherst
College, director of the Experimental College at the
University of Wisconsin-Madison and the director of the San
Francisco School for Social Studies, a second experimental
program he developed for adult students.
Meiklejohn viewed the First Amendment as the primary
means of ensuring that a variety of viewpoints were
represented in the public debate. Although the global
political climate after the Second World War often made his
liberal viewpoints unpopular, he consistently promoted his
belief that freedom of thought and expression on the wide
range of political and social issues faced by society was
the most certain way to preserve the American system of
self-government.
His views gained considerable support among several
justices of the United States Supreme Court during the 1960s
and his influence is detectable in the Court's opinions in
such landmark cases as New York Times Co. v. Sullivan and
Red Lion Broadcasting Co. v. Federal Communications
Toward the end of his life, Meiklejohn encouraged
federal and state governments to use the First Amendment to
actively promote the enlargement of the public sphere of
information available to voters, a recommendation that has
considerable currency for a nation preparing to grapple with
the problems and challenges of the 21st Century.
IX

CHAPTER I
INTRODUCTION
With the 1948 publication of Free Speech and Its
Relation to Self-Government, a philosophical treatise on the
meaning of the First Amendment, Alexander Meiklejohn burst
onto the constitutional scene, seemingly from nowhere, but
espousing a carefully thought-out philosophy of free
expression. Joining an illustrious group of mass
communications thinkers that included Walter Lippmann, A.J.
Leibling and Zechariah Chafee, Jr., Meiklejohn published his
book just as the anti-Communist fervor that followed the
post-war Soviet domination of Eastern Europe was reaching
fever pitch. In a Cold War climate that had many seeing
threats to democracy around every corner, Meiklejohn stepped
into the maelstrom with the view that speech about the
conduct of government should enjoy near-absolute protection.
Meiklejohn, however, was no Young Turk seeking to make
a name for himself with controversial new ideas. Retired
ten years from a 41-year career as a philosophy professor
and college president, Meiklejohn had already spent a
lifetime examining the role of critical thinking in
education and the importance of academic freedom to the
achievement of that goal. At seventy-six, with most of his
contemporaries long gone from the academic scene, Meiklejohn
1

2
embarked on yet another career of championing the value of
the dissident voice to a strong democracy. Building on the
experience of philosophical training that stretched back
into the 19th Century, Meiklejohn helped guide the American
Civil Liberties Union, testified before Congress and wrote
and lectured on the First Amendment for another 18 years.
Active and alert, and within two months of his ninety-third
birthday, Meiklejohn was planning a letter to the Board of
Regents about student protests at the University of
California at Berkeley when he died on December 16, 1964.
Meiklejohn, who was not a lawyer, nonetheless
influenced thinking at the United States Supreme Court for
more than 30 years. Free Speech was first cited by the
justices three years after publication, and 16 more times
over the next 32 years. Others of his First Amendment
writings were cited another nine times, and his work was
widely discussed among the justices in several more cases.
Research Question
Meiklejohn's influence at the Court in individual cases
is briefly noted in a vast range of work on freedom of
expression. However, no effort has been made to synthesize
the role his work played in shaping a unified First
Amendment view among some members of the Court. The genesis
of Meiklejohn's First Amendment philosophy as influenced by
the earlier periods of his life, when he wrote at some
length on academic freedom, remains unexplored. Writers
have yet to show how the extension of his teaching career

3
into the realm of free expression was part of a logical
intellectual evolutionary process.
These gaps in the commentary on Meiklejohn provide the
opportunity to create a more complete picture of his
contributions as a First Amendment theorist through research
on the following questions: How did Meiklejohn's career in
higher education as a professor and administrator influence
his interest in and views on free expression after he
retired? What impact did Meiklejohn's writings have on
First Amendment jurisprudence at the United States Supreme
Court during the years between roughly 1950 and 1980?
The first portion of this study will be limited in
scope to a study of Meiklejohn's involvement with questions
of free expression during his academic career. The second
will focus on the refinement of those views after his
retirement and their more narrow application to the
citizen-government relationship.
Meiklejohn. Academic Freedom and the First Amendment
Meiklejohn's life was one of almost exclusively
academic pursuits. After college he went directly to
graduate school, and after receiving his doctorate, went
into teaching. He taught philosophy from 1897 until his
retirement in 1938, and occasionally thereafter. Even
during his years as Dean of Brown University and President
of Amherst College, he was never far from the classroom,
teaching an undergraduate course in logic at least one
semester each year.

4
A former student recalled years later that Meiklejohn's
guiding principle as president of Amherst was that "it is
wrong to define the aims of liberal education in terms of
character or good citizenship, or religious faith, or
anything other than the goals of honest inquiry." It was
not that he found the other attributes unworthy, but
believed it most important that education be guided by
intellectual rigor. Following that premise, Meiklejohn
believed that in studying the theories of a particular
discipline, "we must make sure that they come under the
control of intelligence . . . [therefore] in college we
concentrate on the role of critical thought."1
Meiklejohn's doctrine on freedom of expression,
however, was not intended exclusively or even primarily to
protect the freedom of philosophical inquiry. It was,
instead, a political doctrine arising out of political needs
and designed to maintain and foster the freedom of political
inquiry and discussion during a complex period in history
that saw a dramatic shift and realignment of global power.
The remainder of this section of the chapter will
introduce some of the main points made in Meiklejohn's early
writing on the First Amendment. An overview of his First
Amendment philosophy, it will identify the broad themes he
considered most important for the guidance of American
Bixler, Julius Seelye, "Alexander Meiklejohn: the
Making of the Amherst Mind," 47 New England Quarterly 183
(1974). Bixler, a member of the Amherst Class of 1916, was
president of Colby College in Waterville, Maine.

5
democracy. Meiklejohn's writings during the last 15 years
of his life developed and amplified these early ideas in
critiques of contemporary Supreme Court decisions and are
examined in detail in Chapter IV.
Meiklejohn's best-known work on the freedom of
expression is Political Freedom: The Constitutional Powers
of the People, which appeared in 1960. It consists of two
distinct sections. Part One is, with minor adjustments, the
text of Free Speech, his 1948 book. Part Two is a
collection of speeches, letters and other papers written
between 1948 and 1958.
Meiklejohn viewed the First Amendment as an essential
component of self-government in a democratic system. In
Political Freedom, he wrote that the true meaning of the
"freedom of speech" protected by the First Amendment is
"public speech," which is a political freedom "valid only in
and for a society which is self-governing. It has no
political justification where men are governed without their
consent.1,2
Free people, who govern themselves, must not be
protected from hearing any idea on the ground that it is
unwise, unfair or dangerous, Meiklejohn wrote, because it is
they "who must pass judgment upon unwisdom, unfairness or
danger." Preventing "acquaintance with information or
opinion or doubt or disbelief or criticism" that is relevant
2 Meiklejohn, Alexander, Political Freedom: The
Constitutional Powers of the People, New York: Harper &
Bros. (1960), 84.

6
to any public matter they must act on is to impede the
judgment of the body politic. "It is that mutilation of the
thinking process of the community against which the First
Amendment to the Constitution is directed."3
The primary purpose of the First Amendment, according
to Meiklejohn, is to protect public speech about matters of
public interest. "It was written to clear the way for
thinking which serves the general welfare."4 Meiklejohn
opposed any official effort to limit discussion of matters
bearing on the common interests of society or pass judgment
on the value of the ideas expressed. "Any such suppression
of ideas about the common good, the First Amendment condemns
with its absolute disapproval. The freedom of ideas shall
not be abridged."5
Meiklejohn thought the First Amendment's protection
absolute because it serves a critical public need. "Free
men need the truth as they need nothing else."6 However,
the only truth with any value and validity "is that which we
win for ourselves in the give and take of public discussion
and decision. What we think together at any time is, for
us, our truth at that time."7 The First Amendment thus
3 Id. at 27.
4 Id. at 42.
5 Id. at 28.
6 Id. at 59.
7
Id. at 73.

7
serves as "a device for the sharing of whatever truth has
been won."8
In Meiklejohn's view, the First Amendment both protects
speech absolutely and limits its scope. Both the protection
and the limitation stem from the public's need for truth.
"The guarantee given by the First Amendment ... is assured
only to speech which bears, directly or indirectly, upon
issues with which voters have to deal—only, therefore, to
the consideration of matters of public interest."9
Meiklejohn was never critical of the slightly vague
nature of the text of the First Amendment, but instead took
the philosopher's logical approach to interpreting the 45
words of the amendment.10 He approached the task of
interpretation from the standpoint of procedural efficiency
for the exchange of ideas about the conduct of government.
Giving the First Amendment a literal reading,
Meiklejohn wrote that the article did not forbid the
abridging of speech, but did forbid the abridging of the
freedom of speech. The freedom of speech, which is
inviolate, he argued, is "freedom of discussion for those
minds" that are engaged in the business of deciding "matters
8 Id. at 75.
9 Id. at 79.
10 U.S. CONST., Art. I, reads, "Congress shall make no
law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances."

8
of public policy." He did not extend similar protection to
"unregulated talkativeness.""
Meiklejohn's interpretation of the First Amendment
clearly leaves many types of expression outside the
absolutely protected area but not completely without
constitutional guarantees. His theory posits that "under
the Constitution, there are two different freedoms of
speech, and, hence, two different guarantees of freedom
rather than only one."12 The first type of freedom is
extended to public discussion of "the common needs of all
the members" of the society, which have a "constitutional
status which no pursuit of an individual purpose can ever
claim."13 It therefore stands alone with full First
Amendment protection.
The second, and lesser, freedom takes in all other
types of expression, which Meiklejohn called "private
speech." He regarded private speech as personal to the
individual engaged in it, and conceded that the right was
considerable, but outside the purview of the First
Amendment. Meiklejohn likened private speech rights to the
right to life and property and found them similarly
protected by the Due Process Clause of the Fifth Amendment.
These lesser rights he differentiated from "freedoms" by
describing them as "liberties." Clothed in those terms,
11 Meiklejohn, Political Freedom, at 25-6.
12 Id. at 8.
13
Id. at 55.

9
Meiklejohn saw protection for speech "not from regulation,
but from undue regulation."14 Without absolute protection,
private speech becomes a relative right that may be abridged
upon a demonstration of a compelling public interest.
Meiklejohn's creation of a bifurcated view of speech
values has received little attention and even rarer
acceptance. The United States Supreme Court has never
resorted to a Fifth Amendment "liberty" construct to protect
speech,15 although it has, of course, "incorporated" the
First Amendment's protections against action by the states
through the Fourteenth Amendment's Due Process Clause. An
argument could be made, one that Meiklejohn would probably
have accepted as it follows his line of reasoning, that the
"liberty" protected by the original Fifth Amendment Due
Process Clause must also include a guarantee of freedom of
speech separate from and lesser than the First Amendment's
protection.
As a whole, however, the Court has fairly consistently
moved in exactly the opposite direction. To be sure,
14 Id. at 37.
15 U.S. CONST., Art. V, reads, in pertinent part, "No
person shall ... be deprived of life, liberty, or
property, without due process of law. ..."
Meiklejohn conceived of a "liberty" as a public
interest secondary in importance to a "freedom." As such,
he would allow regulation of that interest by the government
after established procedures were followed. The Court,
however, has not created such a two-tiered hierarchy of
rights, but has instead established levels of judicial
scrutiny and required varying degrees of evidentiary proof
from governmental entities seeking to enforce regulations
that implicate First Amendment freedoms.

10
individual justices such as Robert Jackson, Felix
Frankfurter, John Harlan and William Rehnquist, have
maintained that freedom of speech, when employed as a
defense against action by the states, should be less
strictly construed than when the federal government is
involved because of due process requirements.16 This
conception of due process, however, has been attempted only
as a justification for disparate jurisdictional treatment,
and even that argument has not found favor at the Court,
which has unwaveringly maintained that freedom of speech is
to be treated equally at both the state and federal levels.
Meiklejohn lamented this failure to differentiate
substantively between First Amendment speech and speech
protected under the Due Process Clauses of the Fifth and
Fourteenth Amendments. He disagreed with the Court's
refusal to accord differing substantive values to types of
speech because an interpretation which mandates the
inclusion of all speech under the First Amendment cheapens
the absolute freedom of public speech and leaves it "safe
only from undue abridgment.1,17 "Public discussion," he
wrote, "has thus been reduced to the same legal status as
private discussion."18
See, e.g., the vigorous dissenting opinion of Justice
Jackson in Douglas v. City of Jeannette. 319 U.S. 157, 181
(1943).
17 Meiklejohn, Political Freedom, at 54. (emphasis in
original).
18
Id. at 51.

11
Although the Court never accepted Meiklejohn's
separation of First and Fifth Amendment speech, he makes a
point that does not depend on that distinction. Different
types of expression serve different purposes and should be
granted different levels of constitutional protection.19 If
we cannot distinguish between speech protected under
different amendments, then we must examine the different
kinds of speech under the protections of the First Amendment
only. The inflexible position that all expression is equal
leads inevitably to either protecting everything absolutely
or relativizing protection under the same standards for all
types of expression.20
Meiklejohn refused to elevate commercial speech to the
level of political speech and extend absolute First
Amendment protection to it. "There are in the theory of the
Constitution, two radically different kinds of utterances.
The constitutional status of a merchant advertising his
wares, of a paid lobbyist fighting for the advantage of his
client, is utterly different from that of a citizen who is
planning for the general welfare."21 This was radically
different from the broad self-fulfillment value of speech,
which also included commercial speech, articulated by
Harvard law professor Zechariah Chafee, who found "an
individual interest, the need of many men to express their
19 Id.
20 Id.
at 37.
at 38.
21
Id. at 37.

12
opinions on matters vital to them" to be the controlling
principle.22 Meiklejohn would lump such comments of
singular interest together with commercial speech and other
forms of private speech and protect them through the Fifth
Amendment only. As he repeatedly stressed throughout his
writings, political speech is of paramount importance and
the value of political expression is primarily to the
audience rather than to the speaker who wishes to utter it,
and freedom of expression springs not from the desire to
speak, but from the need to hear.23 In Meiklejohn's
hierarchy of values, expression merely for its own sake
ranked low, and its sole justification was the support it
provided for higher forms of expression.
Meiklejohn took a dim view of the mass media,
particularly broadcasting, as the prime example of pervasive
commercial speech undeserving of protection at the level of
political speech. As speech unrelated to the business of
self-government, commercial radio fell into Meiklejohn's
broad catch-all category of private speech, that is speech
carried on for the benefit of the speaker. "The radio, as
we now have it," he wrote in 1948, "is not cultivating those
qualities of taste, of reasoned judgment, of integrity, of
loyalty, of mutual understanding upon which the enterprise
of self-government depends. On the contrary, it is a mighty
22 Chafee, Jr., Zechariah, Free Speech in the United
States, Cambridge, MA: Harvard University Press (1941), 33.
23 Meiklejohn, Political Freedom, at 24-7.

13
force for breaking them down."24 Ten years later, he added
that "privately sponsored television has proved to be even
more deadly. . . . [The broadcast media] corrupt both our
morals and our intelligence."25
In keeping with his position that political speech was
foremost among types of expression, Meiklejohn often called
attention to other recognized categories of speech that fell
short of that ideal to justify his two-level system of
protection. Meiklejohn pointed out that all speech is not
in fact treated equally, and that courts have recognized
that some forms are subject to controls ranging from
regulation to outright prohibition. "Thus libels,
blasphemies, attacks upon public morals or private
reputations have been held punishable.1,26 Meiklejohn
acknowledged that his list was only partial and included
other forms of speech such as incitement to violence and
endangering public safety. He emphasized the breadth of
punishable speech, writing that "this listing of legitimate
legislative abridgments of speech could be continued
indefinitely. Their number is legion."27
While carefully sketching out the categories of speech
he approved of prohibiting, Meiklejohn was unable to draw a
meaningful distinction between pure speech and speech mixed
24
Id.
at
87-8
25
Id.
at
xvi.
26
Id.
at
113.
27
Id.

14
with action. He ignored the possibility that the
accompanying action might be the dispositive factor in
judging speech instead of a judgment based solely on the
purpose of the expression. "Speech," he wrote, "as a form
of human action, is subject to regulation in exactly the
same way as is walking, or lighting a fire or shooting a
gun. To interpret the First Amendment as forbidding such
regulation is to so misconceive its meaning as to reduce it
to nonsense."28
Meiklejohn rejected the idea of a "balancing test" as
it would apply to First Amendment speech. He reasoned that
any weighing of competing social values would be meaningless
because of the overwhelming importance of First Amendment
speech, which he had limited to speech on public affairs.
The exchange of ideas on topics of political and social
import was speech without equal since it led to an
acquaintance with the information necessary for voters to
make an educated choice at the polls.25 He did, however,
accept such an ad hoc evaluation for lesser forms of speech,
since he believed that not all speech necessarily
contributed to the search for truth.
Literature Review
There is only one study of Meiklejohn that even begins
to approach the status of a biography. A 1981 book, which
excerpts Meiklejohn's major writings, particularly on
28 Id. at 114.
29
Id. at 19.

15
academic freedom from the earlier years of his career,
begins with a 47-page biographical sketch.30 That portion
of the book stresses Meiklejohn's teaching career as a
framework for introducing the excerpts from his
teaching-related writings, and is full of detail on the
earliest years of his life, but does not go into any depth
on Meiklejohn's philosophy.
Six dissertations have been written on Meiklejohn.
Three have concentrated heavily on his educational
theories.31 Two others focused on his theoretical concept
of the state.32 The dissertation most closely related to
this study, a 1979 work by Mack Redburn Palmer, touches on
both those areas and adds Meiklejohn's view of law to the
mix. It is a masterful attempt to reconcile some of the
inconsistencies in Meiklejohn's pronouncements and clarify
Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley, CA: Meiklejohn Civil Liberties
Institute, (1981).
31 Baldwin, Robert H., "A Quest for Unity: An Analysis
of the Educational Theories of Alexander Meiklejohn (Ph.D.
dissertation, University of Pittsburg, 1967); Shantz,
Hermione, "The Social and Educational Theory of Alexander
Meiklejohn (Ph.D. dissertation, Michigan State University,
1969) ; Green, James M., "Alexander Meiklejohn: Innovator in
Undergraduate Education (Ph.D. dissertation, University of
Michigan, 1970).
32 Cooper, Charles J., "Alexander Meiklejohn: Absolutes
of Intelligence in Political and Constitutional Theory,"
(Ph.D. dissertation, Bryn Mawr College, 1967); Perry,
Eugene, Alexander Meiklejohn and the Organic Theory of
Democracy," (Ph.D. dissertation, Syracuse University, 1969).

16
the positions that had subjected him to heavy criticism
during his lifetime.33
More than 30 years after his death, Meiklejohn is still
enormously popular as a source for law review authors, with
at least 550 citations to his written work in the last 15
years alone. There have been no articles devoted
exclusively to his philosophy in recent years, apart from
brief summaries of his books.
Legal scholars cite Meiklejohn frequently in civil
liberties treatises and occasionally devote short chapter
subsections to summarizing his arguments. Most often
Meiklejohn's views are mentioned by scholars in connection
with specific cases, some of whose written decisions
originally cited him.34 These discussions do not generally
delve into any understanding of Meiklejohn's writings beyond
their immediate application to the cases illustrated.
33 Palmer, Mack R. "The Qualified Absolute: Alexader
Meiklejohn and Freedom of Speech," (Ph.D. dissertation,
University of Wisconsin-Madison, 1979).
34 See, e.g., Krislov, Samuel, The Supreme Court and
Political Freedom, New York: Free Press (1968); Schauer,
Frederick, Free Speech and Its Philosophical Roots," in The
First Amendment: The Legacy of George Mason, T. Daniel
Shumate, ed., Fairfax, VA.: The George Mason University
Press (1985); Ladenson, Robert F., A Philosophy of Free
Expression, Totowa, NJ: Rowman & Littlefield (1983); Redish,
Martin H., Freedom of Expression: A Critical Analysis,
Charlottesville, VA.: The Michie Co. (1984); Haiman,
Franklyn S., "Speech Acts" and the First Amendment,
Carbondale, IL.: Southern Illinois University Press (1993);
Graber, Mark A., Transforming Free Speech: The Ambiguous
Legacy of Civil Libertarianism, Berkeley, CA: University of
California Press (1991).

17
Meiklejohn also often appears in media law texts and
casebooks, again in the company of other legal philosophers,
such as Chafee, with whom he is often paired and compared.35
They are, again, only as comprehensive and analytical as
four- to five-page summaries can be.
Meiklejohn and his views generally appear in chapters
on First Amendment philosophy and comprise but a small
portion of the broad sweep that those chapters make. In
spite of widespread mention in current literature,
Meiklejohn is presented, without exception, as one of
several relatively minor figures from the past. His ideas
are acknowledged as having some application to today's
issues, but are discounted as having never enjoyed broad
support.
Although Meiklejohn's theories were never explicitly
embraced by a majority of the justices, his adherents did
occupy pivotal positions on the Court. His ideas were cited
repeatedly to temper more reactionary views at the Court and
provided a liberal counterweight to McCarthyite sentiments
that were common in the post-war period. As voices from
35 See, e.g., Pember, Don R., Mass Media Law, Dubuque,
IA: Wm. C. Brown Publishers, 5th ed. (1990); Middleton, Kent
R. and Chamberlin, Bill F., The Law of Public Communication,
White Plains, NY: Longman, 3rd ed., (1994); Holsinger, Ralph
L., Media Law, New York: McGraw-Hill, Inc., 2nd ed. (1991);
Nelson, Harold L.; Teeter, Dwight L. and LeDuc, Don R., Law
of Mass Communications, Westbury, NY: Foundation Press, 6th
ed., (1989); Carter, T. Barton; Franklin, Marc A. and
Wright, Jay B., The First Amendment and the Fourth Estate,
Westbury, NY: Foundation Press, 5th ed. (1991); Franklin,
Marc A., Mass Media Law, Mineóla, NY: Foundation Press, 2nd
ed. (1982).

18
the political right become increasingly strident in the
mid-1990s, Meiklejohn's moderating influence may hold
valuable lessons for keeping diverse viewpoints in
circulation for the benefit of our ongoing experiment in
democracy.
Methodology
In addition to the published writing of Meiklejohn,
this study is based primarily on archival collections
located in four cities across the country. The relatively
few writings about Meiklejohn, which appear most frequently
as eulogies in academic and professional journals, will be
consulted as secondary sources.
The first, and smallest, collection is located at Brown
University in Providence, Rhode Island. In Meiklejohn's
home state, he was a professor and Dean at Brown for 15
years. While the collection of Meiklejohn's personal papers
is small, the archives do contain a wealth of material
concerning his role at the university during the formative
years of his career.
The oldest major collection is held in the archives of
Amherst College in Amherst, Massachusetts. Meiklejohn was
president of Amherst for 11 crucial and often controversial
years. Meiklejohn's Amherst materials are contained in 11
boxes of documents.
Two collections are held in Madison, Wisconsin, where
Meiklejohn headed the Experimental College at the University
of Wisconsin for five years. The largest of all, consisting

19
of 69 boxes, is at the State Historical Society of
Wisconsin. Meiklejohn's widow, Helen, chose the historical
society as the repository for his personal papers in 1969.
Before her own death in 1982, Mrs. Meiklejohn also made a
concerted effort to retrieve her late husband's letters to
his many correspondents and donated them to the historical
society as well. A second collection of 70 boxes, much of
which concerns Meiklejohn only peripherally, deals with the
administrative history of the Experimental College and is
housed in the University of Wisconsin Archives. It is,
however, a rich source of material on the curriculum of the
Experimental College and the practical application of
Meiklejohn's theories. The Experimental College's annual
reports, in particular, give an early glimpse of
Meiklejohn's recognition of the importance of an
understanding of law and the position of the Constitution as
a foundation of government.
The fourth collection is located at the Meiklejohn
Civil Liberties Institute in Berkeley, California, where
Meiklejohn "retired" in 1932. The Institute is a
freestanding private foundation with a small collection best
described as "eclectic," and housed in a converted
single-car garage. The modest three-box collection was
assembled largely from correspondence with private citizens
and other "fans" around the Bay Area who became acquainted
with Meiklejohn through his membership in the Northern

20
California chapter of the American Civil Liberties Union in
the 1940s and 1950s.
Outline of the Study
The next two chapters of this study will examine the
development and philosophy of Meiklejohn the educator.
Chapter II looks at his early years as both teacher and
administrator on the traditional campuses at Brown and
Amherst. He formed his theories on academic freedom during
this time and tried them out, with varying degrees of
success. Chapter III covers Meiklejohn's role in
experimental educational programs at the University of
Wisconsin and in San Francisco. He developed his theories
of freedom more fully here, and put them into actual
practice.
The last three chapters of the study are devoted to
Meiklejohn's thinking on the citizen-government
relationship, as specifically guided by the First Amendment.
Chapter IV explores Meiklejohn's interpretation of the First
Amendment, in all its varied facets and stages, to which he
devoted the last two decades of his life. Chapter V
examines the influence of Meiklejohn's theories at the
Supreme Court, where he found both supporters and detractors
among the justices, several of whom counted Meiklejohn among
their close friends. Chapter VI attempts to clarify
Meiklejohn's own brand of absolutism, assess his legacy to
the last years of the 20th Century and suggest some
applications for his ideas in the next century.

CHAPTER II
TRADITIONAL EDUCATION:
BROWN AND AMHERST, 1897-1923
The Making of a Scholar
Alexander Meiklejohn's beliefs attracted notice as
early as 1889, when, as valedictorian of the senior class at
Pawtucket(Rhode Island)High School, he argued in favor of
prohibition statutes.1 His remarks caught the attention of
the press, which summarized them briefly in a short account
of the graduation ceremony.2 Prohibition had been
controversial in the industrialized, working-class cities of
Rhode Island, but the state had become legally dry in 1887,
joining three of the five other New England states more than
30 years before Prohibition became the law of the land.
The youngest of eight boys and the only English-born
son of a Scottish textile craftsman, Meiklejohn had been
1 Meiklejohn's handwritten copy of the six-page Apr. 1,
1889 speech is held in the Alexander Meiklejohn Papers,
State Historical Society of Wisconsin, Madison, Box 60,
Folder 5. [Hereinafter referred to as Meiklejohn Papers.]
2 Unlabeled clipping, Meiklejohn Papers, Box 60, Folder
5.
3Vermont, New Hampshire and Rhode Island all were
declared dry between 1870 and 1887. Maine had been the
first state in the country to enact prohibition laws in the
United States in 1851. Brunelle, James E., ed., Maine
Almanac, Augusta, Me.: Guy Gannett Publishing Co. (1978),
11.
21

22
raised in a family that prized firmly-held beliefs. An
important feature of Meiklejohn's early home life in
Rochdale, England was the presence of workers who came by to
discuss grievances against the mill managers with his
father, James. The family was a member of the Rochdale
Cooperative, the world's first consumer cooperative
enterprise, which supplied shareholders with coal, food and
clothing at wholesale prices in exchange for a few hours of
labor weekly. As a result, Meiklejohn embraced the
principles of direct control over life's basic necessities
and participation in communal decision-making throughout his
life.4
In June 1880, when Alexander was eight years old, the
Meiklejohns were sent to Pawtucket by his father's
employers, where James taught the latest fabric dyeing
techniques to the workers in the company's Rhode Island
mill. At home, money was tight, so the family concentrated
on just a few books, studying the Bible and the poetry of
fellow Scot Robert Burns,5 which helped propel young Alex to
the top of his class in the Pawtucket public schools.
After high school, Meiklejohn enrolled at Brown
University in nearby Providence. He lived at home and,
according to university legend, often made the four-mile
4 "I'm an American," Script No. 65, Interview broadcast
by NBC on radio station WBZ in Boston, MA on Sunday, Aug.
10, 1941; Meiklejohn Papers, Box 35, Folder 3.
5
Id.

23
journey to classes on foot.6 An outstanding student,
Meiklejohn was elected to Phi Beta Kappa in his junior year.
Slightly built, and of only average height, Meiklejohn was
nevertheless also a versatile athlete and managed to find
time to play with the university's squash, soccer, tennis
and cricket clubs.7 As a graduate student at Brown, he was
also a member of the first intercollegiate ice hockey team,
and is credited in some circles with introducing the flat
puck in place of the round ball previously used in ice polo
following a vacation trip to Canada with the team.8
Meiklejohn, however, was never confident of his historic
role in the game. In 1951, writing in the university's
alumni magazine, Meiklejohn wrote that Harvard may have
played the Canadians first.9 Characteristically, he
neglected to mention that he had been captain of the team.
Meiklejohn, who was usually called Alex, but preferred
Alec, graduated from Brown in 1893 with a degree in
philosophy and stayed on to complete a master's degree two
years later. In 1896, when his mentor, James Seth, left to
join the faculty at Cornell University, Meiklejohn also left
for Ithaca, New York on a hockey scholarship. Completing
his Ph.D. dissertation on Immanuel Kant's theory of
6 "In Memoriam," Brown Daily Herald, Jan. 9, 1965, 6.
7 Id.
8 Evans, A.B., New England Hockey, Andover, MA:
Littleton Press, (1938), 12.
9 "Hockey Pioneers," Brown Alumni Monthly, (Spring
1951), 14-15.

24
substance10 in 1897, Meiklejohn returned to Brown as an
instructor. He climbed steadily up the academic ladder at
Brown, advancing to assistant professor in 1899, associate
in 1903 and full professor in 1906. In 1901, Meiklejohn
also assumed the responsibilities of the newly-created post
of Dean.11 When Meiklejohn returned from Cornell in 1897,
he was also elected to the Pawtucket School Committee, which
he served until 1903.12
Forming Educational Theories
In the classroom, Meiklejohn quickly acquired a
reputation as a tenacious questioner who constantly forced
students to think about their positions. He lectured
infrequently, preferring to pose questions of the students,
then challenging them to justify their responses. This
socratic style of teaching was not common outside of the
newly-established law schools at the turn of the century,
but Meiklejohn saw it as a method of involving the entire
class in the process of evaluating ideas, isolating awkward
or unworkable components, dissecting them and suggesting new
approaches to the problem.13
10 Green, James M., "Alexander Meiklejohn: Innovation in
Undergraduate Education," (Ph.D. dissertation, University of
Michigan, 1970), 59.
11 Bronson, Walter C., History of Brown University,
1764-1914, Providence: Brown University (1914), 481.
12 Letter to Brown classmate Fred Ladd, June 25, 1904.
Meiklejohn Civil Liberties Institute, Berkeley, Box 1,
Folder 8.
13 W. Randolph Burgess, "What Is Truth?" Rights XII
(February 1965), 29.

25
While his questioning style may have been effective in
class, it bedeviled his critics, particularly when he
continued to use it after leaving academia. He never
pretended to have ready solutions to all the problems he
identified, but viewed his often open-ended questions as
valuable contributions in and of themselves. Both in the
classroom and in discussion of public issues, Meiklejohn
above all intended that his questions inspire intellectual
debate rather than suggest complete answers. He believed
that answers would be discovered by the debaters themselves
as a result of this give-and-take, and answers developed
through that process were learned better than those he could
have suggested or imposed.14
As Dean, Meiklejohn also employed a strategy of letting
students work out their own solution as part of an athletics
reform plan to deal with a problem within one of the
university's teams. As baseball soared in popularity in the
late 19th Century, Brown built a reputation for one of the
most formidable college teams in New England. Athletic
conference rules forbade students who played in professional
leagues during the summer from playing on their college
teams, but competition was stiff and administrators honored
the rule mainly in the breach. Some of Brown's best
players, who had spent the summer of 1902 playing with
professional teams on Cape Cod, returned to Providence and
14
Id. at 28.

26
found themselves disqualified by decree of the Dean.15 The
move negated the team's championship, won the previous
spring, and infuriated some alumni.16
Meiklejohn pressed on, however, determined to return
Brown athletics to true amateur status. He took his
athletic reform plan another step and persuaded the faculty
to turn over full responsibility for athletic program
compliance to student managers, whom he believed would
succeed. The students did not let their dean down, and
before long, the Brown model of student oversight of
intercollegiate amateur athletics became the standard.
Gradually, Brown's teams returned to the top levels of
competitiveness and attendance at games recovered, then
eclipsed, previous numbers.17
For Meiklejohn, the crisis over how to handle the
university's athletic teams went far beyond the question of
professionalism in college sports. He regarded the issue as
a crucible to test his views on his students' ability to
make sound decisions. Meiklejohn proceeded from the belief
that, handed the authority to supervise athletics and faced
with the responsibility for the programs' eventual success
or failure, students would choose a course of action that
would maintain the university's trust in their abilities.
15 Report of the Dean to the President and Trustees,
1902-1903, Brown University Archives, Providence, RI, 20.
16 The university archives contain seven letters
protesting Meiklejohn's decision.
17 Bronson, History of Brown University, at 484-85.

27
The Dean had believed that the freedom to run the athletic
programs could not be taught successfully by rigid
enforcement of rules by administrators.18 When student
managers met to establish policy, they chose regulations
that were in the best interests and the teams and the
university and the administration continued its policy of
non-interference. Meiklejohn had decided that the way to
teach freedom was to grant it.
Testing Educational Theories
By 1911, Meiklejohn had acquired a solid regional
reputation as a firm, but popular, administrator and an
effective, but moderate, reformer. His accomplishments at
Brown attracted the attention of the trustees of Amherst
College, several of whom were Brown alumni. Amherst itself
had attracted notice in 1910, when a committee of members of
the Class of 1885 issued a report on the state of the
college. The group, which had formed at their 25th reunion,
believed that standards had slipped over the years and that
their alma mater was being left behind in the wake of
changes in higher education that had been underway since the
late 19th Century.
One of the problems the alumni report identified was
the size of the college, which the committee felt had grown
too big, abetted by low entrance standards. The group also
suggested a return to a rigidly classical curriculum,
elimination of the Bachelor of Science degree, hiring of
18
Id.

28
new, younger faculty from outside the college and an
emphasis on scholarship.19 When the trustees invited
Meiklejohn to visit Amherst during their search for a new
president, he had already read the report, and although he
"did not know where Amherst was," he admitted to a friend,
his interest was piqued. "Wouldn't you like to get ahold of
a college like that; wouldn't it mean something to make
those ideas clear and make them work?"20
Meiklejohn was offered that chance in May 1912 as
Amherst's eighth president. As rumors of the impending move
spread, letters poured in urging Meiklejohn to accept the
challenge he had identified. The letters were mainly from
his friends in academia, but also from Brown alumni such as
Charles Evans Hughes, Jr., editor of the Harvard Law Review,
who had apparently been one of the first to hear the news.
Another came from the Hew York Evening Post's city editor, a
Brown classmate and Theta Delta Chi fraternity brother who
pleaded for confirmation of the rumor, that he might scoop
the Amherst graduate who was his counterpart at the New York
Sun.21
19 Report of the Dean to the President and Trustees,
1902-1903, Brown University Archives, Providence, R.I.
20 "Some Addresses Delivered at Amherst College
Commencement Time, 1923," Alumni of Amherst College, 1924,
Amherst College Archives, Amherst, MA, 49.
21 Charles C. Selden to Meiklejohn, May 15, 1912,
Meiklejohn Papers, Box 2, Folder 14.

29
Amherst College had been founded in 1821 to educate
Protestant clergy.22 By the end of the century, the goal
had become a more general one of educating men. In the 20th
Century, major universities were changing their missions for
the new purpose of creating knowledge, but at Amherst,
Meiklejohn's purpose was to create an environment that would
encourage students to learn how to think. Just what
teaching thinking entailed was not clear to the college
community when the new, 40-year-old president arrived in
October 1912. Over the next 11 years, Meiklejohn would show
them, creating more of an interest in the college than the
trustees could imagine, or endure.
In his inaugural address, Meiklejohn served notice to
the Amherst College community that he would be an activist
president. His intention to make fundamental changes to a
college experience grounded in the classics was explicit:
"To give boys an intellectual grasp on human experience—
this, it seems to me, is the teacher's conception of the
chief function of the liberal college."23
Among the first changes instituted by Meiklejohn were
adjustments to the curriculum. By far the most
controversial was a freshman course called "Social and
Economic Institutions," designed by Meiklejohn to begin
22 Of the 40 members of the Class of 1834, 18 became
Congregational clergymen. Education at Amherst, Gail
Kennedy, ed., New York: Harper and Bros. (1955), 22.
23 Meiklejohn, Alexander, Inaugural Address of the
Eighth President of Amherst College, Oct. 16, 1912, Amherst
College Archives, Amherst, MA.

30
students1 thinking about the foundations of American
society. The course, which was popular with the students,
immediately came under fire from conservative faculty
members for its "vagueness of content and looseness of
method."24 The course weathered the attack and was taught
for many years thereafter.
Another of Meiklejohn's changes was a de-emphasis of
specialized courses. He was not against specialization but
thought it inappropriate for a college curriculum and best
pursued after completion of a liberal college education.
The intellectual road to success is longer and more
roundabout than any other, but they who are strong and
willing for the climbing are brought to higher levels
of achievement than they could possibly have attained
had they gone straight forward in the pathway of quick
returns.25
Meiklejohn admitted that students needed specialized
vocational training. He simply did not think that the
acquisition of such operational tools was a proper goal of
college. Vocational training provided none of the insight
necessary for informed discussion and decision-making on
basic political issues.
College teachers know that the world must have trained
workmen, skilled operatives, clever buyers and sellers,
efficient directors, resourceful manufacturers, able
lawyers, ministers, physicians and teachers. But it is
equally true that in order to do its own work, the
liberal college must leave the special and technical
training for these trades and professions to be done in
Green, James M., "Alexander Meiklejohn: Innovation in
Undergraduate Education," (Ph.D. dissertation, University of
Michigan, 1970), 145-46.
25 Meiklejohn, Alexander, Freedom and the College, New
York: Century Co. (1923), 170.

31
other schools and by other methods. In a word, the
liberal college does not pretend to give all the kinds
of teaching which a young man of college age may
profitably receive; it does not even claim to give all
the kinds of intellectual training which are worth
giving. It is committed to intellectual training of
the liberal type.26
Meiklejohn also opposed the proliferation of elective
courses listed in college catalogs. This late 19th Century
development was the invention of Charles W. Eliot, president
of Harvard University, and widely emulated among other
educators by the early 20th Century.27 Eliot, who was in
his day the most significant figure in American higher
education, did not impress Meiklejohn.
In my opinion it seems probable that the most important
fact connected with the development of the elective
system in America is that Charles William Eliot was a
chemist. So far as I know he is the greatest leader in
collegiate policy that America has had. But the modes
of thought of his powerful leadership are predominantly
the mechanical terms of chemical analysis. Those
terms, with all their values and all their limitations,
he for a long time fixed upon the academic thinking of
this country.28
About Eliot's system he added:
In a word, it seems to me that our willingness to allow
students to wander about in the college curriculum is
one of the most characteristic expressions of a certain
intellectual agnosticism, a kind of intellectual
Meiklejohn, Alexander, "The Aim of the Liberal
College", in Fulton, Maurice G., ed., College Life, New
York: Century Co. (1921), 34-35.
27 By 1894, the only required courses at Harvard
University were French or German, English Composition,
physics and chemistry. Pulliam, John D. and Van Patten,
James, History of Education in America, Englewood Cliffs,
N.J.: Prentice-Hall (6th ed. 1995), 97-98.
28 Meiklejohn, Freedom and the College, at 196.

32
bankruptcy, into which, in spite of all our wealth of
information, the spirit of the time has fallen.29
Meiklejohn pointed out this hazard because a college
did not have to inevitably fall into the same trap, he said.
A college could escape the fashionable system that he felt
was undermining the colleges' mission, "But I do not believe
that this result can be achieved without a radical reversal
of the college curriculum."30
Meiklejohn's "radical reversal" had begun with the
"Social and Economic Institutions" course, and continued
with his efforts to break the hold of the classics by
introducing additional concepts of modern thought through
courses in the fields of sociology, psychology, economics,
history and the natural sciences. Opposition to courses
that called into question the religious foundation of
education had been common in the late 19th Century, as
exemplified by the furor that accompanied John Fiske's
attempt to teach Charles Darwin's Origin of the Species at
Harvard University in I860.3' A similar attitude prevailed
at Amherst well into the 20th Century, where most of the
faculty were older men who were themselves graduates of
29 Id. at 178.
30 Id. at 188.
31 Gabel, Gerhard, Nineteenth Century Religious
Teachings at Private Colleges and Universities, Trumbull,
Conn.: F.E. King and Sons, (1925), 132-34.

33
Amherst and adherents of the college's Calvinist
traditions.32
One of Meiklejohn's major efforts at reform, and one of
his major defeats, was his suggestion that Amherst's
four-year college course emphasize the humanities and be
divided into two parts.33 Most strikingly, Meiklejohn's
proposal cut back considerably on courses in religion and
the classics, accelerating the trend that had already been
objected to by the Class of 1885. Although change was
already underway, a classical education was still the
typical academic foundation of small, private,
church-affiliated colleges.
Meiklejohn called the first two years' curriculum, a
rigidly defined collection of readings in philosophy,
history, economics and social science, the "junior college."
The second half of the bifurcated curriculum narrowed the
subject matter considerably. The coursework in the "senior
college" would not be limited to a single subject or become
technical or specialized but rather would rely on the
individual student's background and interests to form
connections with broader issues by drawing on the first two
years' readings in the humanities. The "senior college"
would end with a comprehensive test, based on the student's
32 Id. at 158.
33 Meiklejohn, Alexander, "How Shall We Teach?", Message
to the Board of Trustees, September 1919. Amherst College
Archives, Amherst, MA, Box 8, Folder 4.

34
own work and drawing its questions from the issues he had
examined in his own studies.34
Underlying Meiklejohn's educational plan was a
philosophy of human freedom based on enlightened choice. In
contrast with the traditional Bible-based approach to human
nature, the humanistic view espoused by Meiklejohn was
threatening to the old order. The humanities, as the new
type of curriculum came to be known, were studied in the
context of actual human social experience. Described as a
"vital and dynamic element in general education which must
be concerned with modern subjects,"35 a humanities
curriculum has four purposes: "[it] broadens learning,
stimulates imagination, kindles sympathy and inspires a
sense of human dignity."36
Meiklejohn was a fervent believer in the approach to
education contained in his proposal. He seemed aware that
the plan was a radical one but thought that it was worth
taking a chance and that a small college like Amherst was
the place to try it:
The real question as to such a plan is not "Is it
desirable?", but "Can it be made to work?" And
the question is not one to be evaded. But my own
conviction is very strong that the thing can be
done. I am certain that it ought to be tried. It
is better to see what can be accomplished along
34 Id.
35 Beesley, Patricia, The Revival of the Humanities in
America, New York: Columbia University Press (1940), 49.
36 Green, Theodore M., The Meaning of the Humanities,
Princeton, N.J.: Princeton University Press (1938), 42.

35
such a line than to wait ignobly for someone else
to make the attempt.37
The trustees, however, were not ready for such a
departure from what they perceived as a reasonably
progressive and modern curriculum that had been honed over
the previous 20 years or so and updated by the inclusion of
modern history courses.38 The trustees were especially
irritated by the fact that the proposal was accompanied by
Meiklejohn's assertion that even failure of his curriculum
to produce graduates capable of analytical thought was
preferable to not having even made the attempt: "A death
like that would be a noble ending, the sort of thing from
which many splendid enterprises have sprung."39 Here was a
fundamental difference between Meiklejohn and the trustees.
For Meiklejohn, educational progress was continual
evolution, an ongoing experiment; for Amherst's trustees and
older alumni, education was a tradition deeply connected to
the past. A rapidly changing technological society was
insufficient reason to change; perhaps even a reason to
proceed ever more slowly and cautiously.40 The trustees did
37 Meiklejohn, Alexander, The Liberal College, Boston:
Marshall Jones Co., (1920), 161. The Liberal College is a
collection of Meiklejohn's essays and speeches published by
Amherst as part of the college's 100th anniversary
celebration.
38 Id. at 160.
39 Id. at 161.
40 Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley, Calif.: Meiklejohn Civil Liberties
Institute (1981), 16,19.

36
manage to block Meiklejohn's plans for restructuring the
curriculum into the two-part program he envisioned.
However, he had sufficient support on the board to
establish, one or two at a time, most of the humanities
courses he wanted.
If Amherst was resistant to change, other colleges and
universities were not. From modest beginnings at Columbia
University as early as 1919, humanities-based curricula were
adopted by at least 11 colleges and universities between the
late 1920s and mid-l940s.41
Fifteen years after Meiklejohn's 1923 departure,
Amherst itself began to take steps toward strengthening the
humanities curriculum that Meiklejohn had begun. In 1938,
the seven-member Amherst Faculty Committee on Long-Range
Policy reported, "It is the function of the liberal college
to require at least an intelligent consideration of a few
fields of knowledge which the College, by the fact of its
teaching them, has marked as significant.1,42
Shoemaker, Francis, Aesthetic Experience and the
Humanities, New York: Columbia University Press (1943),
155-89. Humanities-oriented curricula adopted between the
late 1920s and the time of the Second World War: Stephens
College (1928); Scripps College (1928); Antioch College
(1930); Johns Hopkins University (1930); University of
Chicago (1931), under Meiklejohn's friend, Robert M.
Hutchins; University of Michigan (1932); University of
Minnesota (1932); Stanford University (1935); Princeton
University (1936); Columbia University (1937), under Jacques
Barzun; Mills College (1943).
42 Communication to the Curriculum Committee, Nov. 11,
1938. The report was signed by professors Ralph A. Beebe
and George B. Funnell. Amherst College Archives, Amherst,
MA.

37
By the mid-1940s, Meiklejohn's goal of a two-part,
humanities-oriented college curriculum at Amherst was a
reality, although the terminology was slightly different.
The "lower college" was designed as partly remedial and as a
general foundation for the last two years in the "upper
college." "These (lower college) courses should be both so
distributed and so related to one another that by the end of
the sophomore year the students will have accomplished two
things: they will have a common body of knowledge in each of
the three great fields of the curriculum43 and each will
have been able to make a significant beginning in work
preparatory to a major . . . [and] to be able to conclude
work for that major during the last two years."44 Major
requirements had also become more rigorous, increasing from
three to five year-long courses in the field.45
The Roots of Controversy at Amherst
Not all of the efforts to change the curriculum and the
controversies they engendered were of Meiklejohn's doing. A
deep philosophical split over the curriculum was evident
several months before Meiklejohn accepted the trustees'
offer of the presidency. Spurred by the 1910 report of the
Class of 1885, the debate over the future of the college
continued in the pages of the new alumni magazine.
43 Mathematics and Natural Sciences; Social Studies and
Philosophy; and Languages, Literature and the Arts.
44 Kennedy, Education at Amherst, 39.
45
Id. at 37.

38
Frederick J.E. Woodbridge, dean of the graduate faculty at
Columbia University, staked out one side's position in the
first issue. He attacked as spurious the theory that
education should foster the service or character ideal,
repudiated the concept of moral indoctrination and spoke out
plainly for intellectual values. The college experience
should be "the process of educating the emotions to act
rationally," he wrote46 He was bitterly challenged as
"un-Christian" in the next issue by Cornelius H. Patton,
Class of 1883, who wrote, "I have always understood that
Amherst stood for a spiritual philosophy as against mere
intellectualism.1,47
Agreement between the two alumni factions with the
original point in the 1910 report of the Class of 1885 that
something should be done to raise the level of teaching and
study obscured the fundamental issue of the future direction
of the college. The Woodbridge-Patton dispute, however,
illustrated the size of the gulf between the two groups.
Without some semblance of unity, any chance of realizing the
goal of an improved college was impossible. Meiklejohn was
perhaps doomed to fail even before he arrived.
As the trustees began to evaluate candidates for
president, the faculty communicated its feelings to the
board. Its brief message indicated that they preferred
George D. Olds, a senior mathematics professor who had been
46 1 Amherst Graduates' Quarterly, (October 1911), 21.
47 1 Amherst Graduates' Quarterly, (January 1912), 56.

39
on the faculty for more than 20 years.48 Losing sight of
the wishes of several of the groups within the college
community by concentrating exclusively on the need to
replace the retiring president, the trustees selected
Meiklejohn, antagonized the faculty and alienated a good
portion of the college's alumni who sympathized with Patton.
Meiklejohn did enjoy victories during his tenure such
as a more than doubling of the college's endowment, but
ultimately even one of his successes became a weapon to be
used against him. Meiklejohn had identified a gulf in
social science study between Europe, especially Great
Britain, and the United States and thought the differences
would create opportunities for discussion. Meiklejohn
instituted the practice of visiting lecturers and other
short-term appointments to bring distinguished scholars to
campus,49 a tradition that is followed to this day. One of
the first visiting scholars was R. H. Tawney, a British
labor historian with leftist leanings who arrived in the
spring of 1920. Other Meiklejohn-recruited lecturers who
spent several weeks to several months at Amherst were poet
William Butler Yeats, historian Charles Beard and labor
48 Letter to the Board of Trustees, Mar. 14, 1912,
Papers of President Julius Seelye, Amherst College Archives,
Amherst, MA. , Box 4, Folder 1.
49 Letter to the Board of Trustees, Oct. 2, 1919,
announcing plans to bring economist Ernest Baker to campus.
Amherst College Archives, Amhert, MA. Box 11, Folder 7.

40
economist Harold J. Laski.50 In the same vein, during the
last few months of his tenure, Meiklejohn was working to
create endowments to fund additional visiting lecturers in
literature, physics and philosophy.51
Meiklejohn created friction between campus factions by
attempting to alter the content of courses and classroom
methods, imposing texts and testing reguirements. These
maneuvers fostered resentment among senior faculty members
who uniformly viewed the moves as encroachments into their
academic freedom.52 Although Meiklejohn had been successful
in recruiting new faculty, most of Amherst's faculty had
been hired and tenured long before his inauguration. Even
some of the new faculty chafed under Meiklejohn's methods.
Future four-time Pulitzer Prize winning poet Robert Frost,
who had been hired by Meiklejohn in 1916, quit the faculty
in 1920 because of conflicts with the president, though he
Lipset, Seymour M. and Riesman, David, Education and
Politics at Harvard, Berkeley: Carnegie Commission on Higher
Education (1975), 140. Laski's appointment was a particular
source of rancor for Calvin Coolidge (Amherst 1895) because
of Laski's support of the 1919 Boston police strike. As
governor, Coolidge had broken the strike, a stand that was
at least partly responsible for his elevation to
vice-presidential candidate on the successful 1920
Republican ticket.
51 Meiklejohn, Alexander, "The Measure of a College," 12
Amherst Graduate's Quarterly, (February 1923), 90.
52 Partial letter to the Board of Trustees, Apr. 6,
1921, Amherst College Archives, Amherst, MA.

41
returned after Meiklejohn left.53 Chief among Frost's
complaints was Meiklejohn's attempt to reduce the number of
poetry courses offered by the English Department.54
A serious public squabble during Meiklejohn's tenure
has generally been interpreted in a manner that has put him
on the unpopular side of a patriotic issue. In late 1916,
when the First World War had been raging in Europe for more
than two years and the United States' April 1917 entry into
the conflict was only months away, Massachusetts Lt. Gov.
and Amherst alumnus Calvin Coolidge came to speak to a
"preparedness" group on campus.55 In keeping with his
position that all sides of issues be discussed, Meiklejohn
insisted that the anti-war point of view be represented at
the meeting as well. Alumni were outraged that Meiklejohn
remained completely neutral, but his position did not have
the feared effect of promoting unpatriotic sentiment on
campus.56 Meiklejohn also counseled his students to stay in
school as long as possible. When war was declared, however,
he told them they were obliged to serve when called.
53 Frost won the Pulitzer Prize for Poetry in 1924,
1931, 1937 and 1943. The Amherst College library, which was
built shortly after Frost died in 1963, is named in his
memory.
54 Robert Frost to the Board of Trustees, letter of
resignation, May 11, 1920, Amherst College Archives,
Amherst, MA.
55 "Lt. Gov. Tours Central Mass. Colleges," Springfield
Union, Nov. 14, 1916, 8.
56 Minutes, meeting of the Board of Trustees, Jan. 10,
1917, Amherst College Archives, Amherst, MA.

42
The policy of the Secretary of War seems to me
fundamentally right. All men within military age
should be classified as subject to call and the War
Department should be empowered to assign each man or
each group of men to the work in which they can be of
greatest service. Students should remain in college,
just as other men should remain in their employments
until the call to other service comes. Education is
vitally important but, like other important things, it
must and will give way so far as necessary in the
present emergency. All that men in charge of education
demand is that the interests involved be really
considered. In my judgment, the fewer the limitations
placed upon the discretion of the War Department, the
better will be the outcome.57
Far from being unpatriotic, Meiklejohn had spoken and
written on his position well before Coolidge's visit,
maintaining that serious study was a patriotic activity and
stressing the importance of education and the role of the
college in the war effort and beyond. In an address to the
Academy of Political Science on May 18, 1916, Meiklejohn
said that the United States' hope for military success as
well as integration of national life "lies in the
development of a Mind." He also argued that the mental
discipline needed for a soldier could be taught in liberal
arts colleges as well as in military schools.58
After the war, the college's attention focused on
athletics, and again, Meiklejohn was in the thick of the
Undated typewritten draft memo, Meiklejohn Papers,
Box 33, Folder 4. This short message, double-spaced and
edited in pencil, was probably written at about the time of
the November 1916 meeting. It appears to be a version
prepared for Meiklejohn to deliver orally, since it is
unfolded and his personal correspondence was not typed.
58 Meiklejohn's remarks were published as "A
Schoolmaster's View of Compulsory Military Training," in IV
School and Society 79 (July 1, 1916), 9-14.

43
fray. At first, the problem was the same as it had been at
Brown: students played on professional teams during the
summer and returned to college teams during the school year.
Again, Meiklejohn insisted that they were not eligible, and
again, the alumni howled. Meiklejohn also refused to hire
full-time professional coaches, instead pressing faculty
members into unpaid service and using part-timers from the
town. As a result, he was blamed directly for Amherst's
athletic decline.59 The issue came to a head at the
November 1922 Alumni Council meeting, at which the group
voted to send a message to Meiklejohn asking that he respond
to a question, not so different than might be asked at some
athletic powerhouses today: How are we to measure the worth
of Amherst if not in the generally recognized currency of
athletic prowess?
Meiklejohn answered politely, but characteristically:
When you look at our team on the field you will see
college students playing football, not football players
attending college in order to play. . . . You must
make up your team fairly and generously; you must play
to win; and then the victory will take care of itself.
If you win, you win. If you don't win somebody else
does. I don't know what more can be said.60
Meiklejohn's article on the subject of collegiate
athletics in the Atlantic Monthly put a national slant on
the problem that was debated in its pages for months. In
his article, the president followed the theme that he had
59 Malone, John E., "Ups and Downs on the Playing
Fields," Massachusetts College Athletics (Summer 1922), 33.
60 Meiklejohn, Alexander, "The Measure of a College," 12
Amherst Graduates' Quarterly (February 1923), 88.

44
developed at Brown. He reiterated his belief that sports,
responsibly organized and supervised, were an integral part
of education whose benefits inured primarily to the student
and not the college.
I believe in college education, but I do not believe in
furthering it by the abuse of the play of students. My
observation is that when the attempt is made we spoil
not only the play but the education.6'
In his private correspondence, however, Meiklejohn was far
less circumspect. In response to a letter congratulating
him on the position he staked out in the Atlantic article,
he showed his impatience with the issue with a touch of
pigue, writing, "... much of the alumni interpretation of
our situation is dull and stupid."62
Meiklejohn might have had a similar response to alumni
criticism of some of his visiting lecturers, especially the
British labor historian R. H. Tawney, who some suspected of
being a socialist. Indeed, he was, and Meiklejohn's embrace
of some of his views caused him to be tarred with the same
brush. For one thing, Meiklejohn organized classes for
members of labor unions in Holyoke and Springfield to the
south, in the mills along the Connecticut River.
Ironically, the unions distrusted the well-spoken
61 Meiklejohn, Alexander, "What Are College Games For?"
30 Atlantic Monthly (November 1922), 671.
62 Meiklejohn to Ephraim Emerton, Nov. 13, 1922, Amherst
College Archives, Amherst, MA, Box 10, Folder 13.

45
"professor," in the belief that the college would try to
inculcate capitalist values in the classroom.63
Conservative alumni had some difficulty with
Meiklejohn's commitment to exposing students to divergent
views on a variety of issues. The fathers of many of
Meiklejohn's students were wealthy capitalists who had sent
their sons to Amherst for safekeeping and polishing, not for
encouragement in questioning the foundations of capitalism.
Such critical thinking is often uncomfortable for those who
are criticized.
During the period of anti-socialist hysteria, an
alumnus asked Meiklejohn, "Would you have a bolshevik as a
professor?" The president's response, "I'd have anyone if
he were a good teacher," only served to increase
suspicions.64
One writer noted that, "One of the awkward results of
the years of liberal thought in Amherst College was that it
frequently made the sons of upper and middle class families
zealous to liberate those whom their fathers exploited.''65
Meiklejohn and Academic Freedom
In contrast to the relatively infrequent but
high-profile events involving questions of academic freedom
63 Meiklejohn, Alexander, "The Measure of a College,"
12 Amherst Graduates' Quarterly, (February 1923), 90.
66 Julius Seelye Bixler (Amherst 1916) , "The Meiklejohn
Affair," 25 Amherst (Spring 1973), 3.
65 Price, Lucien, Prophet Unawares: The Romance of an
Idea, New York: Century Co. (1924), 35-36.

46
that agitated alumni and were debated in the pages of
Amherst Graduates' Quarterly during the last half of his
tenure, Meiklejohn struggled largely unnoticed for most of
his tenure at Amherst with the more fundamental problem of
justifying the importance of academic freedom. Issues
involving academic freedom bubbled up periodically, but
usually as only part of another more gripping controversy,
such as socialists lecturing on campus, and was a constant
source of tension between Meiklejohn and the trustees. The
debate over the nature and extent of academic freedom was
conducted mainly out of public view in the pages of academic
administrators' journals, where Meiklejohn championed his
belief in unfettered classroom discussion from nearly the
beginning of his presidency.
Meiklejohn believed that the goal of a liberal
education was an agile mind, one that was able to analyze
often conflicting points of view and apply them to current
social and political problems. He believed that type of
academic experience required the freedom to explore ideas
and assumed that all points of view would be presented in
the classroom for evaluation by the student. Exclusion or
imposition of any point of view by college trustees or other
officials foreclosed the possibility of academic freedom and
was fatal to the process of education.
Meiklejohn's first mention of academic freedom at
Amherst appeared in his commencement remarks in 1914. The
speech was never published and probably did not circulate

47
far beyond the college community. In it, Meiklejohn lauded
academic freedom in the form of support for criticism of a
point of view guided by intellect. One sentence in
particular indicated clearly what the president had in mind
as Amherst's model teaching style and foreshadowed his
position on the matter for the rest of his academic career:
Ideas do not live and flourish when transplanted from
the soil of active search and opposition from which
they spring to that of passive unquestioning
acceptance. They soon lose their vigor and fade
away.66
The 1915 annual meeting of the Association of American
Colleges, less than three years into Meiklejohn's
presidency, marked the beginning of his plunge into the
contentious arena of debate over the nature and extent of
academic freedom. The first few years at Amherst had seen
no ferment on campus over academic freedom, as Meiklejohn
had done little to upset the status quo. The issue was not
a new one for academia, however, and in 1915 had been
wrestled with for at least 25 years, loosely tracking the
ebb and flow of the American labor movement that provided
much of the material for study in economics classes.67 In
1915, anarchy as preached by labor leaders was one of the
major evils perceived by the establishment to be threatening
the nation. Anarchist Emma Goldman had toured the nation
Unpublished speech (baccalaureate address), Amherst
College, June 21, 1914, 3. Meiklejohn Papers, Box 1, Folder
3.
67 Ericson, P.A., Economics: An Educational History,
Hartford, Conn.: Trimount Press (1951), 66.

48
earlier in the decade and drawn a large crowd in New York
City in 1914 at a rally with Bill Haywood of the
International Workers of the World. At the rally, Goldman
denounced government accommodation of business interests and
advocated unionization and workers' control of the means of
production. Many of Goldman's supporters, fretted the New
York Times, were "men of education and culture ... of that
class of 'intellectuals' to which Miss Goldman looks so
hopefully.,|68
Left-wing politics and academic freedom came up at the
Association of American College's meeting when formal
discussion turned to a report on administrative control of
classroom teaching submitted by a committee of the
Association of University Professors. The report, as
Meiklejohn described it, was primarily a litany of examples
of abuses of academic freedom from colleges and universities
around the country. The complaints ranged from inconvenient
scheduling and assignment to undesirable courses to denial
of tenure and dismissal on the basis of professors'
memberships and activities outside of class. Meiklejohn had
nominally been a member of the committee that drafted the
report, but had refused to sign the final product.
Meiklejohn believed that discussion of infractions of
academic freedom was futile and ineffective in helping to
preserve those freedoms unless faculties and administrations
68 New York Times, Mar. 29, 1914, 2, quoted in May,
Henry F., The End of American Innocence, New York: Alfred A.
Knopf (1959), 302.

49
understood what academic freedom was and why it was
important to the educational process and not just individual
faculty members. He regarded administrative meddling that
impinged on professors' freedoms as the enemy.69 In
Meiklejohn's analysis, the enemy was not an administration
that held to a conservative institutional viewpoint but an
administration that used its authority to wield that
viewpoint against a faculty by controlling classroom
activities through intimidation. One point the report made
that Meiklejohn did approve of was its recommendation that
faculty members be granted veto power to block
administration efforts to dismiss fellow professors on the
basis of unpopular views.
Meiklejohn said that the report, which approached the
issue of academic freedom from the standpoint of faculty
reappointment and dismissal, rather than course content, was
simply an attempt to protect faculty jobs rather than deal
with the underlying issue of protecting freedom for
students' benefit.70 The report, Meiklejohn conceded, was
strongly protective of faculty rights to free speech but was
too narrow and did not do enough to protect the educational
process.
69 Meiklejohn, Alexander, "Tenure of Office and Academic
Freedom," Proceedings oí the Association of American
Colleges, (April 1916) 182, 183. Meiklejohn's references to
and characterization of the AAUP report in the text of this
speech is the only published evidence of the content of that
document.
70
Id. at 184.

50
Even if Meiklejohn had agreed that concern with faculty
rights was of primary importance in the area of academic
freedom, the hiring process was a far easier way for
administrators to control a faculty than the painful
spectacle of dismissals, he said. He reminded the
convention that if the report's authors presupposed a
sinister attack on academic freedom by administrators, as he
believed they had, they had missed the point by focusing on
the security of existing faculty. He told them that if an
administration were truly bent on ferreting out potential
troublemakers, the better way to handle the matter quietly
would be to ask others about them during the hiring process
and ask the candidates directly during private interviews.
That, he said, would avoid the public clamor surrounding a
later dismissal.71
Meiklejohn had risked fanning the flames that could
destroy academic freedom by not only alluding to but
actually publicly outlining a clandestine method of
discriminating and selecting faculty with a conservative,
institutionally approved view on political and social
issues. He did so, though, to question the propriety of
point-of-view examination, its uses and abuses and its
relative weight in the faculty hiring process. The best
approach, Meiklejohn said, would be before hiring to settle
the question of whether a professor's views on subjects such
71
Id.

51
as socialism and labor reform movements are within the
proper scope of consideration by the administration.
Meiklejohn also took exception to another issue raised
in the report that, on its face, appeared to come down on
the side of faculty free speech. The report had expressed
concern that administrators would sacrifice academic freedom
to preserve financial support from wealthy alumni.
Meiklejohn took the report's authors to task for their
placement of faculty and administration in opposition to
each other over sources of financial support of the
institution. He chided them for falling prey to the
assumption that administrators would try to prohibit
discussion of controversial topics to avoid alienating
donors and protect the school's financial welfare.
Meiklejohn's solution to the potential conflict between
gifts and academic freedom was charmingly simple, if naive:
if it were truly believed that college administrators were
being bought off, the only honest answer to the dilemma
would be to not accept gifts. If administrators were
reluctant to turn down donations that had strings attached,
he saw no future for academic freedom.72
Meiklejohn tempered his drastic recommendation that
administrators eschew gifts, which must have shocked some
members of the audience, by imploring administrators to
avoid an overdependence on donations by reducing capital
spending. He urged that they be satisfied with the moderate
72
Id. at 185.

52
amount of funds available from existing endowments. He
asked them to resist the temptation to grow, which required
dependence on more money from outside the college to build
buildings, buy equipment and meet bigger payrolls. He urged
them to fix their attention on the things that were already
within their power such as quality of instruction, which
could be met from present budgets, if spending on the
physical plant were reduced. When spending was brought
under control so that obligations could be met from existing
funds, Meiklejohn said, pressure from interest groups
outside the college would be eliminated and there would be
no question about academic freedom.73
At the meeting Meiklejohn also took issue with the view
of another attendee that limitation of classroom discussion
of matters beyond reasonable controversy was proper.74
Rather than attempt to define what might be reasonable and
what might not be, Meiklejohn discussed the issue in terms
of people, not topics. On one hand, Meiklejohn admitted
that it would not make sense to discuss matters that are
unreasonable. But, he worried, how would that be
determined? He saw attempts to influence the topics that
could be handled by presumably intelligent teachers as
unjustifiable interference. Meiklejohn's educational goal
of developing critical thinking skills depended on a ready
pool of varying opinion. In his view, attempts to limit the
73 Id. at 185-87.
74 Meiklejohn, "Tenure of Office," at 180.

53
field of inquiry doomed his stated purpose of education.
There could be no middle ground; there could be but one test
for whether or not a matter were within the limits of
reasonable controversy: whatever reasonable people might be
in disagreement about is a matter of reasonable
controversy.75
During the discussion of what viewpoints were
acceptable for study, there was an assertion that it was not
fair to students to introduce them to problems that required
complex thinking. Meiklejohn handled the situation deftly
and eloquently:
As against this I protest that the one essentially
unfair procedure of an intellectual institution is to
represent to a student that he is being honestly and
fully introduced into the realm of thinking when he is
in reality being led by the nose to some fixed and
determined conclusion which, for some reason or other,
it is regarded as important for him to believe.76
In the spring of 1917, more than a year after the
conference, Meiklejohn received a letter from the president
of Cornell University, writing as the new president of the
American Association of University Professors,
congratulating him on his stand against the report's
conclusions.77 Archival materials contain no response from
colleagues, either favorable or unfavorable, from the
1915-16 period, however.
75 Id.
76 Id.
77 Letter to Meiklejohn from Frank Thilly, Mar. 17,
1917, Amherst College Archives, Amherst, MA, Box 6, Folder
9.

54
The gist of Meiklejohn's remarks at the Association
meeting were later contained in an Atlantic Monthly article
published in early 1918.78 His decision to air his views in
a popular magazine only added to the tensions with the
Amherst trustees,79 but his argument struck a chord with at
least one professor outside the Amherst College community.
Among the admirers of Meiklejohn's views was a professor
from Topeka who apparently wrote to describe difficulties he
and his colleagues were encountering with officials at
Washburn University. In response, Meiklejohn wrote: "I am
sorry to hear that you are engaged in a discussion of
academic freedom on your campus because that usually means
trouble is around."80
Meiklejohn's Fall From Grace
For the first seven or eight years at Amherst, the
trustees were willing to support Meiklejohn against the
criticism of alumni, but eventually they perceived that the
academic reputation of the college was declining among
78 Meiklejohn, Alexander, "The Freedom of the College,"
121 Atlantic Monthly (January 1918), 83.
79 George Plimpton to Meiklejohn, Mar. 4, 1918. "Your
recent publication is causing an erosion of support among
our members." Amherst College Archives, Box 28, Folder 1.
Plimpton, who was a personal friend of Meiklejohn, was also
chairman of the college's board of trustees from 1910-1926.
80 Meiklejohn to S.G. Hefelbower, Feb. 25, 1920, Amherst
College Archives, Amherst, MA, Box 6, Folder 9.

55
alumni and members of the public.81 They also became
uncomfortable with the scrutiny of the national press into
the continuing debates over college policies, and a majority
of the trustees decided they could no longer support
Meiklejohn and what they perceived as his more radical
decisions.82
The situation reached a critical point in late 1922
when two significant internal investigations were concluded
at about the same time, and taken together, their findings
did not augur well for the Meiklejohn administration. The
first investigation looked at Meiklejohn's finances and the
second, at faculty appointments.
Meiklejohn's finances were more of a public relations
disaster than a true scandal, and there was no indication of
any wrongdoing. The first investigation found that
Meiklejohn had wildly overspent his household budget, which
was funded by the trustees, and for some time the deficits
had been made up out of the pockets of individual members of
81 George Plimpton to Meiklejohn, Apr. 18, 1920,
"members are uncomfortable with questions about what is
happening at the College." Amherst College Archives,
Amherst, MA, Box 28, Folder 1.
82 In 1921, Plimpton informed Meiklejohn that he had
lost most of his support on the Board of Trustees.
Meiklejohn is said to have replied, "Then under the
circumstances it might be wise for the board to resign."
Donald Ramsey, "Old Amherst Sells Its Soul," Labor (date and
page unknown). From a partial tearsheet in the Meiklejohn
Papers, Box 40, Folder 4.

56
the board. As Robert Frost bluntly put it, "He didn't pay
his bills."83
Evidence seems to point to the second of the two
reports as being as much the product of an intensive
lobbying effort by older faculty opposed to Meiklejohn's
handling of a faculty promotion than of any real wrongdoing
on Meiklejohn's part.84 Much of the controversy involved
conflict between the older faculty who had been trained as
ministers and European-trained PhDs. Amherst had obviously
gone through wrenching changes from 1912 to 1922 during
Meiklejohn's tenure. Revision of the curriculum and
visiting socialist scholars were among the most prominent of
those changes. The newly popular humanistic approach to
academics in American colleges and universities created
friction and resentment among those who clung to the
literalistic and often Bible-based elements of the 19th
Century belief in education as indoctrination.
The primary thrust of the faculty appointment
investigation centered around Meiklejohn's role in promoting
a young instructor he believed held great promise. After
the president received approval from the trustees for his
plan, however, the senior faculty charged that he hadn't
fully represented the depth of their opposition to the
Quoted by Julius Seelye Bixler, (Amherst 1916) , in
"The Meiklejohn Affair," 25 Amherst, Spring 1973, 4. The
article re-evaluates the last months of Meiklejohn's tenure
on the 50th anniversary of his departure.
84 Id. at 5.

57
promotion. They charged that he put his own judgment first
and in effect gave himself sole decisionmaking power over
faculty affairs.85
The report also charged Meiklejohn with administrative
incompetence. One complaint charged him with failure to
mediate disputes among the faculty effectively. His
opponents also claimed that he had not helped to improve the
college's financial condition, pointing to his departure for
Europe just as a major capital campaign was getting underway
in connection with the college's 1921 centennial. There may
have been some truth to the latter charge, as Meiklejohn saw
himself as Amherst's intellectual leader only, preferring to
leave the squiring of wealthy benefactors around campus to
others.86
By the beginning of Commencement Week 1923, what little
trustee support Meiklejohn had enjoyed for the last few
years had eroded. On the day before commencement, he was
informed that the trustees had decided to ask him to
relinquish his administrative position. At the same time,
the board expressed its desire that he remain on the
faculty, suggesting that he stay on as professor of logic
and metaphysics. Meiklejohn, however, decided that he
couldn't turn over administrative authority to someone else
and also remain on the faculty, because to do so would both
cripple curricular reform and control classroom discussions.
85 Id.
86
Id.

58
In the wee hours of the following morning, Tuesday, June 19,
1923, he resigned as both president and professor.87
By forcing Meiklejohn's resignation, the trustees had
hoped that harmony would be restored to campus, but that was
not to be. At commencement, 12 seniors and one master's
candidate refused their diplomas.88 Six members of the
29-member faculty announced their resignations, and within
weeks three more also left.89 Older members of the faculty
were mollified, however, when the trustees named Olds, now
almost seventy years old, to be the next president.
In the weeks that followed, as Meiklejohn and his
family packed their things and prepared to leave for New
York City, expressions of support appeared in both the mail
and the press. Former President of the United States
Woodrow Wilson, who had been president of Princeton from
1902-1910, wrote Meiklejohn to assure him of "the utter
contempt that all thinking men must entertain for the
benighted trustees of the college you are leaving and to
which they have now given so fatal a wound."90 Although
Wilson had left Princeton more than a dozen years earlier
under different circumstances, the former president saw a
87 Id. at 6.
88 "Turmoil at Amherst Commencement," Springfield
Republican, May 26, 1923, 8.
89 "Nine Faculty Resignations at Amherst," Springfield
Republican, June 29, 1923, 6.
90 Letter to Meiklejohn, June 25, 1923, Amherst College
Archives, Amherst, MA, Box 10, Folder 2.

59
similarity when he wrote again two weeks later: "I had,
myself, the unhappy experience of having to deal with one of
the most ignorant and prejudiced groups in the country, and
am saddened by the every thought of the present situation of
my alma mater."91
Other comments from friends in academia focused on what
they now perceived as Amherst's newly restored reputation,
formed during the Meiklejohn years. Roscoe Pound, then dean
of Harvard Law School, was guoted by a friend:
Amherst has sent us regularly, for the past five
or six years, a little group of men who have stood
absolutely at the head of the Law School. Their
prominence has been all out of proportion to their
numbers. How the miracle has been wrought, I
don't know, but they are sending us men who know
how to think.92
Praise for Meiklejohn's accomplishment in the press
were only a bit less complimentary. Walter Lippmann wrote
that Amherst under Meiklejohn "produced as remarkable a
student body as I have ever encountered."93 Felix
Frankfurter, also a law professor at Harvard, made a similar
assessment: "For several years it has been generally assumed
that a recent Amherst graduate might be expected to display
91 Letter to Meiklejohn, July 5, 1923, Amherst College
Archives, Amherst, MA, Box 10, Folder 2.
92 Sperry, Willard L., letter to Meiklejohn, July 2,
1923, Amherst College Archives, Amherst, MA, Box 10, Folder
3.
93 Lippmann, Walter, "The Fall of President Meiklejohn,"
New York World, June 24, 1923, 3.

60
an unusual measure of intellectual vigor, of personal and
moral distinction.1,94
Nor was Meiklejohn's impact on education soon
forgotten. Robert M. Hutchins, who assumed the presidency
of the University of Chicago a few years after Meiklejohn
left Amherst once noted, "The Meiklejohn men up and down the
country are readily identifiable. This is not because they
agree but because they think."95
Meiklejohn decided that he needed a chance to think
more himself, and rented an apartment in New York City as a
base from which to write and lecture. His wife, debilitated
from an undiagnosed illness, sailed for Italy, her parents'
homeland, with her elderly mother and seven-year-old
daughter.
Meiklejohn immediately set about assembling some of the
speeches and essays he had written while at Amherst and
published them in late 1923 as Freedom and the College. He
also lectured to large audiences in New York City's most
famous fora, including Carnegie Hall. Lecture fees and
freelance writing for popular magazines were the main
sources of income for Meiklejohn for the next two years. An
article that Meiklejohn wrote for Century magazine on his
education theories so captivated its editor, Glenn Frank,
94 Frankfurter, Felix, "An Open Letter to Dwight
Morrow," The New Republic (July 25, 1923), 221. Morrow was
Meiklejohn's chief antagonist on Amherst's Board of
Trustees.
95 Quoted by Harold Taylor in "The Art of Making People
Think," New York Times Magazine, May 5, 1957, 20.

61
that he set up a committee to examine the possibility of
establishing a new college to implement them.96 Later that
year, Roscoe Pound considered, but ultimately declined, the
presidency of the University of Wisconsin. The search
committee next approached Frank, who accepted. Even before
he took office, the former editor offered Meiklejohn a
professorship, setting the stage for the next step in
Meiklejohn's long career in forming and testing educational
theories.
96 Meiklejohn, Alexander, "A New College, Notes on the
Next Step in Higher Education," 109 Century (January 1925),
312-20.

CHAPTER III
EXPERIMENTAL EDUCATION:
MADISON AND SAN FRANCISCO, 1927-1942
Introduction
At Amherst College, Alexander Meiklejohn had attempted
to implement his ideas about what a college education should
be by trying to impose his theories on a college community
that was nearly 100 years old. Amherst's Congregationalist
traditions did not yield easily to reformist theories of
education, however, and eventually the college's trustees
had bowed to pressure from a powerful group of alumni and
senior faculty and forced Meiklejohn to resign the
presidency.
Although it was a grave disappointment, Meiklejohn's
failure to shape the Amherst curriculum to fit his vision of
education did not dissuade him from continuing to pursue his
goal of creating a humanities-based college program. From
his new base in New York City, Meiklejohn began to
formulate a college curriculum based on the Great Books. In
March 1924, some eight months after arriving in the city
from Amherst, Meiklejohn previewed his curriculum in a
62

63
speech to the American Library Association.1 After making
additional refinements, Meiklejohn traveled to Connecticut
the following year and presented his college course plan to
a conference of educators.2 The plan Meiklejohn described
in both speeches called for a curricular tabula rasa for the
new program, not a group of courses that would be revamped
piecemeal or adjusted to fit an existing academic framework.
President-elect Glenn Frank's offer of a professorship
at the University of Wisconsin earlier that year was
attractive, but Meiklejohn did not accept immediately. His
wife, Nannine, had died of cancer in February 1925, leaving
him with four children—the oldest still in high school. At
53, such a move would be a major undertaking, and one that
Meiklejohn was reluctant to assume, so he declined the
offer.
Just after New Year's 1926, Frank wrote to Meiklejohn
again with the information that convinced him to accept and
set the course for the next phase of the professor's life.
Frank had secured the approval of the University's governors
for the establishment of an experimental program and a
commitment of financial support, if Meiklejohn would agree
Titled "The Return to the Book," the address was
reprinted in American Ideas About Adult Education, 1710-
1951, C. Hartley Grattan, ed., New York: Columbia University
Press (1959), 124-28.
2 Titled "The College of the Future," Meiklejohn's 1925
address was reprinted in The Intercollegiate Parley on
American College Education, Middletown, Conn.: Wesleyan
University Press (1926), 11-13.

64
to direct it.3 Within two months, Meiklejohn and his
children were in Madison, and he was teaching a philosophy
course while planning the program that would be known as the
Experimental College. Finally, Meiklejohn had what had
eluded him at Amherst—a free hand to design, from the
ground up, an educational program that reflected what he
conceived as the ideal college curriculum.
Shaping the Experimental College
The faculty and administration of the University's
College of Letters and Science gave Meiklejohn and his staff
considerable latitude in the basic structure of the
Experimental College. Apart from a requirement that
students be permitted to take one course elsewhere in the
university each year (to satisfy university-wide language
requirements) there were no other impositions from outside
the College. Even grade requirements were eliminated,
except for the one grade given at the end of the two-year
program. This grade was recorded for all credits at the
College and, if satisfactory, allowed students to complete
their last two years at Madison/
In place of traditional courses and subjects, one
common curriculum was developed with a general theme for
3 Glenn Frank to Meiklejohn, Jan. 3, 1926, Meiklejohn
Papers, Wisconsin State Historical Society, Madison, Box 13,
Folder 19.
4 Annual Report of the Experimental College, 1928, xii,
Experimental College Collection, University of Wisconsin
Archives, Madison.

65
each of the two years. There were, of course, no electives.
The first year's study revolved around a core of readings,
talks and discussion of the civilization of fifth century
B.C. Athens. The reading list included philosophers such as
Aristotle, Plutarch and Plato, historians including
Herodotus and Thucydides, the plays of Sophocles and the
political writings of the statesman Pericles. Toward the
end of the year, each student studied one aspect of Greek
life of his choosing in depth, picking from philosophy,
economics, art, religion, science, literature, law and
politics.5
In the second year, the class studied American society
and institutions beginning just after ratification of the
Bill of Rights. Broad topics included science, literature,
politics and philosophy. The contrasts between Athenian and
American society formed the foundation of discussions and
served as a starting point for a social scientific study
conducted by each student of his home state or region.
Readings included Other People's Money and How the Banks Use
It, by Louis D. Brandéis and The Acquisitive Society, by
Meiklejohn's friend, R.H. Tawney.6
Meiklejohn also brought with him the "Social and
Economic Institutions" course that he had developed at
Amherst and made it part of the second-year curriculum. The
5 Id. at 8-10.
6
Id. at 14-6.

66
course included a study of the American judicial system and
had been taught at Amherst primarily by economics professor
Walton Hamilton. Meiklejohn was, by his own admission, a
legal neophyte at the time, and recalled years later that
the law segment of the course had been Hamilton's idea.
According to Meiklejohn, Hamilton arrived at his office one
day and announced:
I don't think I want to teach much about economics
anymore. I think I can get more for myself and my
students if I study the Supreme Court. I just
wanted to find out if you had any objections. I
was a thoroughly uneducated young person and
didn't know what he was talking about. But of
course, it came from "Hammy" so it was alright and
I encouraged him to go on. But at the same time I
got the suggestion too that it was desirable to
study the Supreme Court justices and I think that
was the beginning of my start. But I didn't do
much with it myself for quite a number of years.7
Though an insignificant part of Meiklejohn's Amherst
experience, Hamilton's success in folding law into the
institutions course was quickly grasped by Meiklejohn, and
he was moving to expand the use of law studies in the
curriculum in his final months at Amherst. Describing
himself as an "observer only" in the field,8 he had hired a
lawyer, Thomas Reed Powell, to teach, not a traditional law
course, but a course in law for seniors, just before he was
asked to resign by the trustees. Powell declined his
7 "The Supreme Court as History," Side 1, Reel 2,
(undated audio tape) Center for the Study of Democratic
Institutions, Santa Barbara, Calif.
8
Id.

67
appointment when Meiklejohn was forced out, and plans for
law study at Amherst were derailed.9
Although Meiklejohn had still not had any exposure to
law as an academic discipline by the time he arrived in
Madison, his brief encounter at Amherst had apparently
convinced him of its value. In his design of the
Experimental College curriculum, law occupied a prominent
place in the second year of study. Though Meiklejohn would
come to disagree strongly with him, Zechariah Chafee, Jr. 's
Free Speech in the United States, was prominent on the
reading list. The Collected Legal Papers of Oliver Wendell
Holmes, Jr. and Mr. Justice Holmes and the Constitution, by
Felix Frankfurter, were also on the list.10 For the Spring
Term, 1932, the last for the Experimental College,
Meiklejohn also included a selection of 12 cases for study
and discussion.11 The dozen chosen, obscure business cases
from the previous 20 years, are not constitutionally
significant, but appear to have been selected more for their
Wofford, Harris, ed. Embers of the World:
Conversations with Scott Buchanan, Santa Barbara, Calif.:
Center for the Study of Democratic Institutions (1970), 47.
10 Memo headed "Readings for Law," Aug. 8, 1927,
University of Wisconsin Archives, Experimental College
Collection, Madison, Box 40 Folder 7.
11 Meiklejohn, Alexander, The Experimental College, New
York: Harper Brothers (1932), Appendix IV, student
assignments, Jan. 11-16, 1932.

68
symbolic value of the power of big business and the role it
played in pre-Depression American life.12
With the major components of Meiklejohn's "Athens-
America" curriculum in place as Meiklejohn directed, the
College opened in the fall of 1927 with a class of 119.13
The program was run by a faculty of 12, including
Meiklejohn, who had hand-picked them. Three of the faculty,
or advisers as they were called, were ex-Amherst faculty.14
The advisers were constituted as a group of equals not
distinguished by academic rank and often taught in two-man
teams. In the classroom, students met with advisers in
groups of about 12, but attendance was not enforced to allow
for assessment of the students' self-discipline and
capabilities for self-motivation and direction.
Meiklejohn had hoped that the Experimental College
would appeal to a broad cross-section of students that would
mirror the larger University student body. A representative
student body was important because as an experiment,
application of the results to the university as a whole and
students generally was vital to the success of the project.
12 The cases chosen included: German Alliance Ins. Co.
v. Hale. 219 U.S. 307 (1910); Charles A. Ramsay Co. v.
Associated Bill Posters. 260 U.S. 501 (1922); A.B. Small Co.
V. American Sugar Refining Co.. 267 U.S. 233 (1924).
13 Meiklejohn to Glenn Frank, Sept. 22, 1927, University
of Wisconsin Archives, Experimental College Collection,
Madison, Box 6, Folder 4.
14 Faculty contracts for 1927-28, dated July 1927,
University of Wisconsin Archives, Experimental College
Collection, Madison, Box 2, Folders 3 and 4.

69
Just before the Experimental College opened, he outlined his
hopes in a regional magazine:
We wish to experiment on the general run of
students. It seems to me that the vital social
question in American education today is not, "How
well can we do with specially qualified groups of
students?" but rather, "Can our young people as a
whole be liberally educated?" Must we accept the
aristocratic division of people into two classes,
one of which can be trained to understand while
the other is doomed by its own incapacity to
remain forever outside the field of intelligence?
. . . Our scheme of government, our scheme of
morals, our scheme of social relations, is built,
or thinks itself built, upon the view that all
normal persons are capable of understanding. And
the schools of such a societal scheme are pledged
to develop that understanding if it can be done
. . . our primary task is that of taking all types
of young people and discovering their powers.1’
The Experimental College attracted a highly capable
student body, but one that did not track the demographics of
the University. Unfortunately for Meiklejohn's experiment,
the student body the Experimental College attracted was not
the "general run of students" that he needed to test the
validity of his educational theories. The students who
enrolled were better students, and more diverse, than the
average University student. Experimental College students
were from larger cities and towns, were more likely to be
from out-of-state and had higher college entrance
examination scores. They were also more frequently of
Jewish background, a statistic that increased during the
life of the program and later caused such concern that it
contributed indirectly to the downfall of the College.
15 Meiklejohn, Alexander, "Wisconsin's Experimental
College," Survey Graphic, (June 1927), 269-70.

70
During the first year, Jewish students comprised about 20
percent of the student body; by the last year, that
proportion had risen to about 40 percent. In the regular
university, between 10 and 15 percent were thought to be
Jewish.16
Even worse, to some minds, were the politics of some of
the advisers and Meiklejohn himself. Meiklejohn used one of
socialist labor historian R. H. Tawney's books in the
curriculum, and his connection with Tawney was well known as
a result of the Amherst controversies earlier in the decade.
His belief in co-operative ownership went back even further,
to his childhood. But Meiklejohn himself provoked political
conservatives in Madison shortly after arriving in 1927 when
he became a national vice-president of the League for
Industrial Democracy, an educational association formed in
1905 to promote the study of socialism in colleges and
universities. At least four of Meiklejohn's 11 faculty at
the Experimental College were also active in socialist
politics. Classics professor Walter Agard had been
president of the Amherst chapter of the League, when it was
still called the Intercollegiate Socialist Society, and was
still a member. Lucien Koch came from now-defunct
Commonwealth College in Arkansas, a socialist college
established to train the working class in politics, and
16 Bureau of Guidance and Research, University of
Wisconsin, Report on the Experimental College, 1932, 20.
University of Wisconsin Archives, Madison, Wisconsin.

71
returned there after the Experimental College closed. Two
others ran for city office on the Socialist ticket.17
Socialism at Madison; A Brief History
Socialist thought and academic freedom had gone hand in
hand at the University of Wisconsin for nearly 40 years, and
although academic freedom had always triumphed over
conservative challenges, it had been given a rough time
along the way. The first controversy on the subject began
shortly after Charles Kendall Adams arrived in Madison from
Cornell University as the new president of the University in
1892. He immediately recruited Richard T. Ely, a political
economist from Johns Hopkins. Ely gradually abandoned
traditional laissez-faire doctrine and began to approach
economics as a means of improving human welfare.18 Within a
year, his speeches and other activities attracted the
attention of Oliver Wells, the state Superintendent of
Public Instruction and a member of the Board of Regents.
Wells became increasingly perturbed and convinced that Ely
was using his position to foment labor unrest in Wisconsin.
Unable to convince the Regents, he aired his charges in a
letter to The Nation, which claimed that Ely had assisted
union organizers and threatened to boycott a nonunion
Brown, Cynthia Stokes, Alexander Meiklejohn: Teacher
of Freedom, Berkeley: Meiklejohn Civil Liberties Institute
(1981), 31-2.
18 Bowen, Ivan, An Informal History of Activist Thought
at Madison, Madison: Wing Press (1975), 16.

72
printing plant in Madison.'9 A three-day hearing convened
on August 20 failed to substantiate the charges and resulted
in a report by the Regents which held "Whatever may be the
limitations which trammel inquiry elsewhere, we believe that
the great state University of Wisconsin should ever
encourage that continual sifting and winnowing by which
alone the truth can be found."20
However ringing that rhetoric, it did not mark the end
of criticism of professors on the grounds of unorthodox
political beliefs. After weathering his own problem, Ely
persuaded a young sociologist, Edward A. Ross, to join the
faculty in 1906. Ross was no stranger to controversy and
had already lost one faculty job due to the unpopularity of
his social views. He had been dismissed from Stanford
University in 1900 after a series of speeches in which he
had supported Socialist presidential candidate Eugene V.
Debs, the Pullman strikers and the free coinage of silver.
When he publicly advocated an end to immigration from Japan,
by military force if necessary, he was forced to resign by
Jane Lathrop Stanford, widow of the founder of the
university.21
Ross first ran into serious trouble at Wisconsin on the
eve of a visit to Madison by anarchist Emma Goldman in early
19 Wells, Oliver, "The College Anarchist," The Nation,
July 12, 1894, 27.
20 Quoted in Bowen, An Informal History, at 39.
21
Id. at 59.

73
1910. A local woman had been stopped by police who found
her tearing down posters announcing Goldman's visit. Ross
mentioned the incident in one of his classes, stating his
opposition to anarchism and his support of free speech. He
also announced the time and location of Goldman's lecture,
which started a firestorm of protest in the local press.22
Later that year he again enraged the populace and raised
conservative hackles by arranging a lecture on education by
Parker Sercombe, better known at the time for his advocacy
of free love. Ross was censured, but a vigorous defense by
University president Charles Van Hise saved his job. The
Class of 1910 presented a plaque bearing the "untrammeled
inquiry" quotation as a class gift to the University in the
wake of the Ross affair. It was not accepted by the
University until 1912, and then was put into storage until
the class finally prevailed over the administration and it
was placed on the east portico wall of Bascomb Hall in
1915.23 Ross was named president of the American Civil
Liberties Union in the 1940s and became a friend of
Meiklejohn's. In 1927, Meiklejohn had been appointed one of
65 national committee members of the ACLU, a post he held
for the rest of his life.
Freedom of student speech, rather than faculty speech,
became an issue in the 1920s when the Regents issued a
statement of unqualified support for discussion of diverse
22 Id. at 63.
23
Id. at 66-71.

74
viewpoints in the classroom, but put the use of university
facilities for student-arranged speakers under the control
of the president and the board. President Edward A. Birge,
a biologist, allowed a 1921 talk sponsored by the Social
Science Club by communist William Z. Foster in a university
auditorium, but refused the use of a room by sponsors of
radical socialist Scott Nearing later that year. The effect
of vigorous protests of that decision by student speech
advocates carried over into 1922 when author Upton Sinclair
came to campus to visit his student son and deliver a
speech.24
The End of the Experimental College
In addition to concern over the political sympathies of
some faculty members and the disproportionate size of the
Jewish contingent at the College, economics also hit the
Experimental College hard. The October 1929 stock market
crash occurred just two months into the College's third year
and threw all the other problems Meiklejohn and the College
were dealing with into stark relief. The following year,
the University doubled its tuition to offset investment
losses in the endowment portfolio, which exacerbated an
already declining rate of enrollment. The 119 students who
joined the College the first year proved to be the most in
the College's brief history. The next year's class dropped
sharply to 92, then to 79 in the third year. The fourth
24
Id. at 84.

75
year saw 74 new students enroll and only 70 began the
program in the fifth and final year.25
By 1930, the original hands-off approach of the
university toward the Experimental College had begun to
erode. George C. Sellery, Dean of the College of Letters
and Science and nominally Meiklejohn's direct superior,
began to insist on final exams in each of the College's
courses in return for his continued support. The advisers
of the Experimental College refused to alter the program.
Regular departmental faculty discovered that their salaries
were often lower than those of the advisers at the
Experimental College, where the budget came directly from
the president's office and was disbursed by Meiklejohn
alone. Sellery viewed this as an encroachment on his
territory.26 In early 1932, the College issued a report
asking for permission to expand the program, including a
recommendation that a group begin studying implementation of
the experiment for juniors and seniors. In April, the
Letters and Science faculty responded with a recommendation
that the freshman class for the Experimental College be
expanded to 200, almost double Meiklejohn's planned cap of
125, and that half the coursework each year be outside the
25 Unidentified handwritten memo headed "Enrollment,"
Box 40, Folder 2, University of Wisconsin Archives,
Experimental College Collection, Madison.
26 Brown, Alexander Meiklejohn: Teacher of Freedom, at
33 .

76
Experimental College. Again, the advisers rejected the
proposal.27
President Frank never came to Meiklejohn's defense,
realizing that he and the Experimental College had no broad-
based support within the University.28 New proposals for
the College's program drawn up by the advisers were referred
by the university administration to a newly created
committee. Members of the committee were never appointed
and the proposals were never acted upon. With plans for the
1932-1933 school year stalled, the Experimental College was
closed down in June 1932.
Once again, Meiklejohn, now sixty, was offered a chance
to stay on at the University as a part-time professor of
philosophy, and this time he accepted. That summer, the
Meiklejohns moved to Berkeley, California, and returned to
Madison for the fall semester each year until he "retired"
in 1938.29
Refining Theories of Education
The closing of the Experimental College did little to
dampen Meiklejohn's enthusiasm for the continuation of his
experiments in education. Taking a breather from the
stresses of academic administration, he began work on the
question of how to extend education to those whom he felt
needed it most. Gradually, he came to believe that those
27 Id. at 34.
28 Id. at 35.
29
Id. at 35.

77
outside the traditional college setting had both the ability
and the need for a liberal education. The task he set for
himself was to devise a plan of how to deliver it.
While still at the Experimental College, Meiklejohn had
been riled by the suggestion of Lehigh University Dean Max
McConn that 98 percent of young people could benefit only
from vocational and trade school teaching. Furthermore,
McConn estimated that only a guarter of the remaining two
percent were qualified to attend a scholar's institution.
Such suggestions struck directly at the heart of
Meiklejohn's educational philosophy, which he restated
plainly:
[Dean McConn] is ready to say that 99.5 percent of
our youth may be put aside as we set up the
agencies of higher liberal education. I am saying
that nobody knows as yet to how many minds liberal
teaching may profitably be extended. As I
understand the democratic program in education I
am eager to go on with it. . . . Instead of
limiting their opportunities of higher liberal
education to two percent of our youth, I want to
find out how nearly we can attain to making them
available to all.
Meiklejohn never abandoned that position. If anything,
it hardened and became more pointed as the years went by.
More than 30 years later, on his last visit to Amherst in
September 1960, a reporter for the campus magazine quoted
him on his views on who should go to college. "I don't
believe in the concept that some people are unfit for
30 Meiklejohn, Alexander, "Who Should Go to College?"
New Republic, Jan. 16, 1929, 319.

78
college education; college education should be so contrived
that it's fit for everybody."31
As he continued to refine his educational theories,
Meiklejohn's work became associated with a school of thought
in the 1930s that believed that a national consensus about
common political and social ideals was fading. The notion
that citizens should have a common base of understanding had
previously been championed in the late 19th Century by
educational innovators such as Irving Babbit and Albert Jay
Nock.32 Meiklejohn, working independently, shared a belief
with Robert Maynard Hutchins that the continued success of
the American system of government rests on the assumption
that citizens have an equal capacity for understanding
political issues that affect their daily lives.
Meiklejohn and Hutchins had met on a panel at a
conference on problems in education sometime in the early
1930s. The educators, who immediately found themselves in
agreement on the need to make college the place to learn
about the nation's political and social foundations,
continued their discussion on their return train trip to
Chicago. The two men identified the demise of shared values
and belief in abstract principles as the likely culprits.33
31 The Amherst Student, Oct. 31, 1960, 1, Amherst
College Archives, Amherst, Mass.
32 Rimmer, T. Walter, Innovators in Education, 1860-
1895, Philadelphia: Watson Street Publishers (1931), 206-14;
232-39.
33 Robert M. Hutchins to Meiklejohn, April 17 (no year,
ca. 1931), Meiklejohn Papers, Box 15, Folder 20.

79
They blamed educators such as William James and John Dewey
and judges such as Oliver Wendell Holmes, Jr. who preached
the doctrines of pragmatism and legal realism, respectively.
They denounced those viewpoints as leading to the pervasive
belief that only expediency counts.
Much later, Meiklejohn assailed Dewey's pragmatism in
his 1942 book, Education Between Two Worlds.34 He denounced
Dewey for his earlier overemphasis of individuality and
liberty as justifications for achievement of self-
satisfaction without regard to society at large.35 In human
relations, Meiklejohn wrote, Dewey's pragmatism led people
to "ask not only 'Is it right?' but also 'Does it pay?"'36
Eventually, Meiklejohn concluded, "Does it pay?" became the
only question and materialism and love of self led people to
turn away from a sense of community that was harmful to
democracy.37
As an early proponent of legal realism, Holmes had
taken much the same approach as Dewey in his 1881 book, The
Common Law.38 As historian Edward A. Purcell, Jr. described
Holmes' belief, "Practical expedients necessitated by the
34 Meiklejohn, Alexander, Education Between Two Worlds,
New York: Harper and Bros. (1942).
35 Dewey, John, The Public and Its Problems, Denver:
Henry Holt and Co., (1927).
36 Meiklejohn, Education Between Two Worlds, at 66.
37 Id.
38 Holmes, Jr., Oliver Wendell, The Common Law, Boston:
Little, Brown (1881).

80
needs and conflicts of human society were much more central
to the development of law than were any logical
propositions."39 Purcell also wrote that Holmes believed
moral principles formed no basis for law, which was only
"the incidence of the public force through the
instrumentality of the courts."40
Hutchins, a Yale law graduate and former dean of the
Law School who had become president of the University of
Chicago in 1929 at the age of 30, believed in educated
opinion achieved through disciplined thinking. Informed
opinion, he said, brings a depth of understanding not found
in opinion based on prejudice and immediate circumstance,
and develops distinct standards of good and bad that are not
possible to convey through pragmatism.41
Meiklejohn also believed in Hutchins' view of education
as society's savior, but he was much more specific about how
to achieve that goal. To Meiklejohn, a thorough education
would reguire a complete knowledge of the fundamentals of
democracy. He feared that without a radical transformation
of educational policy that would incorporate the study of
the philosophical underpinnings of American society,
ignorance would guide political and social decisions in the
39 Purcell, Jr., Edward A., "American Jurisprudence
Between the Wars: Legal Realism and the Crisis of Democratic
Theory," 75 American Historical Review 424,426 (1969).
40 Id.
41 Traub, Percival E. , "Hutchins of Chicago," in
Colleges and Universities in the Great Depression, Lewis
Bennett, ed., St. Louis: Hart Bros. Press (1952), 49-51.

81
future. The study of the accumulated wisdom of human
thought would create an awareness of those foundations and
spur further study of the student's own place in that
philosophical tradition, Meiklejohn maintained, leading to
more sound political choices.42
Both Meiklejohn and Hutchins urged curricular revisions
that emphasized the study of the Great Books, which they
identified as a collection of literature from history's most
prominent thinkers. They agreed that the set would be one
of about 100 volumes.43 They held that an individual could
not understand social criticism nor forge a coherent plan of
social action without them. As Dean of the Yale Law School,
Hutchins had abolished the case study method and at Chicago,
railed against the direct study of social problems as the
best way to prepare students to deal with them in later
life. Hutchins said that the best education "is a thorough
knowledge of the moral and political wisdom accumulated
through our intellectual history."44
Meiklejohn put a similar idea more specifically when he
described his concept of education for intelligent
participation in public life as a study of the basic
42 Meiklejohn, Alexander, What Does America Mean?, New
York: W.W. Norton (1935), 236.
43 Robert M. Hutchins to Meiklejohn, July 14, 1935,
Meiklejohn Papers, Box 15, Folder 20.
44 Hutchins, Robert M., "The Colleges and Public
Service," XXIV Bulletin of the Association of American
Colleges 33,35 (1938).

82
assumptions of the American style of government and social
order. The future of the country, he wrote
rests upon the issue as to whether or not we can
find ways of setting up over against our material
activity an intellectual and moral and aesthetic
insight, free enough and powerful enough to direct
it whither we will that it shall go.45
Hutchins believed that if students understood great
literature they would not only be able to understand the
need to contribute to societal improvement, but that their
appetite would be whetted to do so. They would be able to
contribute more than a simple operational response to a
problem they were faced with. The intellectual power they
had developed through study would let them fashion new
solutions to the new problems that a complex society
presented.
I shall not be attentive when you tell me that the
plan of general education I am about to present is
remote from real life, that real life is in
constant flux and change, and that education must
be in constant flux and change as well. I do not
deny that all things are in change ... we are so
impressed with scientific and technological
progress that we assume similar progress in every
field. . . . Our erroneous notion of progress has
thrown the classics and the liberal arts out of
the curriculum, overemphasized the empirical
sciences, and made education the servant of any
contemporary movements in society, no matter how
superficial.46
Hutchins, who stirred up a string of controversies at
Chicago, including the abolition of intercollegiate
45 Meiklejohn, Alexander, "Educational Leadership in
America," Harper's Magazine, CLX (1930), 447.
46 Hutchins, Robert M., Higher Learning in America, New
Haven, Conn.: Yale University Press (1936), 64-5.

83
football, still managed a 22-year tenure as president of the
university from 1929 to 1951. However, he was never able to
implement his Great Books curriculum in the face of
organized faculty opposition.47 Hutchins was a trustee at
St. John's College in Annapolis, Maryland, in the 1950s48
where Meiklejohn confidant and Amherst alumnus Scott
Buchanan and colleague Stringfellow Barr established a Great
Books program in 1937. Meiklejohn also served as a
consultant to the St. John's administration and for many
years spent a month each year on campus as both teacher and
critic.49
Why Education?
To Meiklejohn's way of thinking, a lack of acquaintance
with ideas leads to a debilitating fear of change and the
unknown born of that ignorance and a resultant inability to
make wise political choices. He was fond of saying, "to be
afraid of any idea is to be unfit for self-government."50
' Traub, Hutchins of Chicago, at 57.
48 St. John's College Bulletins, 1953-1959, St. John's
College Library, Annapolis, Maryland.
49 Correspondence between Meiklejohn and Buchanan is
voluminous on the Great Books as well as other issues facing
St. John's College. Meiklejohn Papers, Box 6, Folders 16-
18.
50 Testimony before the U.S. Senate Committee on the
Judiciary, Subcommittee on Constitutional Rights. 84th
Congress, 2nd Sess., Nov. 14, 1955, 14. The quotation was
also attributed to Meiklejohn several years earlier in the
Communist newspaper Weekly People, vol. LIX, No. 33, Nov.
12, 1949, 4, and appears in many publications attributed to
him in a variety of contexts.

84
The concept of American government as a self-governing
democracy was a central organizing concept for Meiklejohn.
Through the power to vote, provided for in Article I,
Section 2 of the Constitution, Meiklejohn defined the people
as "electors" who selected representative government to do
their bidding.51 He characterized the American citizen as
both sovereign and subject, responsible for creating the
government that would act on his behalf in his and fellow
citizens' best interests. In a self-governing society,
Meiklejohn believed, participation is equivalent to
leadership. As equals in the political process, everyone
who participates in governing by voting is by definition
taking part in the leadership of the nation.52 Leadership
demands that the governors make the best choices, requiring
the ability to not only think, but think well, for decisions
were being made for the whole society. For support,
Meiklejohn drew heavily on Rousseau's concept of sovereignty
as a collective entity represented by itself.53 Meiklejohn
knew that not all who made up the sovereign could govern and
acknowledged that not everyone could hold high elective
office, but insisted that everyone should be able to make an
intelligent choice about who eventually does. In fact, the
51 Meiklejohn, Alexander, "Freedom to Hear and Freedom
to Judge,” 10 Lawyers' Guild Review 26 (Spring 1950).
52 Id. at 29.
53 Rousseau, Jean Jacques, The Social Contract, trans.
Willmoore Kendall, Chicago: Henry Regnery Co. (1954), 33-34.

85
very success of democracy was dependent on success in civic
education, he wrote.54
Meiklejohn's sense of responsibility to society went
well beyond any concept of self-interest. That self-
interest might be served by intelligent political decision¬
making was little more than an unintended consequence in his
view, for the same decision was affecting the lives of all
other members of the society as well. From that larger
sphere of responsibility, Meiklejohn drew a considerably
more stringent view of the need for intelligence as applied
to political and social questions. Meiklejohn did not
believe that freedom was a given, but that it required
attention and hard work in order to preserve it. Part of
that hard work was becoming sufficiently acquainted with
democratic government to help direct it. That conception of
the people's relationship with the government led him to
observe that since "freedom depends upon intelligence,
intelligence is therefore a duty,"55 infusing the political
and social life of all Americans of voting age with a sense
of obligation.
Meiklejohn's linkage of duty and education for the
common good of the social group first appeared in public
through his speeches and writings in the 1930s but actually
54 Meiklejohn, Alexander, "Teacher, Teach Thyself," 2
Adult Education Journal (July 1943), 128.
55 Meiklejohn, Alexander, "The Crisis in American
Institutions," Harris Lecutures, Northwestern University,
Chicago, 1934, Lecture No. 5, p.3, Meiklejohn Papers, Box
35, Folder 1.

86
dated from at least as far back as his years as dean at
Brown. Then, as now, the question of cutting classes loomed
large. Meiklejohn favored restricting the number of
unexcused absences, but not out of concern that the student
would miss valuable material. Rather he feared that the
absence of the better students, who perhaps did not need to
attend class as regularly as others, would diminish the
learning experience of the entire class. In one of his last
reports as dean, he argued for tight restrictions on
skipping class: "My own feeling is that for the sake of the
common weal, we must restrict the freedom of the individual
and especially we must limit the good student whose goodness
makes him valuable to us."56
Meiklejohn took that duty to learn a step further,
adding the idea that there was a duty to learn the American
way, in his 1942 book, Education Between Two Worlds.
Learning the American way, however, did not mean learning
only the American viewpoint. For Meiklejohn, a significant
part of the American system of government was its tolerance
of alternative viewpoints. Meiklejohn thought that
democracy would be served best by exposing students to
several ways of looking at government. By evaluating the
individual merits of each and posing questions that required
students to support their positions, he thought he could
56 Meiklejohn, Alexander, "Report of the Dean of the
University," in Annual Report of the President to the
Corporation of Brown University, 1911, Providence, R.I.:
Brown University, 1911, 34-5.

87
illustrate the important lesson of tolerance of dissent and
reinforce the point that democracy is anti-authoritarian.
The language he chose to make that point, however, "the
purpose of all teaching is to express the cultural authority
of the group by which the teaching is given,"57 drew the
wrath of New York University professor Sidney Hook, a long¬
time antagonist. In his review of the book in The Nation,
Hook described Meiklejohn's treatise on education as a "Mein
Kampf," a stinging indictment, especially coming at the
zenith of Nazi Germany's success.58 It was perhaps that
allusion that also led Charles J. Cooper, in his 1967
dissertation, to describe Meiklejohn as an "educational
dictator. "59
In 1943, Meiklejohn's formulation of education for
collective action resulting from collective will for the
common good was certainly not seen as resourceful self-help.
Conservatives such as Hook were guick to interpret state
action as totalitarianism, overlooking Meiklejohn's
description of the state as an amalgamation of its citizens
making decisions for themselves, rather than having
decisions imposed on them. In Hook's eyes, Meiklejohn's
combination of education and duty bespoke an unbending
57 Meiklejohn, Education Between Two Worlds, at 91.
58 Hook, Sidney, "Education for the New Order," The
Nation, Feb. 27, 1943, 312.
59 Cooper, Charles J., Alexander Meiklejohn: Absolutes
of Intelligence in Political and Constitutional Theory,
(Ph.D. dissertation., Bryn Mawr College, 1967), 56.

88
authoritarianism that was suspected of prescribing a
particular educational agenda. Fortunately, Hook wrote,
that plan had been "shipwrecked in the processes of
democracy. "60
In describing his hierarchy of citizens' rights and
obligations, Meiklejohn highlights the contradictions
between the state and individual rights and blames the
widely accepted theories of John Locke for the frictions
between them. Central to the resolution of the problem,
Meiklejohn believed, was a rejection of the concept of
natural law.
Locke drew a strict distinction between the state and
the people, regarding them as separate entities. He based
that view on the idea that government is strictly a human
invention, while people were divine creations. As creatures
of God, Locke taught that the rights of man were also handed
down by God, and put into effect via reason, another divine
gift, while the rights of the manmade state were whatever
man decided to endow it with. Thus, in any conflict between
them, man's rights can claim superiority over the needs of
the state, which represents the larger community.61 It was
here that Meiklejohn saw the tyranny of the Lockean
approach. Meiklejohn said Locke's analysis allowed the
unfettered pursuit of trade and life in general as part of a
60 Hook, at 312.
61 Locke, John, Two Treatises of Government, Peter
Laslett, ed., Cambridge: Cambridge University Press (1988),
107-09.

89
laissez-faire attitude toward man's striving for material
things for personal enjoyment. For Meiklejohn, it was a
short step to a similar attitude toward education, which,
without supervision, would also be directed toward selfish
ends.62
Meiklejohn denied the two-tiered assignment of rights
based on whether they were held by man or the state. He
viewed both the state and individual rights as created by
the people, and not God. Meiklejohn refused to place man's
rights above the state's, claiming that they only existed at
the sufferance of the state, and were co-equal with the
state's own rights.
The Constitution does not mention a king, or any
superior authority. . . . All authority there is
in the Constitution . . . belongs to the people
except as the people give it to someone else . . .
there is no mention of God in the document. This
is a purely political document63
Meiklejohn found authority for his position in the
writings of the French political philosopher Jean Jacques
Rousseau. Rousseau believed that society was antecedent to
any rights, and since society was a human invention, so were
the rights that could not but flow from it. The social
contract of Rousseau's book of the same name was not to
protect individual rights, but to enable people to live as
part of a community. The contract was a contribution by
62 Meiklejohn, Education Between Two Worlds, at 132-34.
63 Meiklejohn, Alexander, "Liberty and Loyalty,"
American Friends Society Conference, San Francisco, 1952,
Meiklejohn Papers, Box 37, Folder 2.

90
"each of us [to] the common pool, and under the sovereign
control of the general will, his person and all his
power.1,64
Meiklejohn's blending of social, political and
educational theory illustrated his belief in the symbiotic
relationship of society, government and education. As equal
participants in government in their role as electors-and
governors, citizens acted in service to society by
responding to its needs. Not the least of those needs is
intelligent decision-making, so Meiklejohn believed that a
plan to ensure that citizens understood their role and the
issues facing democracy was appropriate and necessary.
Meiklejohn made liberal use of the other of Rousseau's
major writings in the formation of his educational theory.
He argued that freedom of thought in education is an
important social value, in that it allowed a wide-ranging
exploration of competing ideas. In Education Between Two
Worlds, Meiklejohn argued against teaching for its own sake
and education without direction as pointless intellectual
exercise. Freedom of education without control of some sort
by some authority would accomplish nothing that would be
useful to citizen-governors.
No student of education has provided more
carefully than did Rousseau in Emile. for the
deliberate guidance of the life of a growing
64 Rousseau, Jean Jacques, The Social Contract, trans.
Willmoore Kendall, Chicago: Henry Regnery Co. (1954), 20.

91
individual, so that it may conform to the
authoritative will of society.65
A few pages later, Meiklejohn re-emphasized his view of
the importance of freedom in education wielded for the
benefit of society, again invoking the central point of
Emile:
As we teach a young person it is not enough to
teach him to "be himself." We must teach him to
"be himself in an organized society." To
comprehend the mingling of individual freedom and
social authority which that statement intends
... is the task to which Rousseau has summoned
us.66
Secure in his belief that education was vital to a
successful democracy, Meiklejohn looked again toward the
type of institution that would let him continue his mission
of "teaching for intelligence," his term for teaching
critical thinking.67 He was dedicated to keeping the Great
Books approach he had begun to work out at the Experimental
College and continue his interest in law as a means of
social understanding.
Meiklejohn Turns to Adult Education
When Meiklejohn arrived in California in 1932, at the
age of sixty, he wasn't looking toward retirement, but
toward another way to implement his vision of what education
65 Meiklejohn, Education Between Two Worlds, at 75.
66 Id. at 95.
67 Meiklejohn, Alexander, "The Teaching of Self-
Government," 1956-57. Unpublished manuscript, p. 11.
Meiklejohn Papers, Box 38, Folder 1. The manuscript was
designed as a guide to establishing a program of adult
education.

92
should be. With the nation beset by economic difficulties
and democracy worldwide threatened by the rise of
totalitarian regimes, Meiklejohn decided that the best way
to prepare Americans to meet those challenges was to educate
those citizens who could be full participants in democracy.
Ensconced in a spacious new stuccoed home at 1525 La Loma
Avenue, high in the Berkeley hills a few blocks north of the
University of California campus, Meiklejohn contemplated how
to bring systematic thought to bear on the social problems
of the times. With the nation mired in the depths of the
Great Depression, democracy needed informed thinking from
all members of society, particularly the adults who made up
the electorate. It was their intelligence that was to
direct government policy that would lead the nation out of
the economic quagmire.
In what was to be his last real world laboratory
experiment in education, Meiklejohn founded the San
Francisco School for Social Studies as an adult education
institution. Borrowing from his Wisconsin experience, he
already had most of the academic structure of the school in
place, but spent about a year developing the administrative
infrastructure.
Fundraising had never been Meiklejohn's strong suit,
but it soon became clear to him that a school emphasizing
adult education would have to be privately funded, as public
money was not available during tight times to establish new
programs at state universities. Relying entirely on private

93
donations, the San Francisco School for Social Studies was a
freestanding private school modeled loosely on the New
School for Social Research, which had opened in 1919 in New
York City. Meiklejohn had become acquainted with the
faculty of the New School, a private institution that
emphasized the social sciences, during his post-Amherst
period in Manhattan in the mid-1920s. He had been offered a
faculty position at the New School, but had turned it down
in favor of Wisconsin.
At the San Francisco school, Meiklejohn used his
contacts among educators in the nearby universities at
Berkeley and Palo Alto who put him in touch with prominent
citizens of the area who were interested in education. From
a small core of supporters, the school was able to raise
enough money from private benefactors to open in January
1934 in donated space on the upper floors of a building in a
retail district of San Francisco. Four full-time staff,
including Meiklejohn and his wife, were supplemented by
three part-time faculty, one of whom was Meiklejohn's
father-in-law, a retired Brown professor.
More than 300 students signed up for classes almost
immediately. No tuition or other fees were charged, and
many students came in groups from other organizations such
as labor unions, church groups and women's clubs. Those
groups were left intact and classes formed around them,

94
while individual students who enrolled were assigned to
classes by their teachers after brief interviews.68
Meiklejohn was the school's director for only a year
when he turned over administrative duties to John Powell,
who had been at the Experimental College. Meiklejohn
continued to teach evening classes, but devoted most of his
time to writing. He also participated in the selection of
the books discussed in the school's seminars.
A nondegree granting institution, the school had no
formal departments, integrated curriculum or requirements,
but at first consisted entirely of discussions of the Great
Books. In addition to titles used at the Experimental
College, the San Francisco School's reading list also
included Thorstein Veblen's socioeconomic treatise, The
Vested Interests, Revolt of the Masses by Ortega y Gasset
and books by Dewey, Adam Smith and Karl Marx. The books
selected for the program reflected Meiklejohn's belief that
people learned best by studying the original writings of
those who knew best. He believed that the interpretation of
textbooks and other secondary materials diluted the message
contained in the originals.69 As Meiklejohn put it, the
study of the Great Books was the best method "to establish
living acquaintance with the best thinkers."70
68 Memo to Members of the School of Social Studies
Advisory Committee and Donors, Jan. 17, 1934, Meiklejohn
Papers, Box 57, Folder 6.
69 Id.
70
Id., page 3.

95
At the end of the first year of the program, Meiklejohn
wrote a short article for The New Republic on the progress
of his new experiment.7’ The article is a report card on
the school, a distillation of Meiklejohn's hopes for the
future of adult education, an outline of how to build a
curriculum and a critique of existing adult education
programs.
Repeating a theme that he had stressed since his days
at Amherst, Meiklejohn emphasized that there was no
additional need for adult vocational education. At the same
time, he wrote that adult education is not to be simply
something to occupy and entertain. If adult education were
designed as a diversion or for amusement, he warned, it
would be no more than "individual irresponsibility" and
"escape from obligations," two cardinal sins in the
Meiklejohn value system. What he meant to accomplish was
the stimulation of an "active and enlightened public
mind.1,72
Our scheme of government and of life can succeed
only if, in their more mature years, men and women
will engage in careful, enthusiastic and guided
study of common values, common dangers, common
opportunities. . . . Can our people understand
and direct their own living or must someone else
do their thinking, make their decisions, for
them?73
7' Meiklejohn, Alexander, "Adult Education: A Fresh
Start," The New Republic, Aug. 15, 1934, 14-17.
72 Id at 14.
73
Id.

96
With the program still in a fledgling stage, Meiklejohn
was careful in writing for such a public audience, to point
out that there was no attempt to indoctrinate any particular
point of view, but rather to create and develop the will and
capacity for independent judgment. Meiklejohn was
doctrinaire about the responsibility to think for democratic
society, but not what to think for it. "We need the
practice of democracy, not the preaching of it," he wrote.74
Meiklejohn also bemoaned the fact that most adult
education was a disjointed conglomeration of typewriting,
history, dance, economics and painting classes. He
dismissed their chaotic approach as "elective incoherence"
Classes, he said, should be unified by a dominating purpose
to give them direction and purpose.75
The Great Books plan received prominent mention, of
course, with brief mention in his writings for the first
time of the United States Constitution as a text for study
by students. At the Experimental College, law had been
incorporated in an informal fashion through the reading of a
few business cases. The Constitution, however, joined
Meiklejohn's curriculum at the School for Social Studies, in
the company of Plato and the Bible. The Constitution,
however, did not play as large a role in Meiklejohn's
educational scheme in 1934 as it did three years later when
Id. at 15.
75
Id.

97
the school published a "casebook" of sorts for adult student
use.
In 1934, the emphasis continued to be on the Great
Books. One of Meiklejohn's favorite devices was a sports
analogy, which he used to good effect in the New Republic
piece, becoming one of his most memorable quotes: "One
learns to play well by playing with the best players.
Americans would learn to study if they would read properly
the great books."76
Meiklejohn was convinced that the great books were not
an unrelated collection of separate volumes, but the
elements of a coherent program:
What we would like to develop ... is the sense
that there are certain central problems with which
every mind should be dealing, certain leaders of
intellectual activity with whom every intelligent
American should have acquaintance. We need, in
our American cities, what might be called a common
culture of ideas, of interests, of problems, of
values ... we are rendered ineffectual in our
common living by the lack of any common
thinking. 77
Meikleiohn Turns to the I,aw
As time went by and the School of Social Studies gained
a more solid financial footing, Meiklejohn began to spend
more of his time adjusting the curriculum. The result of
his work was an enlarged role for the Constitution and law
in general. Copies of the Constitution were easy enough to
come by, but Meiklejohn wanted to include court opinions,
Id.
at 16.
77
Id.

98
which presented a problem in supplying several hundred
students, especially when the school had no library of its
own.
The law expert on the school' s faculty in the late
1930s was Myer Cohen, a lawyer who had studied under Walton
Hamilton at Amherst, the first academic to introduce
Meiklejohn to the field of law study as an academic subject.
Cohen and Meiklejohn had cast about for a place in the
curriculum for law study, and decided to drop The Education
of Henry Adams as too elementary for most adult students.
History was considered and discarded, with Meiklejohn the
steadfast opponent:
"Whatever its other merits, history does not tend
to give to the untrained mind a genuine
orientation . . . history can excel all other
subjects in the undesirable achievement of
combining the maximum amount of knowledge with the
minimum amount of understanding.1,78
What Meiklejohn did support was the study of law, and
he encouraged Cohen to compile a selection of United States
Supreme Court decisions that would be useful to the school's
program. Meiklejohn contributed the Foreword to Cohen's
collection, and in recounting his introduction to law at
Amherst and efforts to expand law study while he was
president, he wrote:
It was the belief [at Amherst] that the study of
law has more promise than any other social subject
as a line of approach to the understanding of
human society. The omission of the law from the
Meiklejohn, Alexander in Foreword, Myer Cohen, ed.,
Selected Supreme Court Decisions, New York: Harper and Bros.
(1937), x.

99
undergraduate curriculum has long seemed to me a
teaching error of the first magnitude. I am sure
that the law and courts of a society can be made
far more revealing of its purpose, structure and
function than can its mills, or churches, or
offices, or banks, or even its songs and stories.
If it were properly taught, the law would, I
think, bring us most vividly, most intimately,
into the presence of the human mind, the human
spirit, as it creates the forms of individual and
social experience.79
The foreword to Cohen's book was Meiklejohn's first
written expression of his belief in the utility of law as a
teaching tool and reflection of society. From that point
on, law study began to occupy more and more of his time and
commanded increasing attention as a means of preparing
citizens for their role in self-government. Just a few
months after writing the foreword to Cohen's casebook,
Meiklejohn reflected on his growing fascination with the law
in a letter to the young daughter of a friend. The young
woman was apparently giving serious thought to applying to
law school, and Meiklejohn was full of encouragement. He
repeated some of his beliefs in the value of law study as a
means of social understanding, then added, on a personal
note, "I regret missing it more than any other field.”80
Despite Meiklejohn's affinity for law and his clear
realization of its importance in creating an educated
individual, law played only a supporting role in the
curriculum of the San Francisco School for Social Studies.
79 Id. at x-xi.
80 Letter from Meiklejohn to Jessica Davidson, Apr. 5,
1937, Meiklejohn Collection, Meiklejohn Civil Liberties
Institute, Berkeley, Box 2, Folder 2.

100
For Meiklejohn personally, law also remained at the
periphery of his educational vision until 1942, when he
finished his last major work on education, Education Between
Two Worlds. That year also saw the demise of the San
Francisco School, as the United States' entry into the
Second World War diverted the money and attention of the
institution's wealthy benefactors.81
The closing of the San Francisco School for Social
Studies in the summer of 1942 marked the end of Meiklejohn's
full-time involvement with education in a classroom setting.
Now seventy years old, he turned his full attention to a
painstaking examination of the citizen's place in the
American form of democratic government. The lens he chose
to focus his efforts was law and the United States
Constitution.
81
39.
Brown, Alexander Meiklejohn: Teacher of Freedom, at

CHAPTER IV
MEIKLEJOHN'S DEVELOPING INTEREST IN LAW:
BERKELEY, 1942-1955
Introduction
The 1942 publication of Education Between Two Worlds'
was Alexander Meiklejohn's last book-length statement on the
social role of education. The closing of the San Francisco
School for Social Studies that same year was also the last
of Meiklejohn's attempts to structure an educational program
that would fulfill that role. From that point on, the
retired professor directed his energies toward the creation
of a theoretical justification for the direct citizen
involvement in those social institutions that most closely
affected daily life. After spending an academic career of
nearly 45 years exposing students of all ages to the leading
commentators on Western civilization, Meiklejohn now sought
the mechanism by which liberally educated students could
engage themselves in the debate over the direction of
society.
Meiklejohn never explained when he became aware of the
First Amendment as a means of applying citizens' informed
opinions to the conduct of government. Since his
1 Meiklejohn, Alexander, Education Between Two Worlds,
New York: Harper & Bros. (1942).
101

102
introduction to law at Amherst relatively early in his
academic career, he had regarded the subject solely as an
instructional device that was useful primarily as a
reflection of various American social institutions. The
closest he ever came to an involvement with law in academia
was the selection of a group of business cases for the
course of study at the Experimental College. His attention
turned toward issues of constitutional law while at the San
Francisco School of Social Studies, however, but even then
his involvement was confined to encouraging Myer Cohen, one
of his faculty, to assemble a volume of Supreme Court cases
in the late 1930s.
Sometime after 1942, however, Meiklejohn, now in his
seventies, devoted himself full-time to the study of the
First Amendment. The result of his immersion was the 1948
publication of Free Speech and Its Relation to Self-
Government,2 a slender volume that philosophically
established the citizen's primacy in democratic government.
From that premise, Meiklejohn used the First Amendment as a
conduit to advocate unbridled speech connected with the
business of running government.
Since Meiklejohn was not a lawyer and never received
any formal training in law, his knowledge of the First
Amendment and other constitutional issues was entirely self-
taught. He did have the benefit of association with some of
2 Meiklejohn, Alexander, Free Speech and Its Relation to
Self-Government, New York: Harper & Bros. (1948) .

103
the foremost legal minds of his day, however. His
discussion with Amherst professor Walton Hamilton has
already been noted, but another meeting at about the same
time had an undoubtedly deeper and longer-lasting effect.
Meiklejohn and Felix Frankfurter
In 1916, while Meiklejohn was shaking up the Amherst
establishment, he took part in the inauguration of Ernest M.
Hopkins as president of Dartmouth College, further up the
Connecticut River Valley in Hanover, New Hampshire. Also on
the dias that morning was Felix Frankfurter, then a
professor at Harvard Law School. In a tribute, written
shortly after his 1962 retirement, to the man who had become
a symbol of judicial restraint on the United States Supreme
Court, Meiklejohn recalled, "the young fellow from the
Harvard Law School fascinated me then, and ever since we
have been friends."3
During that friendship, which lasted nearly 50 years,
the two remained in close contact, though Frankfurter grew
slightly aloof after his 1939 appointment to the Court.
That was at least in part due to Meiklejohn's penchant,
revealed in his letters, for posing constitutional questions
to Frankfurter, seeking to draw him into intellectual debate
on the First Amendment issues that sometimes separated them.
In one of the last letters to Meiklejohn before a
hiatus of nearly nine years, Frankfurter rebuffed his probe
3 Meiklejohn, Alexander, "A Mirror of Friendship," in
Felix Frankfurter: A Tribute, Wallace Mendelson, ed., New
York: Reynal and Co. (1964), 87.

104
for the reasoning behind one of the justice's opinions.4
Meiklejohn had apparently written to collect information
while preparing an article on recent Court decisions. "Not
even with a trusted friend like you can one exchange mind
with mind on matters of judicial cognizance . . . but as to
which I must let what I say judicially stand without comment
or explication."5
When Frankfurter resumed correspondence with Meiklejohn
years later, he carelessly and certainly inadvertently
encouraged just the kind of response from the professor that
made him so uncomfortable. At the end of the Court's 1957
term, Frankfurter sent Meiklejohn a copy of the slip opinion
containing his concurrence in Sweezy v. New Hampshire.6 an
academic freedom case in which the Court had overturned, 6-
3, the contempt conviction of a professor who had refused to
answer questions directed to him by a state investigative
committee. Frankfurter's opinion contained an extensive
discussion of the importance of free inquiry at the nation's
universities, some of which read as though it had been
written by Meiklejohn himself:
Insights into the mysteries of nature are born of
hypothesis and speculation. The more so is this
true in the pursuit of understanding in the
groping endeavors of what are called the social
Meiklejohn's papers at the Wisconsin State Historical
society in Madison contain no correspondence between himself
and Frankfurter between July 1948 and June 1957.
5 Felix Frankfurter to Meiklejohn, Apr. 12, 1948,
Meiklejohn Papers, Box 13, Folder 20.
6 354 Ü.S. 234, 255-67 (1957).

105
sciences, the concern of which is man and society.
. . . For society's good—if understanding be an
essential need of society—inquiries into these
problems, speculations about them, stimulation in
others of reflection upon them, must be left as
unfettered as possible. Political power must
abstain from intrusion into this activity of
freedom, pursued in the interest of wise
government and the people's well-being7
Meiklejohn must have been ecstatic to read that opinion
and further buoyed by Frankfurter's conciliatory note on its
cover, which contained the clue to Frankfurter's First
Amendment beliefs that Meiklejohn had tried earlier to draw
out and that the justice had so closely guarded. The jurist
had jotted: "Dear Alec: This is one of the rare occasions
when I could judicially validate my personal credo. It goes
to you as a symbol of gratitude for your friendship."8 An
accompanying note conveyed Frankfurter's regrets to an
invitation to attend graduation ceremonies at Amherst where
Meiklejohn was to deliver the commencement address on his
first visit to the campus since his dismissal.
Meiklejohn wrote back his appreciation of the
difficulties in making the trip to Amherst and wished
Frankfurter a restful summer recess. Almost as an
afterthought he added, "May I add a word of congratulations
on the recent First Amendment decisions. I think a lot of
good will ensue."9
7 Id. at 262.
8 Meiklejohn Papers, Box 13, Folder 20.
9 Meiklejohn to Frankfurter (copy), June 29, 1957,
Meiklejohn Papers, Box 13, Folder 20.

106
Frankfurter's rebuke was only days in coming. "No, you
may not congratulate me on our recent decisions. I am
sticky on that subject," he wrote. However, Frankfurter was
not being as personally brusque with his old friend as first
appears. Seeing the opportunity for a teachable moment, he
continued with a lesson on his own view of judicial
restraint:
Courts ought not to be congratulated on
pronouncing what their conscience tells them the
impersonal exactions of law require, simply
because the result is pleasing. Of course they
are subject to criticism if what they pronounce as
law is merely an expression of their own personal
narrow outlook. From my point of view, they are
equally to be criticized if they transcend the
limits which bind the judiciary and make
pronouncements which Presidents and Senators may
make but judges should not.10
Intractable though Frankfurter may have been on the
topic of discussing his judicial reasoning, the two elderly
men continued their close personal association until the end
of their lives.
Though Meiklejohn rarely agreed with Frankfurter's
judicial conservatism, the duration of their relationship
and the volume of their correspondence on First Amendment
topics undoubtedly was one of the main sources of
Meiklejohn's understanding of constitutional law. While
each man was a novice in the other's field, it is clear that
each had influenced the other, at least to some small
degree. After one particularly sharp disagreement over a
10 Frankfurter to Meiklejohn, July 15, 1957, Meiklejohn
Papers, Box 13, Folder 20.

107
Court opinion, Frankfurter is reported to have suggested
that Meiklejohn could benefit from "a few years at a good
law school." Meiklejohn is said to have readily agreed, and
suggested that Frankfurter spend an egual amount of time in
"a good philosophy course."11
Toward the end of their lives, their correspondence
increasingly discussed a mutual friend, Zechariah Chafee,
Jr. To Meiklejohn, Chafee was a former student, a
Providence, Rhode Island native who had been an
undergraduate at Brown when Meiklejohn was the university's
dean. To Frankfurter, he had been a colleague on the
faculty of Harvard Law School. In any event, by the early
1920s, Chafee had acquired the reputation as the foremost
First Amendment scholar in the country and a devoted
disciple of United States Supreme Court Associate Justice
Oliver Wendell Holmes, Jr. Holmes had died in 1935, several
years before Meiklejohn began to concentrate on law, and so
the justice was unable to defend his famous "clear and
present danger" test from the logical flaws the professor
perceived in it. It fell to Chafee, then, to deal with
Meiklejohn's assault on the late justice's position on
freedom of speech when Meiklejohn published his famous 1948
treatise.
11 Palmer, Mack Redburn, The Qualified Absolute:
Alexander Meiklejohn and Freedom of Speech, (Ph.D.
dissertation, University of Wisconsin, Madison, 1979) 293-
94.

108
From 1948 on, Meiklejohn and Chafee clashed repeatedly
over each other's public statements on the First Amendment
and other speech issues. Both were unwavering in their
dedication to freedom, but differed dramatically in their
interpretations of the constitutional provisions governing
it. As a lawyer, Chafee predictably stressed the practical,
real world application of his position.12 Meiklejohn, who
was trained as a logician, argued in the abstract and often
intentionally ignored both historical and legal precedent.13
These widely divergent approaches made conflict
inevitable. Meiklejohn described the disagreement between
them as having put himself and Chafee "intellectually at
war" in a 1957 letter to his friend, Robert Hutchins.14
Meiklejohn's tendency to argue the theoretical put himself
at a disadvantage, particularly when the scholarly debate
with Chafee over Holmes' test for danger was carried on
under circumstances very much like that in which the test
See, e.g., Chafee's review of Meiklejohn's Free
Speech and Its Relation to Self-Government, 62 Harvard L.R.
891 (1949). Chafee refers to the unknown, but probably
considerable, number of people who would have been jailed
under the old judical test that allowed punishment of
expression that had a tendency to cause unrest.
13 Meiklejohn, for example, found the Declaration of
Independence's proclamation of 'inalienable' rights and the
Fifth Amendment's provision for taking by due process to be
"so flatly contradictory the situation is almost ludicrous."
What Does America Mean?, New York: W.W. Norton and Co.
(1935), 109.
14 Meiklejohn to Robert Hutchins, January 19, 1957,
Meiklejohn Papers, Box 17, Folder 11.

109
was originally forged 30 years earlier when Holmes dealt
with the perils and fears of World War I.
Meiklejohn and Holmes: Logic v. Realism
Much of the basis of Meiklejohn's disagreement with
Holmes' "clear and present danger" test can be traced to the
difference in their academic training and ages. A thrice-
wounded Civil War veteran, Holmes had graduated from Harvard
Law School in 1866 and was a well-known Boston lawyer before
Meiklejohn was born.15 Meiklejohn was trained as a
philosopher in the 1890s, specializing in logic, as
scientific method began to occupy an influential position in
American higher education.16
Holmes was trained during what legal historian Lawrence
M. Friedman has called Harvard Law School's "dark age,"
which lasted from about 1845-1870. At that time, law was
taught by lecture and rote memorization of legal
principles.17 Shortly after Christopher Columbus Langdell
was brought to Harvard in 1870 to revamp the curriculum and
was named the school's first dean, he purged the lecture as
a form of instruction and introduced the Socratic method of
analyzing cases to trace the growth of legal principles over
Howe, Mark DeWolfe, Justice Oliver Wendell Holmes:
The Shaping Years, 1841-1870, Cambridge: The Belknap Press
of Harvard University Press (1957), 204.
16 Cremin, Lawrence A., American Education: The
Metropolitan Experience, 1876-1980, New York: Harper & Row
(1988), 555-61.
17 Friedman, Lawrence M., A History of American Law, New
York: Simon and Schuster, 2nd ed. (1985), 610.

110
the centuries. Langdell viewed law as a "science,"8
containing a precious core of basic principles, which, when
followed logically, led to the discovery of legal doctrine.
The appeal of stare decisis ("let the decision stand") was
located in the doctrine's logical progression and deference
to a nucleus of legal principles. The unwavering devotion
to precedent elevated stare decisis to the level of holy
writ and Langdell's case method was adopted nationwide by
the turn of the century.19 The Langdell method's radical
departure from established techniques was unpopular at first
among many in the Harvard community. In fact, according to
an official history of the Law School, "to most of the
students, as well as Langdell's colleagues, it was
abomination. "20
One of those who took that dim view of Langdell's
approach was Oliver Wendell Holmes, Jr., who had graduated
from Harvard Law School shortly before Langdell's arrival.
Holmes regarded Langdell's embrace of logic as overly
simplistic and could not accept a conception of law as a
collection of rules independent of context. Years later,
Meiklejohn's training as a logician led him to reject
Holmes' stance, which looked primarily to immediate
18 Langdell, Christopher Columbus, Contracts, Boston:
Harvard University Press, (1871), vi-vii.
19 Friedman, A History of American Law, at 616.
20 Trustees of Harvard University, Centennial History of
the Harvard Law School, 1817-1917, Cambridge: Harvard
University Press (1918), 35.

Ill
circumstance in resolving legal questions. As a logician,
Meiklejohn was committed to the belief in an unbroken,
interdependent chain of principles unaffected by current
events. That belief formed the basis for Meiklejohn's
opposition, during the first few years of his law study, to
Holmes' jurisprudence, culminating in his book, Free Speech
and Its Relation to Self-Government.
Holmes understood the conceptual clarity Langdell, and
later Meiklejohn, found at the heart of the law and called
the Harvard dean "the greatest living legal theologian."
But Holmes called logic an "evening dress which the newcomer
puts on to make itself presentable;" declaring the
"important phenomenon is the man underneath it, not the
coat."21 On the eve of his appointment to the Massachusetts
Supreme Judicial Court in 1882, Holmes put that thought more
directly in the oft-quoted line, "The life of the law has
not been logic; it has been experience."22 Holmes returned
to this theme again a few years before his appointment to
the United States Supreme Court. The restatement was a bit
less clear, but plainly showed he hadn't changed his mind:
"The language of judicial decision is mainly the language of
logic. And the logical method and form flatter that longing
for certainty and repose which is in every human mind. But
21 Quoted in Mark DeWolfe Howe, Justice Oliver Wendell
Holmes: The Proving Years, 1870-1882, Cambridge: The Belknap
Press of Harvard University Press (1963), 155-57.
22 Holmes, Oliver Wendell, Jr., The Common Law, Boston:
Little, Brown and Co. (1881), 1.

112
certainty is illusion, and repose is not the destiny of
man."23 Forty years after the publication of The Common
Law, Holmes, by this time on the Supreme Court, continued
the drumbeat against the place of logic in the law, this
time in his Court opinions. In the 1921 case, New York
Trust Co. v. Eisner. Holmes wrote, "[A] page of history is
worth a volume of logic."24
Holmes' original dictum established him as the father
of American legal realism, which flourished in the 1920s and
1930s. Legal realism challenged the notion that the law
consisted of fixed and immutable principles, a view that had
become known as slot machine jurisprudence for its use of
precedent to produce a predictable result.25 To that
traditional approach, the realists sought to add changing
social conditions as a factor in deciding how to administer
justice.
Langdell's politically conservative "scientific"
approach to law was a nonempirical orthodoxy that provided
consistency by weaving an unbroken thread through decision
after decision.26 Its "scientific" nature was consistent
with a general late 19th Century passion for science that
23 Holmes, Oliver Wendell Jr., "The Path of the Law," 10
Harvard Law Review 457 (1897), 466.
24 256 U.S. 345, 348-9 (1921).
25 See, e.g. Dickinson, John, "Legal Rules: Their
Function in the Process of Decision," 79 University of
Pennsylvania Law Review 833 (1931) .
26
Id. at 840-42.

113
followed the evolutionary theories of Charles Darwin.
Langdell's "science," which is commonly known as the "case
method," postulates that all knowledge in the field of law
can be found among the logically related precedent-following
cases in the bound volumes of appellate opinions.
The very fact that law was described as "scientific"
meant that it could be reduced to a handful of fundamental
rules and principles, Langdell thought. In this view, a
judge does not make law when rendering an opinion. The
decision does not reflect personal biases and prejudices or
exigencies of the moment as it applies to the circumstances
of the particular case. Instead, the concepts, rules and
principles that had been revealed in previous decisions are
applied to the current problem.
This mechanical view of law was viewed by the realists
as a hopelessly outdated holdover from a simpler agrarian
age that could not adeguately serve the reguirements of
industrial expansion and the reordering of social and
economic relationships that accompanied it. The complexity
of society reguired consideration of the various components
of it, they believed. Critics of mechanical jurisprudence
such as Karl Llewellyn, Jerome Frank and Roscoe Pound
espoused the cause of judicial realism and a procedural due
process approach to the evaluation of legislation that
allowed the courts to pass not only on the police power of
the states to enact legislation, but also to judge the
wisdom of those enactments. Realists have been described as

114
supporters of the notion that "law must not stand in the way
of progress," and that the Constitution was a document
"whose meaning was made to depend on the circumstances of
time and place."27
The importance of circumstances in Holmes' mind came to
the fore in his opinion for a unanimous Court on the issue
of free speech in wartime in Schenck v. United States.28
Charles Schenck and his associate had been convicted of
violating the Espionage Act of 191729 by circulating
handbills that were found to have been designed to obstruct
recruiting efforts and cause insubordination in the ranks of
military conscripts during the First World War. The
language of the Act clearly prohibited action interfering
with military efforts, but the defendants characterized
their handbill campaign as speech. Holmes acknowledged the
speech component, but blurred the possible distinction by
emphasizing the circumstances under which the claimed speech
took place.
We admit that in many places and in ordinary times
the defendants in saying all that was said in the
circular would have been within their
constitutional rights. But the character of every
act depends upon the circumstances in which it is
done. The most stringent protection of free
speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. It does
not even protect a man from an injunction against
Jacobsohn, Gary J., Pragmatism, Statesmanship and the
Supreme Court, Ithaca, New York: Cornell University Press
(1977), 17-18.
28 249 U.S. 47 (1919) .
29 40 Stat. 217, amended 1918 as 40 Stat. 553.

115
uttering words that may have all the effect of
force, [citations omitted] The question in every
case is whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent. It is a question of
proximity and degree. When a nation is at war
many things that might be said in time of peace
are such a hindrance to its effort that their
utterance will not be endured so long as men fight
and that no Court could regard them as protected
by any constitutional right.30
As Meiklejohn prepared his 1948 critique of Holmes'
"clear and present danger" test for restricting free speech,
he turned to educational pragmatist John Dewey, whose
philosophy on education he had disagreed with earlier in the
decade in Education Between Two Worlds Although they
disagreed, Dewey provided Meiklejohn the link between the
pragmatic theorists in education and the law. Meiklejohn,
who was an experienced educator but still a novice law
student in the 1940s, needed that connection to attack the
fluidity of the concept of pragmatism and legal realism that
Holmes embraced. Dewey had cast the conflicting concept of
logical thought as a specious argument in siding with Holmes
and explaining his fondness for a pragmatic interpretation
of law that would address current needs: "Justice Holmes is
thinking of logic as equivalent with the syllogism, as he is
quite entitled to do . . . there is an antithesis between
30 249 U.S. 47, 52 (1919) .
31 Meiklejohn, Education Between Two Worlds, at 127-252.

116
experience and logic, between logic and good sense."32
Dewey supported the idea that when unforeseen circumstances
arise that require application of the First Amendment, legal
realism dictates the sensible course, which includes
cognizance of those circumstances. Realists such as Holmes
believed that blindly applying logical principles fails to
be sensitive to the special needs of the situation.
Dewey and Holmes conceived of realism as applicable to
a broad range of legal problems, but Meiklejohn assigned
logic a far smaller role in democratic thought, structure
and procedure. Meiklejohn thought that the most germane
goal of the free speech clause of the First Amendment is to
aid popular decision making in the service of self-
government .
Meiklejohn, the Stromberg Opinion and its Antecedent?
Meiklejohn was of course one of the better-known 20th
Century American proponents of the role of free speech in
self-government, but certainly not its originator. The
seeds of thought on free speech in self-government came from
the Continent, where they are traceable to the writings of
Spinoza.33 In America they appear in, among other places,
32 Dewey, John, "Logical Method and Law," 10 Cornell Law
Quarterly 17 (1924), 21.
33 See Benedict de Spinoza, "A Theological-Political
Treatise," R.H.M. Elwes trans., 1951, 257-66. (drawing
connections among "freedom of thought and speech,"
"democracy" and "the voice of the majority.") For a
readable interpretation of Spinoza's theory of freedom of
speech, see Leiser Madanes, "How to Undo Things with Words:
Spinoza's Criterion for Limiting Freedom of Expression," 9
Hist. Phil. Q. 401 (1992).

117
the political tracts of Cato34 and at the Supreme Court in
the Brandéis dissent in Gilbert v. Minnesota.35
Gilbert involved the conviction of an anti-war
demonstrator similar to several other cases of the World War
I period except that it lacked the socialist political
component of those cases. Gilbert was a pacifist who had
been convicted of violating a broad state statute forbidding
the communication of anti-war sentiments. Noting that the
defendant advocated no political doctrine, but only
questioned the morality of the government's decision to wage
war, Brandéis included language strongly supportive of the
citizen's right to discuss goverment conduct as part of
participation in self-government.
The right of a citizen of the United States to
take part ... in the conduct of the government,
necessarily includes the right to speak or write
about [it]. . . . Full and free exercise of this
right by the citizen is ordinarily also his duty;
for its exercise is more important to the nation
than it is to himself. ... In frank expression
of conflicting opinion lies the greatest promise
of wisdom in governmental action; and in
suppression lies ordinarily the greatest peril.36
See, e.g., Cato (George Clinton), Cato II, The New
York Journal, Oct. 11, 1787, reprinted in Essays on the
Constitution of the United States, Paul L. Ford, ed.,
Brooklyn: Historical Printing Club (1892), 250-54. See also
Vincent Blasi, "The Checking Value in First Amendment
Theory," 1977 Am. B. Found. Res. J. 521, 529-31. Blasi
argues that based on the North American colonial period
writings of Cato that the free speech principle of the First
Amendment allows the electorate to check excesses of
government power.
35 254 U.S. 325, 334-39 (1920) (Brandéis dissenting)
(arguing that the right of free speech is an integral part
of the powers of the electors of the national government.)
36
Id. at 337-38.

118
Another excellent example of the expression of the
democratic principle of free speech for citizens in the face
of stiff institutional opposition, and one that was
apparently dearest to Meiklejohn's heart, appeared as a
majority opinion only 11 years after Brandéis' GiIbert
dissent. Chief Justice Charles Evans Hughes' opinion in the
1931 Supreme Court case Strombera v. California37 is one of
the very few Court opinions among Meiklejohn's papers.
Meiklejohn's fondness for the language and principles
expressed in Strombera is evidenced by the heavily and
glowingly annotated, quarter-folded and smudged printed copy
marked "found in desk" on the back of the last page.38 The
notation "found in desk" is in handwriting that matches that
of Helen Meiklejohn, who made the same notation on several
other items. Although the case was decided well over a
decade before he began writing on the First Amendment,
Meiklejohn never mentioned it by name in his writing. He
did, however, obviously refer to it frequently over the
years, as the copy shows considerable wear at the creases
and is torn near one edge.39
283 U.S. 359 (1931) .
38 Undated copy, Meiklejohn Papers, unindexed
miscellaneous folder, Box 69, Folder 5. Meiklejohn's copy
is from West's Supreme Court Reporter; the five-page copy
does not include the three pages that report the majority of
Justice Pierce Butler's dissent.
39 The copy is so worn that it is kept between pieces of
cardboard in its folder at the Wisconsin Historical Society.

119
The history of Meiklejohn's copy of the case is
enigmatic. At some unknown point, Meiklejohn wrote a
telling personal note next to the caption of the case on his
copy of the opinion to a person identified only as "W." The
sentence fragment that follows, however, "The key to our
freedoms" shows clearly the extent of his agreement and
enthusiasm for the case's result.40 The note ends with
Meiklejohn's characteristic initials—he rarely signed his
long full name on informal documents.
Although who "W." is may never be known, it appears
that the copy was either never sent or was returned to
Meiklejohn before his death and he kept it close at hand.
Letters sent to friends and acquaintances which were
returned after Meiklejohn's death are labeled with other
notations by his widow, who carried out an extensive effort
to recover his correspondence before donating the collected
papers to the Wisconsin State Historical Society in the late
1960s.
The Court's opinion in Strombera stemmed from the
conviction of 19-year-old Yetta Stromberg, a counselor at a
summer camp run by the Young Communist League. As part of a
daily ceremony, Stromberg and her young charges raised a
40 The far more famous example of his delight with a
Supreme Court decision on a free speech issue is the remark
with which Meiklejohn greeted the Court opinion in New York
Times v. Sullivan: "It is an occasion for dancing in the
streets." Meiklejohn made that now-famous assessment in a
discussion Harry Kalven, Jr. shortly after the 1964
decision. See, Kalven, "The New York Times Case," 1964
Supreme Court Review 191, 221 (footnote 125).

120
reproduction of the red Soviet flag, which is also the flag
of the United States Communist Party, in violation of a
California statute. The statute quoted in the opinion had
forbidden signs, symbols or emblems of opposition to the
government, words that Meiklejohn underlined and noted were
"speech," which he agreed was protected.41 The opinion also
notes that the statute specifies that the offense is a
felony. Meiklejohn underlined the word "felony" with the
disbelieving note in the margin, "political activity
criminal?"42
The opinion's recitation of the facts of the case
disclose that the camp maintained a library of radical
Communist propaganda. The suggestion that education could
somehow be dangerous caught the professor's attention. He
underlined "library" and wrote "educational" in the margin.
The facts also stipulated that none of the books or
pamphlets were used to teach Communist principles at the
camp, but Meiklejohn has those lines marked, with the
question, "if they had been?"43
The Court overturned Stromberg's conviction on
Fourteenth Amendment grounds, holding that the statute was
invalid as an unwarranted limitation on the right of free
speech. The opinion characterized Stromberg's display of
41 Third page, undated copy, Meiklejohn Papers, Box 69,
Folder 5.
42 Id., page 2.
43
Id.

121
the flag as a symbol of "peaceful and orderly opposition,"
to the government, which was also protected expression;
Meiklejohn highlighted that phrase and described it as
"discussion" in the margin.44
In his analysis of the facts of the case, Hughes
contrasted Stromberg's activities with acts of "force and
violence." At that point, Meiklejohn noted in the margin,
"protection stops." In the following paragraph of the
opinion, the Court cited three of its prior decisions as
standing for the proposition that the concept of liberty
under the due process clause of the Fourteenth Amendment
embraces the right of free speech. Meiklejohn underlined
"free speech" and wrote "political" in the margin.45
Meiklejohn's last comment on his copy of the opinion comes
near the end of the opinion, where Hughes, citing the
opinion of the state appellate court, quotes approvingly the
lower court's characterization of the case as "peaceful and
orderly opposition to a government" by those of a different
"political party." Focusing on those phrases together,
Meiklejohn underlined them and drew lines to his marginal
note, "self-government function."46
Though Meiklejohn's handwritten comments show he was
clearly in accord with the seven justices who voted to
overturn Yetta Stromberg's conviction and evidently drew
44
id.,
- page
3.
45
id.,
. page
4.
46
id.,
, page
5.

122
much comfort from the decision, the victory for free speech
it represented may be the very reason why he never wrote
about it. Instead, cases in which free speech lost were the
focal points for much of Meiklejohn's legal writing during
the decade of the 1950s, and there were several of them to
write about between 1919 and 1960. The cases that he did
choose to write about gave him the opportunity to point out
illogic, identify wrong-headed thinking, raise issues and
pose questions, all things Meiklejohn put ahead of offering
solutions.47 Victories were problems already solved and
offered Meiklejohn no challenge. They were to be savored
privately and among friends such as "W," but energy was best
expended in an effort to highlight wrongs in hopes that the
people would right them.
tfeikleiohn and Holmes II: Absolutes v. Balancing
Meiklejohn believed that Strombera had handled the
problem of unpopular speech correctly, while Schenck did
not. Meiklejohn's commitment to logic in the law was
offended by the "clear and present danger" test from Holmes'
4 The six court opinions Meiklejohn wrote law review
articles about all represented defeats for free speech:
Schenck v. United States. 249 U.S. 47 (1919); American
Communications Assn, v. Douds. 339 U.S. 382 (1950) and
United States v. Dennis. 183 F2d 201 (2nd Cir. 1950) were
discussed in "The First Amendment and Evils that Congress
Has a Right to Prevent," 26 Indiana L.J. 477 (1951). Dennis
Hi United States, 341 U.S. 494 (1951) was discussed in "What
Does the First Amendment Mean?" 20 U. Chicago L.R. 461
(1953). Barenblatt v. United States. 360 U.S. 109 (1959)
was discussed in "The Barenblatt Opinion," 27 U. Chicago
L.R. 329 (1960) and Koniasberg v. State Bar. 366 U.S. 36
(1961) was discussed in "The First Amendment is an
Absolute," 1961 S. Ct. Rev. 245.

123
opinion in Schenck. which Meiklejohn believed evinced a
willingness to find a conditional test for free speech in
the circumstances under which the speech was uttered. One
of Meiklejohn's main targets over the years was the concept
that there could be any threat posed by an idea. Strombera
had amply illustrated that a teenage camp counselor's
discussion of Communism posed no threat. Meiklejohn saw no
difference in the presentation of anti-war messages to
draftees. Meiklejohn's argument began to take shape in a
series of lectures delivered at the University of Chicago in
1947. They were gathered into a small book the following
year that was published as Free Speech and Its Relation to
Self-Government.48
In Free Speech, Meiklejohn addressed two broad topics:
the structure of democratic government and the meaning of
the First Amendment. In interpreting the First Amendment,
he focused his criticism of the Court's treatment of free
speech mainly on Holmes' "clear and present danger" test,
which he believed undermined the meaning of the First
Amendment. He regarded Holmes' opinion in Schenck as
creating an exception to the First Amendment rather than
offering an interpretation of it, creating a bright line
test separating speech subject to legislative proscription
from speech immune from government interference. Turning to
the language of the logician to describe a conclusion he
48 Meiklejohn, Alexander, Free Speech and Its Relation
to Self-Government, New York: Harper & Bros. (1948) .

124
found to be illogical, Meiklejohn described the Court's
interpretation of the First Amendment as tantamount to
altering the language to read, "Congress ... is forbidden
to destroy our freedom except when it finds it advisable to
do so."49
Meiklejohn interpreted Holmes' reversal of his position
a few months later in a similar case as a sign of the
justice's discomfort with the test he had only recently
designed in Schenck. In Abrams v. United States.50 Holmes'
dissenting opinion characterized the distribution of fliers
opposing military intervention in Russia after the defeat of
the German Empire as protected speech. Holmes based his
dissent to the majority opinion, which again upheld the
defendants' conviction, on the lack of immediate danger. A
related consideration was Holmes' distinction between speech
conveying thought and speech inciting action. "Only the
emergency that makes it immediately dangerous to leave the
correction of evil counsels to time warrants making any
exception to the sweeping command [of the First Amendment].
. . . Of course I am speaking only of expressions of
opinion and exhortations"51
Meiklejohn found Holmes' dissent in Abrams to offer a
distinction without a difference. He could not
differentiate between speech-action and speech-thought, and
49 Id. at 30.
50 250 U.S. 616 (1919) .
250 U.S. 616, 631 (1919) (Holmes, dissenting).
51

125
in any case thought conduct should be protected as long as
it involved the public interest. That excluded, of course,
speech that was criminal conduct, such as Holmes' example of
shouting "fire" in a theater.
Meiklejohn illustrated his belief in the need for more
than just the likelihood of immediate danger to justify
stifling speech by his agreement with Justice Louis
Brandéis' concurring opinion in Whitney v. California.52
Much of Brandéis' opinion was the kind of language
Meiklejohn often used:
Those who won our independence . . . believed that
freedom to think as you will and to speak as you
think are means indispensable to the discovery and
spread of political truth; that without free
speech and assembly discussion would be futile;
that with them, discussion affords ordinarily
adequate protection against the dissemination of
noxious doctrine; that the greatest menace to
freedom is an inert people; that public discussion
is a political duty; and that this should be a
fundamental principle of American government.53
In Whitney. Brandéis also suggested a modicum of
protection for controversial speech by the addition of a
requirement that speech pose a threat of "serious" injury,
and this is what Meiklejohn stressed in his interpretation
of the opinion.
The fact that speech is likely to result in some
violence or destruction of property is not enough
to justify its suppression. There must be the
probability of serious injury to the State. Among
free men, the deterrents ordinarily to be applied
to prevent crime are education and punishment for
274 U.S. 357 (1927) .
53 274 U.S. 357, 375 (1927) (Brandéis concurring),
overruled by Brandenburg v. Ohio. 395 U.S. 444 (1969).

126
violations of the law, not abridgment of the
rights of free speech and assembly.54
Meiklejohn welcomed Brandéis' willingness to blunt the
legislative power to limit speech and was heartened to note
that Holmes had joined Brandéis' opinion. He soberly noted
that Anna Whitney's conviction for membership in the
Communist Party had been upheld, though on technical
grounds. Still, he savored the small advance he saw in the
case and described the result as requiring that the danger
be not only "clear and present, but, also, terrific."55
The idea that speech should present a serious threat
before it could be curtailed matched Meiklejohn's continuing
theme that ideas cannot be dangerous until they become so
closely coupled with action that further discussion becomes
impossible. That view, he believed, would prevent unpopular
speech from being cut off unilaterally on the basis of its
content. Once expressed, ideas should be free to be weighed
in open discussion, and could be punished only if they
created an emergency that "renders the community incapable
of reasonable consideration of the issues of policy which
confront it."56
Clearly, Meiklejohn strongly supported Brandéis'
position in Whitney. If Holmes, who had joined in Brandéis'
concurrence, had taken a similar view in Schenck, that case
54 274 U.S. 357, 378 (1927) (Brandéis concurring).
55 Meiklejohn, Free Speech and Its Relation to Self-
Government, at 46.
56
Id. at 49.

127
may have been decided differently, but Meiklejohn's writings
never delved into the possibility that Schenck was only a
routine criminal case lacking any genuine free speech issue.
Meiklejohn's failure to consider the case from another angle
was perhaps due to his lack of legal training. One
commentator, however, lays the blame for the controversy
over Schenck squarely on the Court. Former Oregon Supreme
Court justice Hans Linde has raised the possibility that the
Court's characterization of Schenck as a speech case may
have been misleading and that the decision did not represent
the disaster for free speech that Meiklejohn believed it to
be.57
Linde has suggested that a decision in Schenck could
have been rendered simply on the basis of whether or not the
prosecution of the defendants for obstructing draft-related
activities was a valid exercise of the federal police power.
A few years after Meiklejohn's death, Linde wrote that the
Court had made little progress in clarifying the relative
weight to be accorded to the ideas expressed or the
conditions that had provoked their expression. "Fifty years
after the birth of 'clear and present danger,' the Court's
position remains ambivalent about the circumstances and
intrinsic content of expression in First Amendment
analysis. "5S
57 Linde, Hans, "'Clear and Present Danger' Reexamined:
Dissonance in the Brandenburg Concerto," 22 Stanford L.
Rev. 1163 (June 1970).
58
Id. at 1163.

128
Linde's position received support several years later
in a book by former Frankfurter law clerk Alexander Bickel.
Bickel wrote that evidence that Justice Brandéis was not
satidfied with his interpretation of the speech issue at the
time of the World War I cases may be found in his own words.
The justice, Holmes' colleague on the Court when Schenck was
decided, confided his misgivings about two decisions
concerning Socialist speech during that Court term in a
discussion with Frankfurter after the latter joined the
Court. "I have never been quite happy about my concurrence
in the Debs59 and Schenck cases," he told his junior. "I had
not then thought the issues of freedom of speech out. I
thought at the issue, not through it. "60
Meikleiohn Takes on Chafee—and vice Versa
Meiklejohn, as we have noted, was criticizing the
"clear and present danger" test more than a dozen years
after its architect's death. By that time, Chafee's famous
First Amendment work, Free Speech in the United States, was
in its second edition, and still supportive of Holmes'
position. In Free Speech and Its Relation to Self-
Government, Meiklejohn identified passages from Chafee's
5 In Debs v. United States. 249 U.S. 211 (1919), Eugene
V. Debs, labor activist and Socialist Party presidential
candidate, had also had a conviction based on his anti-war
activities upheld by the Court.
60 Quoted in Alexander Bickel, The Supreme Court and the
Idea of Progress, New Haven: Vale University Press (1978),
27.

129
book sympathetic to Holmes' test and quoted at length to set
up his own rebuttal.
The true boundary line of the First Amendment
[Chafee writes] can be fixed only when Congress
and the Courts realize that the principle on which
speech is classified as lawful and unlawful
involves the balancing against each other of two
very important social interests, in public safety
and in the search for truth. Every reasonable
attempt should be made to maintain both interests
unimpaired and the great interest in free speech
should be sacrificed only when the interest in
public safety is really imperiled, and not, as
most men believe, when it is barely conceivable
that it might be slightly affected."61
Meiklejohn gave scant acknowledgment to Chafee's
incorporation of the slight enlargement of protection for
speech not yet a serious threat offered by Brandéis. Then,
getting right to his difficulty with the Holmes-Chafee
formulation and writing in absolutist terms, Meiklejohn
zeroed in on the balancing of speech and safety.
Where in that document [the Constitution] are we
told of the balancing of which Mr. Chafee speaks?
In what words is it said that if the search for
truth imperils public safety, that search shall be
checked, its freedom may be abridged? There are
no such words . . . the logic of the plan of self-
government, as defined by the Constitution,
decisively rejects the "balancing" theory which
Mr. Chafee advances.62
Chafee reviewed Meiklejohn's book the following year in
the Harvard Law Review.63 Without saying so directly,
Chafee seems to have regarded Meiklejohn's effort as an
61 Meiklejohn, Free Speech, p. 56; quoting Chafee, Free
Speech, p. 35.
62 Meiklejohn, id. at 56.
63 Chafee, Jr., Zechariah, 62 Harvard Law Review 891
(1949).

130
little more than an inconsequential academic exercise, and a
flawed one at that.
In what he calls his main objection to the book, Chafee
chides Meiklejohn for failing to stick to his main
strength—an argument for free speech conducted on the basis
of wisdom and policy. Instead, he complains, Meiklejohn
builds his entire argument on a constitutional premise that
is not only doubtful, but unrealistic.
Whereas the supporters of these [suppressive]
measures are genuinely worried by the dangers of
Communism, he [Meiklejohn] refuses to argue that
these dangers are actually small. Instead, his
constitutional position obliges him to argue that
these dangers are irrelevant. No matter how
terrible and immediate the dangers may be, he
keeps saying, the First Amendment will not let
Congress or anyone else in the Government try to
deal with Communists who have not yet committed
unlawful acts. It is hopeless to use reasoning
like this in order to win votes against [anti¬
communist legislation]. Such a view may be
courageous, but it won't work. . . . Inasmuch as
most of the . . . book is an attack on the Court's
interpretation of the Constitution, his view of
that document is bound to be useless in the
practical task of opposing current suppressive
measures.64
Chafee is also highly critical of Meiklejohn's casual
historical treatment of the origins and meaning of the First
Amendment. He argues at length that early supporters of
freedom such as John Milton advocated freedoms far beyond
Meiklejohn's crabbed view confining freedom to speech on
political matters. In truth, it was Milton who took the
64
Id. at 894-5.

131
narrow view.65 In his famous Areopaaitica. Milton argued
strenuously for a broad, general freedom of speech, but
promptly excluded such freedom for Roman Catholics, atheists
and other nonbelievers.66
Chafee, however, takes strongest exception to
Meiklejohn's slicing private speech on topics such as art
and science off from First Amendment protection.67 Chafee
complained that Meiklejohn's shunting aside scholarship, art
and literature as private speech left too many vital
interests to the watered-down protection of the Fifth
Amendment, where they could be restricted after following
procedures required by due process. Observing that "there
are public aspects to practically every subject,"68 Chafee
asserted that political information comes from many sources:
"[The citizen] can get help from poems and plays and novels.
No matter if Shakespeare and Whitehead do seem very far away
from the issues of the next election."69 Repeating a common
complaint about Meiklejohn's restricted view of the First
Amendment, Chafee wrote, "Valuable as self-government is, it
is in itself only a small part of our lives. That a
65 Stevens, John D., Shaping the First Amendment,
Beverly Hills, Calif.: Sage Publications (1982), 28.
66 John Stuart Mill's essay, On Liberty, came far closer
to Meiklejohn's view in its argument that a free and
unfettered marketplace of ideas is the better way to
ascertain the truth.
67 Id. at 895-8.
68 Id. at 900.
69 Id.

132
philosopher should subordinate all other activities to it is
indeed surprising."70 Many years later Meiklejohn did come
around to a more inclusive theory of First Amendment
protection,71 but he remained wedded to his original public
speech theory for quite some time.
By 1961, Meiklejohn had obligingly expanded the realm
of protected speech to include "novels and dramas and
paintings and poems,"72 since they may at least indirectly
contribute to the political education of the voter. Even
so, Meiklejohn never attempted to be exhaustive in his more
expansive compilation of expressive activities protected by
the First Amendment. The items he offered for protection
amounted only to suggested examples of what might be
included.73 He left it to the courts to determine exactly
what the boundaries of protected speech might actually be.
Despite Meiklejohn's late attempt to address Chafee's
complaint of underinclusiveness, at least one pair of
commentators, Ronald Collins and David Skover, remains
unhappy with Meiklejohn's expansive 1961 view, flailing the
70 Id.
71 For instance, by the time of Free Speech's revision
and republication as Political Freedom, [New York: Harper &
Bros. (I960)] Meiklejohn had added, "No one can doubt that
in any well-governed society, the legislature has both the
right and the duty to prohibit certain forms of speech.
Libelous assertions may be, and must be forbidden and
punished." (p.21).
72 Meiklejohn, Alexander, "The First Amendment is an
Absolute," 1961 Sup. Ct. Rev. 245, 263 (1961).
73
Id. at 262.

philosopher for abandoning his original principles and
setting the stage for the protection of erotic excesses:
133
Incredibly, no less a noble figure than Alexander
Meiklejohn played a role in moving American
constitutional law away from the old Madisonian
utopia and toward the new pornotopia. When . . .
he extended his self-governance rationale for
First Amendment protection beyond the political
debates of the town meeting to literary and
artistic expression, Meiklejohn opened the gates
of free speech in such a way that they might never
be closed to pornography. . . . This self-
authority, of course, glides all too readily from
speech to art and music, and then to erotica and
beyond in the American commercial entertainment
culture.1,74
Chafee's final criticism of Meiklejohn's attack on the
clear-and-present-danger doctrine centers on the practical,
with the law professor taking Meiklejohn to task for failing
to appreciate that even if Holmes had agreed with
Meiklejohn's absolutism, he would not have had enough
followers on the Court to establish the protections he did.
He reminded Meiklejohn that many who had spoken freely in
the last 30 years would have been jailed but for the Holmes'
fashioning of a position the Court could agree on. He
likened Meiklejohn's complaints in the face of the
protections won for speech to the mother who scolded the
lifeguard who rescued her son for losing his cap. "[A]
judge who is trying to establish a doctrine which the
74 Collins, Ronald K.L. and David M. Skover, "Changing
Images of the State: The Pornographic State", 107 Harvard
Lav Rev. 1374 (1994), 1391.

134
Supreme Court will promulgate as law cannot write like a
solitary philosopher."75
Chafee's criticism ate at Meiklejohn for the remaining
fifteen years of his life, judging from the frequency with
which he mentioned it in letters to friends and others. In
a 1957 letter to former University of Chicago president
Robert M. Hutchins, he described the review as having set
the two men "intellectually at war."76 That "war" ended
three weeks after his letter to Hutchins when Chafee died.
Later that summer, shortly after the end of the Supreme
Court's 1957 term, Meiklejohn wrote to Justice Hugo Black.
Black had mentioned both Meiklejohn and Chafee in his
dissent in Yates v. United States.77 and Meiklejohn still
had his old adversary on his mind. "I'm glad you brought
Chafee in too. I wish it were not too late to get you to
arbitrate between him and me."78 The next year, Meiklejohn
wrote to the editor of the Harvard Law Review about a
reprint of another article, and, nine years after the fact,
mentioned, "I still have in mind the possibility of
commenting on his [Chafee's] review of my argument."79
75 Chafee, Book Review, at 901.
76 Meiklejohn to Robert M. Hutchins, Jan. 19, 1957,
Meiklejohn Papers, Box 17, Folder 11.
77 354 U.S. 298, 340 (1957) (Black, dissenting).
78 Meiklejohn to Hugo Black, July 28, 1957, Meiklejohn
Papers, Box 5, Folder 2.
79 Meiklejohn to Editor, Harvard Law Review, Feb. 12,
1958, Meiklejohn Papers, Box 16, Folder 4.

135
Nothing ever came of Meiklejohn's plan to reply to his
major critic, but in the last three or four years of his
life, Meiklejohn's references to Chafee became more
frequent. The most caustic, and uncharacteristically so,
was the first of two written to Felix Frankfurter during
that period. In that letter, Meiklejohn wrote that he had
found Chafee's approach to the First Amendment "not
philosophically adequate." He did not go into detail, but
also questioned Chafee's intellectual abilities, assuring
Frankfurter that his evaluation was based on "long
acquaintance," going back "even before his entrance to
college."80 Meiklejohn doubtless understood the gravity of
the statements he was making, for he asked Frankfurter to
keep his remarks confidential, the only time he did so in
their long history of correspondence.
By the time he wrote the second letter mentioning
Chafee to Frankfurter in 1963, one of his last, Chafee had
been dead six years. Meiklejohn was well past 90 himself
and no longer as vexed by the criticism. "I thought long
about answering Chafee," he wrote to the retired justice,
"but chiefly on personal grounds could never bring myself to
80 Meiklejohn to Felix Frankfurter, Mar. 17, 1961,
Meiklejohn Papers, Box 13, Folder 20. As Dean at Brown,
Meiklejohn was acquainted with the Chafee family, one of the
most prominent in Providence, even before Zechariah, Jr.
entered the university in the fall of 1904. Chafee's
parents are regularly listed as benefactors of Brown
University in various reports in the university archives.
Chafee wrote that he first saw Meiklejohn in October 1904
when he was a freshman at Brown. 62 Harv. Law Rev. 891
(1949).

136
do it."81 Meiklejohn never entirely forgot the acrimony
between himself and Chafee, however. In one of the last
handful of letters he wrote only three months before his own
death, he admitted ruefully to his friend Harry Kalven, Jr.,
"I've always been sorry I didn't answer Chafee's review.
But I wasn't ready then. I suppose it wouldn't be decent
now that he's no longer in the land of the living."82
Chafee, however, was by no means Meiklejohn's only
critic. Other supporters of the "clear and present danger"
test also assailed Meiklejohn's analysis in the years
following Chafee's initial attack. Political scientist
Wallace Mendelson, writing three years after Chafee,83 also
attempted to distinguish between what he called "discussion-
words" and "force-words." Apparently referring to the
portion of Holmes' opinion in Schenck that described
proscribable words as words with "all the effect of
force,"84 Mendelson identified "force-words" as "utterance
calculated to beget illegal action. "85 At this point,
81 Meiklejohn to Felix Frankfurter, Mar. 9, 1963,
Meiklejohn Papers, Box 13, Folder 20.
82 Meiklejohn to Harry Kalven, Jr., Sept. 2, 1964,
Meiklejohn Papers, Box 21, Folder 36.
83 Mendelson, Wallace, "The Clear and Present Danger
Test—A Reply to Mr. Meiklejohn," 5 Vanderbilt Law Review
792 (1952).
84 249 U.S. 47, 52 (1919) .
85 Mendelson, "The Clear and Present Danger Test", at
794 (emphasis in original).

137
penciled notes on Meiklejohn's copy of the article86 begin
to indicate the extent of his disagreement with the
professor's comments.
Boldly underlining "calculated" in Mendelson's text,
Meiklejohn wrote in the margin, "Does this mean 'intended'
or 'likely to cause'?" A few lines further along in the
same paragraph, Mendelson described "[t]he danger test [as]
a rhetorical form for expressing the idea that utterance is
inviolate up to that final point where it ripens into . . .
action." Bracketing the "utterance is inviolate up to"
portion of the sentence, Meiklejohn then scribbled
"Schenck!" next to it, likely indicating that he believed
Schenck's expression was still short of illegal action. In
the last sentence of the comment, Mendelson turned to
another more recently decided advocacy case, Dennis v.
United States87 and explained that the defendant in that
case had been convicted for "'teaching and advocacy' that
approximated an armed conspiracy against established
government—not for pedagogical exposition of Marxian
ideas." Again, Meiklejohn seized on Mendelson's choice of
words, underlining "approximated" and noted marginally that
this meant "not reached or equaled."
In each instance, Meiklejohn's handwritten comments
indicated his view that Mendelson's choice of language was
subject to an interpretation that allowed for several shades
86 Meiklejohn Papers, Box 32, Folder 6.
87 341 U.S. 494 (1951) .

138
of meaning. Meiklejohn did not read Mendelson's article as
an unqualified endorsement of Holmes' position and its
subsequent application. None of Meiklejohn's notations
indicated that he thought Mendelson was in error. Instead,
Meiklejohn focused on a specific word that in two of the
three instances he provided alternate definitions for and
that, if substituted, would indicate that much of the
expression punished under the clear and present danger test
actually qualified as speech rather than incitement. In the
third instance, the phrase Meiklejohn isolated appeared to
him to be broad enough to allow protection for the
expression he found in Schenck. Meiklejohn never published
a reply to Mendelson. His papers contain no further
elaboration on his comments, nor any mention to his
correspondents of any desire to defend his position. Having
gone to the trouble to make them, but no further,
Meiklejohn's jottings apparently demonstrated to his own
satisfaction that Mendelson's comments were susceptible to a
different reading, and so were not criticism so much as at
least a partial vindication of his position.
Meiklejohn's Constitutional Sources
That Meiklejohn's view of the First Amendment is
radically different than the traditional view as expressed
by the Supreme Court and represented by Chafee is obvious.
What is not nearly so obvious is the source and bases of
Meiklejohn's analysis. Meiklejohn's initial writing on the
First Amendment was in large part a philosophical

139
explanation of the utility of the amendment and an attack on
the "clear and present danger" test. Most of his subsequent
law review articles were criticisms of Supreme Court
decisions that used Holmes' test to restrict speech and
provided little additional support for the citizen's right
to speak freely. Meiklejohn's clearest explanation of his
theory of free expression was not published until 1961 in
one of his last written works, and the fact that his
clearest explanation came so late may have much to do with
the lack of understanding that surrounded his earlier
writings.
The first leg of Meiklejohn's theory, formed from the
provisions that establish the people's constitutional
authority, relies heavily on the very nature of American
democracy, as distinct from the British system. "The . . .
feature . . . that marks it [the U.S. Constitution] off from
British political institutions, is that it is established,
not by the legislature, but by the people."88 Thus
established, the "authority to govern" is not in the hands
of the legislature, but is retained by the "people
themselves, acting as members of a corporate body
politic. "89
88 Meiklejohn, Alexander, "The First Amendment Is an
Absolute," 1961 Supreme Court Review 245 (Philip Kurland,
ed.), 265. Meiklejohn apparently draws this from the
preamble to the U.S. Constitution: "We, the people of the
United States ... do ordain and establish this
constitution."
89
Id. at 253.

140
The second part of Meiklejohn's theory rests in the
provisions of the constitution that establish government
agencies subordinate to a sovereign people. Articles I, II
and III, which provide for the three branches of government
also delineate and delimit their specific powers. In one
very important provision, however, Article I, Section 2,
vests the electoral power in the citizenry. Meiklejohn, of
course, finds that to be a power vital to self-government.
It is a provision that also leads to the ultimate part of
the theory.
The constitutional provisions that limit the powers of
government are the third part and key to Meiklejohn's
theory. Collectively described as the Bill of Rights,
Meiklejohn saw them as a "Bill of Powers and Rights."90 He
singled out two of the first ten amendments to the
Constitution for special treatment.
Meiklejohn believed that the First and Tenth Amendments
occupy a unique position in the Bill of Rights. He accorded
them special status as the only two of the original ten
amendments that affirmatively invest sovereign rights in the
people. He believed that the Tenth Amendment's language
reserving to the people powers not otherwise delegated to
government agencies that they had created set the people
apart from and defined them as superior to those
functionaries who were meant to do the people's bidding.
Similarly, the First Amendment prohibition against
90
Id. at 254.

141
abridgement of speech was designed to protect speech of
"governing importance," and by extension, electoral power,
from governmental caprice: "The First and Tenth Amendments
protect the governing "powers" of the people from
abridgement by the agencies which are established as their
servants. "91
The remaining amendments held no special significance
for Meiklejohn beyond the strictures they placed on the
potential for governmental abuses. He clearly accepted the
common view of scholars and judges that the middle eight
amendments operated as simple checks on the powers of
government and established no governing rights for the
people as a body. "The Second through Ninth Amendments
limit the powers of the subordinate agencies in order that
due regard shall be paid to the private 'rights of the
governed' . ",2
Why Free Speech?
In 1942, as Meiklejohn was beginning to formulate his
theory of absolute protection for speech of "governing
importance," he had not yet met justice Hugo Black. The
justice, however, had already begun thinking along the same
lines as the professor and endorsed protections for comment
about public issues in dramatic terms. In dissent in an
otherwise forgettable case, Black observed: "Freedom to
speak and write about public questions is as important to
91 Id.
92
Id.

142
the life of our government as is the heart of the human
body. In fact, this privilege is the heart of our
government! If that heart be weakened, the result is
debilitation; if it be stilled, the result is death."93
Meiklejohn's rhetoric was never quite that ringing. In
his zeal to protect speech on public affairs, he was
originally quite willing to concede that the First Amendment
was not absolute, and didn't protect all speech, even all
speech about government. When he first broached the idea
that some speech about government was protected and some was
not, the clarity of the concept was not immediately apparent
due to the paradoxical nature of the language he chose to
express it. Meiklejohn asserted that the First Amendment
"does not forbid the abridging of speech. But, at the same
time, it does forbid the abridging of the freedom of
speech. "94
To help clear up the confusion that sentence
engendered, Meiklejohn often turned to the analogy of the
traditional New England town meeting. He regarded the First
Amendment pragmatically, worth little as an abstract
concept. Its value, he believed, lay in its utility as a
means to an end. With that end staked out as democratic
self-government, Meiklejohn saw the original town meeting
Milk Wagan. Drivers Unicn v. Meadcwmoor Dairies, 312
U.S. 287, 301-02. (1941) (Black dissenting).
94 Meiklejohn, Political Freedom, at 21.

143
concept as democracy in its simplest and purest form.95
Citizens came to town meeting as both governors and the
governed, Meiklejohn believed, and exercised their right of
speech and its corollary, the need to hear. Speaking and
hearing, taken together, allowed for an exchange of ideas
that bolstered the citizens' electoral power by making
decisions on the basis of a complete set of facts and
opinions.
The primary purpose of the First Amendment is
. . . that all citizens shall, so far as possible,
understand the issues which bear upon our common
life. That is why no idea, no opinion, no doubt,
no belief, no counterbelief, no relevant
information, may be kept from them. Under the
compact upon which the Constitution rests, it is
agreed that men shall not be governed by others,
that they shall govern themselves.96
Hearing and evaluating the opinions expressed imparted
understanding of the issues to the electorate so that the
vote of the group would be the best way to determine the
composite will of the people. To make sure that vote was
based on a complete understanding, Meiklejohn could not set
limits on the content of political speech.
Shall we, then, as practitioners of freedom,
listen to ideas, which, being opposed to our own,
might destroy confidence in our form of
government? Shall we give a hearing to those who
hate and despise freedom, to those who, if they
had the power, would destroy our institutions?
Certainly, yes! Our action must be guided, not by
their principles, but by ours. We listen, not
because they desire to speak, but because we need
to hear. If there are arguments against our
theory of government ... we the citizens, the
95 Id. at 24-7.
96
Id. at 75.

144
rulers, must hear and consider them for
ourselves.97
Meiklejohn described the principal reason for the
assembly as a means of getting business done with efficiency
and dispatch. With an emphasis on the procedural aspects of
the town meeting, he attempted to show how the moderator
wields considerable power in regulating speech in order to
accomplish the governing purpose of the meeting efficiently.
He described how attendees cannot speak until recognized by
the moderator, and when they are called on they must confine
their remarks to the business at hand. A person unwilling
or unable to abide by those rules "shows himself to be a
boor, a public nuisance, who must be abated, by force, if
necessary. ",8
Meiklejohn used the town meeting analogy to clarify the
seeming incongruity of his willingness to abridge speech
while forbidding the abridgement of the freedom of speech.
A grasp of the difference requires reference to his
conception of the highest purpose of speech, the
facilitation of self-government, which Meiklejohn held
sacred. Equating self-government with freedom, Meiklejohn
thus advocated absolute protection, or "freedom" for speech
with a governing purpose. Speech on other matters or
repetitive political speech not promoting efficient self-
id. at 57.
Id. at 25.

government could be regulated, or abridged, especially if
doing so would enhance self-government.
145
Outside of the town meeting setting, the citizen as
elector is still the top public official, Meiklejohn
believed. As such, he thought, the intent of the First
Amendment is to prohibit subordinate agencies, that is,
formal government in the persons of elected officials, from
abridging the educational value of speech.
Just so far as, at any point, the citizens who are
to decide an issue are denied acquaintance with
information or opinion or doubt or disbelief or
criticism which is relevant to that issue . . .
the result must be ill-considered, ill-balanced
planning for the general good. It is against that
mutilation of the thinking process of the
community against which the First Amendment to the
Constitution is directed. The principle of the
freedom of speech springs from the necessities of
the program of self-government. It is not a Law
of Nature or of Reason in the abstract. It is a
deduction from the basic American agreement that
public issues shall be decided by universal
suffrage." (emphasis in original)
Meikleiohn's Limits on Free Speech
Meiklejohn also clearly rejected individualistic and
subjective justifications for free speech. His
interpretation of the First Amendment required the
subordination of individual rights of expression to a
collective process of public deliberation. The idea that
the First Amendment offers any protection for those self-
actualized individuals for whom self-expression is an
essential component of a full and happy life was anathema to
Meiklejohn.
99
Id. at 27.

146
The idea that self-expression was an important personal
value first gained currency during the early 1950s when
psychologist Abraham Maslow attempted to answer the ultimate
question, 'Why?' by studying human motivation to play roles,
make plans and allow themselves to be socialized.100 At the
end of the decade, a student of Maslow's who studied
expressive participation in society defined the motive for
self-actualization as the tendency of humans to strive to
reach their fullest potential in their particular social
environment by seeking to "develop all its capacities in
ways which serve to maintain or enhance the organism."101 To
Meiklejohn, service of such a personal goal was not a proper
use of First Amendment protections. Even self-actualized
individuals whose outlet happens to be politics are not
necessarily assured of the opportunity to participate,
Meiklejohn believed. To him, an equal treatment of ideas
does not require all voices being heard, as long as each
idea has a representative voice. Once representation of all
relevant ideas was established, the speech of remaining
would-be speakers could be safely abridged.
The First Amendment ... is not the guardian of
unregulated talkativeness. It does not require
that, on every occasion, every citizen shall take
100 Maslow, Abraham H. , "Self-Actualizing People: A Study
of Psychological Health," in W. Wolff (ed.), Personality
Symposium, No. 1, New York: Gruñe and Stratton, (1950).
101 Rogers, Carl R. , "A Theory of Therapy, Personality,
and Interpersonal Relationships as Developed in the Client-
Centered Framework," in S. Koch (ed.), Psychology: A Study
of a Science. Vol. 2, Formulation of the Person and the
Social Context, New York: McGraw-Hill (1959), 64.

147
part in public debate. Nor can it give assurance
that everyone shall have the opportunity to do so.
If . . . at a town meeting twenty like-minded
citizens have become a "party," and if one of them
has read to the meeting an argument which they
have all approved, it would be ludicrously out of
order for each of the others to insist on reading
it again. . . . What is essential is not that
everyone shall speak, but that everything worth
saying shall be said. . . . And this means that
though citizens may, on other grounds, be barred
from speaking, they may not be barred because
their views are thought to be false or
dangerous.102
While Meiklejohn advocated the freedom of the town
meeting members to hear, debate and decide the issues as
they see fit, he put the procedural rules that guide the
process beyond the reach of democracy. A prominent modern
proponent of the view that procedural strictures are not
subject to change by democratic will is Cass Sunstein, who
views democratic self-government to be itself a fixed
structure of "deliberation." Like Meiklejohn, he believes
that democracy is designed to deposit "governing authority
in the people themselves."103 Owen Fiss took a similar view
in a law review article a few years earlier: "The approach I
am advocating is not concerned with the speaker's autonomy,
102 Meiklejohn, Political Freedom, at 26-7. This view
has been criticized in recent years as dangerously elitist.
Multiculturists view the testimonial and self-assertive
components of speaking as valuable in and of themselves.
What appears to others as a Babel of disparate voices are
viewed as cultural artifacts worthy of respect without the
intermediation of conventional hierarchies. For a complete
discussion of the political attack on the view espoused by
Meiklejohn, see William A. Henry, III, In Defense of
Elitism, New York: Doubleday (1994), 66-8.
103 Sunstein, Cass R. , "Free Speech Now," 59 U. Chi. L.
Rev. 255 (1992), 313-14.

148
real or effective, but with the quality of public debate.
It is listener-oriented."’04 This view was given judicial
recognition in White v. City of Norwalk.105 a case that
reached the paradoxical conclusion that a town meeting of
voters discussing public business is not a "public forum"
for First Amendment purposes, but only an apparatus for
carrying out a specific task. First Amendment
"collectivist" Robert Post, who agrees with Meiklejohn's
town meeting analogy, has described the special role of
democracy that leads to the town meeting's authoritative
structure as "managerial."106
A contrasting view is held by First Amendment scholars
Laurence Tribe and Kenneth Karst, who deemphasize the
utilitarian and celebrate the individualistic. Karst sees
great value in letting anyone and everyone take the floor
without regard for procedural efficiency, observing that
"even the repetition of speech conveys the distinctive
message that an opinion is widely shared," which is of
"great importance in an 'other-directed' society where
opinion polls are self-fulfilling prophecies."107 Tribe
dismisses Meiklejohn's approach as too intellectually and
104 Fiss, Owen M. , "Free Speech and Social Structure," 71
Xowa L. Rev. 1405 (1986), 1416-17.
105 900 F. 2d 1421, 1425 (9th Cir. 1990).
106 Post, Robert C. , "Between Governance and Management:
The History and Theory of the Public Forum,"34 UCLA L. Rev.
1713 (1987), 1714.
107 Karst, Kenneth, "Equality and the First Amendment,"
43 U. Chi. L. Rev. 20 (1975), 40.

149
rationally centered as a means to a systemic end. Tribe is
open to the accommodation of even the emotive role of
expression, which he regards as an end in itself: "What,
finally, of speech as an expression of self? As a cry of
impulse no less than as a dispassionate contribution to
intellectual dialogue?"108 Tribe regards self-realization,
in fact, as the ultimate goal of the First Amendment's free
speech clause. He describes the self-government rationale
as only an intermediate step. Self-government is important
for Tribe because "political participation is valuable in
part because it enhances personal growth and self-
realization. "109
Meiklejohn, however, was adamant that the First
Amendment did not forbid the regulation of the act of
speaking, as opposed to proscription based on speech
content, in the interest of procedural utility and
efficiency. Where Karst and Tribe found value in the very
process of speech and political participation, Meiklejohn
gave short shrift to the speech act itself and regarded it
as simply a tool to achieve informed democratic decisions.
By discounting the value to the individual of the act of
speaking, Meiklejohn left only associated conduct available
for First Amendment consideration. In his rejection of the
circumstances that surrounded the "clear and present danger"
Tribe, Laurence, American Constitutional Law,
Mineóla, N.Y.: Foundation Press (1978), Sec. 12-1, at 577.
109
Id. at 578.

150
test, Meiklejohn feared that emphasis would fall on the
content of the speech that would be used to justify punitive
measures against those who crossed the test's line.
Adoption of the more liberal standard of regulation favored
by Meiklejohn, which allowed all politically related speech
without regard to content and only punished illegal conduct,
was doubly useful during times of emergency when self-
fulfillment faded in importance. At these times, an
emphasis on content illustrated most vividly the importance
of diverse opinions to the selection of the proper course of
action. Using the recently concluded war in Europe as an
example of the importance of speech content to democracy, he
demonstrated the clarity of his argument:
If, then, on any occasion in the United States it
is allowable to say that the Constitution is a
good document it is equally allowable, in that
situation, to say that the Constitution is a bad
document. If a public building may be used in
which to say, in time of war, that the war is
justified, then the same building may be used in
which to say that it is not justified. If it be
publicly argued that conscription for armed
service is moral and necessary, it may likewise be
publicly argued that it is immoral and
unnecessary. If it may be said that American
political institutions are superior to those of
England or Russia or Germany, it may, with equal
freedom, be said that those of England or Russia
or Germany are superior to ours. These
conflicting views may be expressed, must be
expressed, not because they are valid, but because
they are relevant. If they are responsibly
entertained by anyone, we, the voters, need to
hear them. To be afraid of ideas, any idea, is to
be unfit for self-government.110
110
Meiklejohn, Political Freedom, at 27-8.

151
How, then, to protect speech necessary to participate
in government amid the clutter, if not by assigning it a
value based on its perceived threat to the peace and status
quo, as Holmes attempted to do? Lest absolute protection
for speech extend infinitely and cheapen the protections for
political discourse, or worse, obscure it, Meiklejohn turned
to the dichotomy of "public" speech and "private" speech.
Public speech he defined as any speech encompassing
politics, such as matters of policy or performance of public
officials. That type of speech, the speech of the "citizen
who is planning for the general welfare,"111 he claimed was
to be accorded absolute protection or "freedom" in the
interests of a workable, self-governing democracy, as
outlined in the First Amendment and the "privileges and
immunities" clause of the Fourteenth Amendment. Private
speech, on the other hand, the speech of the "merchant
advertising his wares, or a paid lobbyist fighting for the
advantage of his client"112 is speech that concerns only
private interests, such as communication on personal
matters. Private speech also included the vast middle
portion of expression, between the political and commercial
where speech on arts, literature and social issues is found.
Here, Meiklejohn's formulation runs aground on a serious
practical problem: how to decide where to draw the necessary
bright line between public and private speech.
111 Id. at 34-7.
112
Id. at 37.

152
A biting criticism of Meiklejohn's failure to suggest
any guidelines for testing what speech gualified as public
and what speech might be subject to reasonable regulation
appeared just before Meiklejohn's own 1961 effort to map out
some sort of limits. Kenneth Karst, a frequent critic whose
disagreements have been noted above, observed sarcastically,
"Some absolutes are thus equipped with elastic
boundaries."1'3 It appears that Meiklejohn saw some validity
in such criticism, for handwritten notes containing excerpts
from Karst's article are among Meiklejohn's papers.114 It
further appears that he attempted to address the complaint,
for in his own Supreme Court Review article the next year,
Meiklejohn acknowledged the lack of historical support for
his public/private separation, but argued that the
underlying principle of self-government was capable of
adaptation to changing conditions as perceived shortcomings
became understood.115
Meiklejohn did not accord full freedom of speech to
nonpolitical expression, but gave it a lesser status to
which he assigned protection under what he called the
"liberty" of speech.”6 This "liberty" of speech, Meiklejohn
113 Karst, Kenneth, "Legislative Facts in Constitutional
Litigation," 1960 Supreme Court Review 75 (1960), 79.
114 Undated handwritten notes, Meiklejohn Papers, Box 69,
Folder 8.
115 Meiklejohn, Alexander, "The First Amendment is an
Absolute," 1961 Sup. Ct. Rev. 245 (1961), 263-64.
116 Meiklejohn, Political Freedom, at 36.

153
believed, was subject to regulation and restriction and
deserving of only secondary protection provided under the
due process provisions of the Fifth and Fourteenth
Amendments.117 Instead of the absolute protection that he
advocated for political expression, Meiklejohn only
suggested protection from arbitrary governmental
interference for other forms of expression, a system that he
believed preserved personal liberties.118 Government could
regulate such expression, he argued, upon demonstrating
sufficient need through the requirements of due process.
The Supreme Court itself early on suggested one method
of distinguishing among rights guaranteed by the
Constitution, well before Meiklejohn's critics and even
before Meiklejohn himself. The concept of "preferred
freedoms" was offered in dissent by Justice Harlan Fiske
Stone in a 1942 case119 and stood for the proposition that
First Amendment freedoms should have special protections and
receive special consideration from the courts. Stone
suggested that speech was in general preferred to other
freedoms, but he did not refine that position to create a
hierarchy of speech protections using the public/private
117 For a similar perspective on the political ("public
business") aspect of the dichotomy, see George Anastaplo,
The Constitutionalist: Notes on the First Amendment, Dallas:
Southern Methodist University Press (1970) .
118 Meiklejohn, Political Freedom, at 36-7.
119 Jones v. Opelika. 316 U.S. 584, 608 (1942); reversed
on rehearing, 319 U.S. 103 (1943).

154
justifications Meiklejohn supported. The idea that some
constitutional freedoms were more important than others and
were thus entitled to deferential treatment is, however,
closely akin to Meiklejohn's view that some speech ranks
higher than other speech and should be treated differently
under the law. The argument for extra consideration when
balancing the scales of justice struck one writer as
comparable to "the butcher who . . . weighs his thumb along
with the meat.11,20 Occasionally, however, "preferred
freedoms" has seemed to mean more than just "something
extra," becoming what we would describe today as a First
Amendment due process argument, that laws abridging basic
freedoms are to be presumed unconstitutional, throwing the
burden of proof onto the government to justify its action.
If public speech were regarded as a special form of
communication, as Meiklejohn believed it should be, it would
be eligible for Stone's preferred treatment as the only type
of speech protected by the First Amendment. Other forms of
expression, or private speech, would not enjoy preferred
status and would not deserve the same degree of judicial
scrutiny, as Meiklejohn intended.
Stone's approach had its vocal opponents, however, led
by Justices Felix Frankfurter and Robert Jackson. Denying
any constitutional basis for the new stature imparted to the
First Amendment, they railed against its use in a number of
120 Pritchett, C. Herman, Civil Liberties and the Vinson
Court, Chicago: University of Chicago Press (1954), 249.

155
cases in the mid- to late-1940s. One of the strongest
indictments of the "preferred freedoms" approach was its
characterization as "a novel, iron constitutional
doctrine,"121 by Justice Frankfurter. The description was
intended pejoratively but was one that would have
undoubtedly delighted Meiklejohn, as it represented exactly
the interpretation he believed the First Amendment deserved.
That Meiklejohn drew a distinction between types of
speech at all has made his approach an attractive target for
critical legal theorists in recent years. Most recently,
the provocatively titled essay, "There's No Such Thing as
Free Speech and It's a Good Thing Too," in the book of the
same title,122 argues that is no satisfactory means to
distinguish between speech to be protected and speech not to
be accorded protection. Stanley Fish proceeds from the
position that speech on any subject never occurs in a
vacuum, but is always colored by a political agenda that
makes absolute free speech impossible. Speech, Fish
believes, comes about either to promote a particular
position or to oppose another, and is never, therefore,
value-free. At the outset, one or more viewpoints are
excluded by the speaker, an action that itself creates a
referent for the remaining viewpoint and gives the speech
121 Craig v. Harney, 331 U.S. 367, 391 (1947)
(Frankfurter, J. dissenting).
122 Fish, Stanley, There's No Such Thing as Free Speech
and It's a Good Thing Too, New York: Oxford University Press
(1994). The essay first appeared in the Boston Review, Feb.
1992, at 3.

156
about it a particular construction. Because of the
inability to create a value-free agenda, Fish believes,
every group will eventually move to curtail speech "not
because an exception to a general freedom has suddenly and
contradictorily been announced, but because the freedom has
never been general and has always been understood against
the background of an originary exclusion that gives it
meaning. "123
Louis Worth Jones, a semanticist who knew Meiklejohn
during his last years in California, conceives of speech as
the two-way exchange of primarily political opinion that
Meiklejohn called "public" speech. Jones thinks speech to
be only the kind of verbal expression contained in a
dialogue. "Speaking" is the term Jones uses to describe
part of what Meiklejohn conceived of as "private" speech.
Jones calls "speaking" the one-way self-gratifying
expression of the monologue that neither incorporates or
even recognizes another point of view.124
Under either the Meiklejohn or Jones view, much speech
appears private in that it is intended to serve a private
goal initially, although it concerns highly charged social
issues with considerable public policy implications.
Focusing on the larger implications of the context and not
strictly on the physical setting of the speech, Meiklejohn
Id. at 104.
124 Louis Worth Jones, San Mateo, Calif., letter to the
author, July 28, 1995.

157
would consider such speech public and protected absolutely.
In such a case, it may be impossible to avoid some sort of
"balancing" between liberty and authority. Discussion of
whether balancing varied interests is constitutionally
permissible is rife with disagreement. Debate on the issue
was particularly intense during the last years of
Meiklejohn's life when he was too old to join the fray.125
At about the same time as the balancing controversy was
raging during the early 1960s, historian Leonard Levy was
also examining the public speech perspective of American
political theory. In his widely discussed work, Legacy of
Suppression, Levy found that Colonial thinkers clearly
justified protections set down for speech and the press in
the context of their contributions to democratic self-
government :
The second essayist, [James Alexander] in
championing the "salutary effects" of "Freedom of
Debate," wisely suggested that the public should
be exposed to every kind of controversy, in
philosophy, history, science, religion, and
literature, as well as in politics, because in the
5 See, e.g., the long-running struggle between law
professors Wallace Mendelson (pro-balancing) and Laurent
Frantz (anti-balancing) in the pages of several leading law
journals. Frantz, "The First Amendment in the Balance," 71
Yale Law Journal 1424 (1962); Mendelson, "On the Meaning of
the First Amendment: Absolutes in the Balance," 50
California Law Review 821 (1962); Frantz, "Is the First
Amendment Law? A Reply to Professor Mendelson," 51
California Law Review 729 (1963); Mendelson, "The First
Amendment and the Judicial Process: A Reply to Mr. Frantz,"
17 Vanderbilt Law Review 479 (1964).
Black disagreed with clear & present danger as a type of
balancing not allowed under his absolutist interpretation of
the 1st and 14th Amendments. "[I]t has no place in [their]
interpretation." (Concurrence, Brandenburg v. Ohio. 395 U.S.
444, 449-50 (1969).)

158
course of "examining, comparing, forming opinions,
defending them, and sometimes recanting them," the
public would acquire a "Readiness of Judgment and
Passion for Truth.",26
Using the arguments of logic, Meiklejohn had arrived at
the same conclusion a dozen years earlier when Free Speech
was first published. One of his main themes in the book had
been that the people, as electors, were sovereign and needed
to discuss the issues that faced them freely.127 Relying on
Article I, Section 6 of the Constitution, which provided, in
part, that "for any Speech or Debate in either House,
[members of Congress] shall not be questioned in any other
Place," Meiklejohn reasoned that if the people's
representatives could speak openly, then the people could as
well. No historian, Meiklejohn probably didn't know that
his point had been made, citing the same constitutional
provision, more than a century and a half earlier. Levy
described Meiklejohn's argument for free speech and
attributed it to one John Thomson, who wrote in 1801:
[Citing Article I, section 6] Thomson then
reasoned that if freedom of discussion was
necessary for them, [Congress] it was equally
necessary, indeed more so, for their sovereigns,
the people whom they represented. . . . The
intention of the framers of the First Amendment,
Levy, Leonard, The Legacy of Supression: Freedom of
Speech and Press in Early American History, Cambridge:
Harvard University Press (1960), 137-8. The passage
survived intact in Levy's reworking of the original as
Emergence of a Free Press, New York: Oxford University Press
(1985), 134-5. Meiklejohn was probably unaware of Levy's
accord with his historical perceptions of the justifications
for his views, since he admitted a lack of historical
support for his position as late as 1961.
127 Meiklejohn, Political Freedom, at 36.

159
Thomson concluded, was to guarantee that the
people possessed "the same right of free
discussion" as their agents.12®
Meiklejohn and Broadcasting as Lesser Speech
Among Meiklejohn's types of private speech undeserving
of full constitutional protection, one never managed to
escape his contempt. Broadcast speech continued to
disappoint him, and never won inclusion on the expanded list
of preferred expression. Meiklejohn was well into middle
age when broadcasting outgrew its hobbyist stage. He had
hoped that the new medium would allow citizens to
"communicate with one another freely with regard to the
values ... of common life. It seemed possible that, amid
all our differences, we might become a community of mutual
understanding and shared interests.1,129 Meiklejohn had been
willing to extend First Amendment protection to
broadcasting, had it educated the public. "But never was a
human hope more bitterly disappointed. ... It is not
engaged in the task of enlarging and enriching human
communication. It is engaged in making money. . . . The
radio, as we now have it, is not cultivating those qualities
of taste, of reasoned judgment, of integrity, of loyalty, of
mutual understanding upon which the enterprise of self-
government depends. On the contrary, it is a mighty force
128 Levy, The Legacy of Supression: Freedom of Speech and
Press in Early American History, 296. Citing John Thomson,
An Enquiry, Concerning the Liberty and Licentiousness of the
Press, and the Uncontrollable Nature of the Human Mind
(1801), 20-2.
129 Meiklejohn, Political Freedom, at 87.

160
for breaking them down. It corrupts both our morals and our
intelligence. "130
Given these shortcomings, it is not surprising that not
only did Meiklejohn accord broadcasting lesser protection
under the First Amendment, he supported its regulation in
the public interest. Nor was he alone in that position.
From at least the late 1940s into the 70s, many of
Meiklejohn's contemporaries also supported public-interest
licensing for broadcasting. Two of the earliest were
Meiklejohn's frequent opponent, Chafee,131 and the Hutchins
Commission on Freedom of the Press.132 Even such libertarian
justices as William O. Douglas133 and Hugo Black134 found such
regulation appropriate. As late as 1970, scholar Thomas
Emerson wrote at length in support of licensing.135
That broad support for public interest licensing as
originally conceived may have weakened somewhat in the years
since Meiklejohn's death, however, and his friend Harry
130 Id.
131 Chafee, Jr., Zechariah, Government and Mass
Communications, Chicago: University of Chicago Press (1947),
638.
132 Hutchins Commission, A Free and Responsible Press,
Chicago: University of Chicago Press (1947), 82-3.
133 See Douglas, William 0., The Right of the People, New
York: Doubleday (1958), 76-7. Douglas, however had changed
his mind by the time of his concurring opinion in CBS v.
Democratic National Commitee. 412 U.S. 94, 154 (1973).
134 Black joined the unanimous opinion in Red T.ion
Broadcasting Co. v. FCC. 395 U.S. 367 (1969).
135 Emerson, Thomas I., The System of Freedom of
Expression, New York: Random House (1970), 653-67.

161
Kalven was one of the early dissenters. By the late 1960s,
Kalven had begun to characterize commercial broadcasters as
businesses independent of government. Rather than being
public servants or holding a public trust, he viewed them as
dispassionate observers and critics not beholden to
licensing officials. Kalven had also begun to chide
broadcasters, saying "the industry has under-estimated its
legal position and given up too soon."136
Kalven remains in the minority, however. Broadcast
licensing in the public interest continues largely
unchanged, almost 70 years after the Radio Act became law.
The American Civil Liberties Union, whose entire raison
d'etre is the protection of constitutional rights, supports
the Fairness Doctrine.137 If regulatory mechanisms put into
place by Congress by the Radio Act of 1927 and the
Communications Act of 1934 were actually perceived as
serious impediments under contemporary constitutional
interpretation, one would assume that the courts would have
rectified the situation by now. Whatever the reason that
public interest licensing of broadcast stations continues,
broadcasters labor under regulations without counterparts
that similarly affect other communication media, providing a
vivid contemporary illustration of Meiklejohn's
differentiation among types of speech.
136 Kalven, Jr. , Harry, "Broadcasting, Public Policy and
the First Amendment," 10 J. Law & Econ. 15 (1967), 24.
137 Dorsen, Norman, "Talking Liberties," Civil Liberties
(Winter 1990-91), 16.

162
Communism. Free Speech and World War II
Free speech in an abstract historical context was one
thing, but quite another when applied to unpopular positions
at a time when the nation was convulsed by war. While
Meiklejohn was formulating the arguments for the value of a
variety of viewpoints to a healthy democracy in the mid-
1930s that formed the basis for Free Speech after World War
II, he was not criticized. It was not until he committed
his beliefs to print during the war years and thereafter
that controversy erupted.
In the fall of 1943, shortly after American military
power had begun to turn the tide of the Second World War in
favor of the Allies, Meiklejohn and his free speech theories
shifted out of the realm of academic debate. With Nazi
Germany in retreat on the Western Front, Americans'
attention turned to the recent successes of the Red Army in
turning back the Germans on the Eastern Front. Attention
also turned to Communism's supporters in the United States.
The dogged resistance of the Soviets, which had succeeded in
stopping Germany's elite and most experienced troops at
Stalingrad the previous winter had made a valuable
contribution in sapping the strength of the Wehrmacht.138 It
also began to cause concern in the United States, however,
since that turn of events and the meeting among Franklin D.
Roosevelt, Winston Churchill and Joseph Stalin in Teheran
138 Morison, Samuel Eliot; Henry Steele Commager and
William E. Leuchtenburg, A Concise History of the American
Republic, New York: Oxford University Press (1977), 643.

163
that year made clear that the Soviet Union would expect to
play a role in post-war Europe after the defeat of the Axis
170
Powers.
Never one to shrink from controversial issues since his
wartime experiences at Amherst, especially when the First
Amendment was in any way involved, that fall Meiklejohn
accepted an invitation to debate the issue of free speech
for fascists with the general secretary of the American
Communist Party, former accountant Earl Browder, in the
pages of the New York-based left-wing magazine, New Masses.
The topic of Meiklejohn's first essay, entitled "Unity With
the Communists?"140 was the failure to seek common ground
for united action between anti-fascist liberals and anti¬
fascist American Communists.
Meiklejohn described the only reason for a debate
between the two groups as a disagreement over tactics rather
than goals. He saw nothing incongruous about the aims of
the Party in fighting fascism and the fundamental principles
of the United States Constitution. Instead, Meiklejohn
found the conflict in the means liberals and Communists
chose to achieve their ends, particularly in the Communists'
willingness to deny fascists the right of free speech. The
conflict came, he wrote, between Communist "class-struggle"
theory and democratic political action.
139 Id. at 662.
140 Meiklejohn, Alexander, "Unity with the Communists?"
New Masses, Oct. 13, 1943, 16.

164
Americans are committed to the belief that even
the fiercest and most fundamental conflicts among
us can be settled by peaceful political action.
Our majorities and minorities, our parties in
power and our parties out of power, are working
together as well as working in opposition to one
another. But the Communist Party seems . . .
unable or unwilling to accept that political
faith. It believes that our American society is
at war within itself and that, therefore, tactics
or warfare are necessary in dealing with its
problems. . . . War is deceit. That is why the
Communist asks for himself in America civil
liberties which, when occasion arises, he refuses
to others. He would like the liberals to be at
peace with him while he is at war with them.141
Browder's rebuttal acknowledged Meiklejohn's war
mentality charges and pressed ahead with further calls for
the "suppression of American fascists."'42 In contrast to
Meiklejohn's calmly reasoned arguments, thoroughly grounded
in logic, he escalated the rhetoric. The professor's
arguments were all but ignored amid the pleas for the
"complete, merciless, and systematic destruction of fascism
in all its aspects . . . including its propaganda of anti-
Semitism and racism. ... We cannot cover the vicious
Hitlerite anti-Semitism being spread in America with the
mantle of 'free speech'"143
Meiklejohn's response seven weeks later re-argued his
original point that all points of view were entitled to a
hearing as part of the American system of peaceful
141
Id. at 17.
142 Browder, Earl, "Mr. Browder Comments," New Masses,
Oct. 19, 1943, 18.
143
Id.

165
democratic action.144 Instead of rising to Browder's bait
and recounting the evils of fascism, Meiklejohn repeated his
original charges in more pointed terms:
The basic postulate of peaceful, political, public
discussion is not "freedom of action." It is
"freedom of thought" and of the "expression" of
thought. And it is that postulate which Mr.
Browder's "war-mentality" forbids him to accept.
As I read the record of the American Communist
Party it has wished to deny to those Americans
whom it calls "fascists" the freedom of speech
which it claims for its own members.145
Browder once again ignored Meiklejohn's appeal to
accept the common starting point of rational discussion for
concerted action against fascism. In seeking only
collaboration to defeat supporters of the Axis Powers, he
ridiculed Meiklejohn's defense of free speech, calling it
"some other aim which they [liberals] put higher" and
accused him of being soft on fascism: "Perhaps we do not
know yet who is really for and who is against the complete
destruction of fascism-Nazism. "146
Meiklejohn's papers contain evidence of only one
reaction to the exchange between Meiklejohn and Browder in
the pages of New Masses. The debate attracted the attention
of three of Meiklejohn's former students at the Experimental
College, who wrote a lengthy 750-word letter to the editor
144 Meiklejohn, Alexander, "Free Speech for Fascists?"
New Masses, Dec. 7, 1943, 4.
146 Browder, Earl, "Mr. Browder Replies," New Masses,
Dec. 7, 1943, 5.

166
supporting Browder's position.147 In the letter, Carroll
Blair, Nathan Berman and Sol Kobrin said that Meiklejohn
himself taught that there should be no free speech for
fascists.
Meiklejohn prepared an equally lengthy response, but
there is no evidence that the letter, dated only two days
later and handwritten on his own stationary was ever mailed
or published. It remains, unfolded, among Meiklejohn's
papers, next to a clipping of the letter that prompted it.
Near the beginning of his response, Meiklejohn gets right to
the point:
You say that I taught you that there should be no
free speech for fascists. I never did. I may have
told you that I was willing to fight to the death
against fascism. That was true. And it is still
true. But the statement does not mean what you
take it to mean. The questions still remains,
"What is the most effective way of fighting
fascism?" And I still believe that, under
American conditions, free speech is a more
effective weapon than is suppression of free
speech.148
Consistent with Meiklejohn's position that even fascist
views were deserving of consideration as part of the process
of running a democracy was his position that point of view
was an invalid reason for discrimination among messages.
The defeat of the Axis spelled the end of fascism as a
political threat. Democracy had triumphed in Europe, but
Communism became the new national concern as American
15,
147 "On Free Speech," Readers'
1944, 3.
148 Meiklejohn Papers, Box 67,
Forum, New Masses,
Folder 3.
Feb.

167
soldiers rushed from Japan to Korea in early September 1945
to try to discourage Soviet troops, who had rolled across
Manchuria, from driving south of the 38th Parallel.149
The perceived threat of Communism to democracy took on
even greater urgency when Stalin's puppet North Korean
regime, using Soviet equipment, invaded the South on June
25, 1950.150 Four days later, after the fall of Seoul, the
world united against communism as the United Nations
Security Council voted to oppose the Communists'
aggression.151 Within three months, U.N. forces had driven
the Communists back across the Parallel. Over the next two
weeks they penetrated deep into North Korea, headed for the
Chinese frontier. Victory seemed assured.
Success stopped there, however, and worry about China's
response was replaced by real fear as hundreds of thousands
of Chinese Communist forces suddenly poured across the Yalu
River onto the Korean peninsula in mid-October.152 By the
end of January 1951, United Nations troops had been pushed
back, far south of the Parallel. By November they had
battled back north of the line, forcing a stalemate in the
Korean Conflict that dragged on for another 20 months.153
149 Leckie, Robert, Conflict, New York: G.P. Putnam's
> (1962),
33.
150 Id.
at
41-6.
151 Id.
at
54-5.
152 Id.
at
169.
153 Id.
at
231-95

168
At home, the decision by Red China to help in the move
to occupy South Korea compounded the alarm already raised by
the expansion of Communism into Central Europe and by the
position of the Soviet Union as one of the four powers
occupying the largest portion of defeated Germany. In early
1948, Czech Communists seized control of the government. It
was a short step from there to concerns that Communists had
infiltrated government and other public positions in the
United States. Such fears energized Republican members of
the House Committee on Un-American Activities, which had
been established in 1938 to nettle the Roosevelt
Administration.154 The Committee held dozens of hearings as
part of the federal.government's security program,
instituted by President Harry S. Truman's Executive Order
9835 in March, 1947.155
At about the same time, Alger Hiss, a former State
Department official, was named as a former Communist by
former Party member Whittaker Chambers and convicted a year
and a half later of lying to Congress about his former
association. In mid-February 1950, barely a month after
Hiss' conviction, Sen. Joseph R. McCarthy questioned the
loyalty of 81 unnamed State Department employees on the
floor of the Senate. That list was soon pared to nine, and
eventually all were exonerated. After it became apparent
Morison, et al., A Concise History of the American
Republic, 618.
155
Id. at 684.

169
that the Hiss fiasco was the result of flawed testimony and
dirty tricks used to secure a conviction, a Senate committee
chaired by Democrat Millard E. Tydings was encouraged by
President Harry Truman to examine the excesses of Sen.
McCarthy and the House Committee on Un-American Activities.
The Tydings Committee blasted the senator, his tactics and
his findings in a report issued in July 1950. The report,
however, was undermined by grim news from the weeks-old war
in Korea, and had little influence on public opinion.156
Congressional investigations and counter-investigations
into Communism and its accusers captured the majority of the
public's attention, but efforts to root out Communists in
government had actually begun three years before the
shooting started in Korea. The issue of loyalty oaths arose
in 1947, and by late 1949 a case was before the Supreme
Court examining the constitutionality of loyalty oaths for
labor leaders. When the Court's decision in American
Communications Association v. Douds157 was handed down in
early May 1950, only six weeks before the Communist invasion
of South Korea, the justices had left undisturbed the
convictions of a half-dozen union organizers who had
challenged Congressional authority to allow a requirement of
pledges of loyalty from individuals employed by businesses
engaged in interstate commerce. Meiklejohn's response to
156 Fried, Richard M., Nightmare in Red, New York: Oxford
University Press (1990), 17-26.
157
339 U.S. 382 (1950).

170
the Court's holding in Douds was one of acute
disappointment. He had taken heart from Brandéis' tempering
of the clear-and-present danger test in Whitney156 by adding
the requirement of seriousness. But to Meiklejohn, Douds.
which required only a simple finding of the undisputed
existence of imminent danger, looked like a retreat to a
former application of the test.
What Douds also marked was the emergence of the
balancing of competing values in First Amendment questions,
in place of the preferred position analysis formulated by
Justice Stone in 19 4 3.159 In his balancing analysis, Chief
Justice Fred Vinson acknowledged the considerable value of
political rights protected under the First Amendment, but
protection of trade on a national scale was characterized as
a national security issue and tipped the scale in favor of
the loyalty oath requirement. The heart of Vinson's opinion
in Douds balanced the value of a lessened threat to commerce
posed by the removal of Communist labor leaders against "the
necessary effect of discouraging the exercise of political
rights protected by the First Amendment.''160
The Douds opinion sent Meiklejohn to his writing desk.
The result was his first law review article, published in
158 Whitney V. California. 274 U.S. 357, 378 (1927). Note
53, supra.
ISO
Jones v. Opelika. 316 U.S. 584, 608 (1942); rev'd on
rehearing, 319 U.S. 103 (1943).
160
Id. at 393.

171
the Indiana Law Journal .,6' Meiklejohn perceived an
"instability" in the opinions of the Court where the
Holmesian formula was applied, such as Schenck and Whitney.
"The meaning of that formula seems to shift from case to
case, from decision to decision. It began with 'any
danger,' then shifted to many forms of 'serious danger,' and
now seems to have drifted rapidly back to its starting
point. That lack of stability, of dependableness, seems to
indicate that the formula itself is rooted in confusion,
that it has no intelligible constitutional basis."162
Meiklejohn was further convinced that Holmes' test had just
the opposite of its intended effect. He believed that its
shifting interpretation had provided no useful guidance for
the evaluation of speech or conduct that might be considered
threatening and thus opened all critical speech to possible
censure. "Instead of 'preventing' evils, it has created
them," he wrote. "Its promise of definiteness and certainty
of judgment, given by the words 'clear and present' has been
sadly disappointing."163
As he was preparing his article, Meiklejohn turned to
the language of a just-released opinion by Judge Learned
Hand for support of his view. In a case that went up to the
Supreme Court on appeal the following term, Hand had called
161 Meiklejohn, Alexander, "The First Amendment and the
Evils That Congress Has a Right to Prevent," 26:4 Indiana L.
J. 477 (Summer 1951).
162 Id. at 482 .
163
Id. at 493.

172
Holmes' test "a way to describe a penumbra of occasions,
even the outskirts of which are undefinable, but within
which . . . the courts must find their way if they can."164
Meiklejohn's agreement with Hand's assessment was complete,
and strongly expressed: "It is intolerable that the most
precious, most fundamental, value in the American plan of
self-government should depend, for its defense, upon a
phrase which has no dependable meaning."165 Despite Hand's
criticism of the clear-and-present danger test, the circuit
court upheld the convictions of the Communist appellees,
paving the way for the appeal to the High Court and
additional attacks on the test by Meiklejohn.
In his law review article commenting on the Douds
decision, Meiklejohn was also concerned that the Court had
devalued the First Amendment, putting it on the same
constitutional footing as commerce. In deciding Douds. the
Court had focused on the perceived threat to interstate
commerce as a justification for its decision to uphold the
decision against the appellees. Given Meiklejohn's already-
noted distaste for things commercial, his analysis was not
surprising. For his attack, he turned to his common
practice of asking rhetorical, after-the-fact questions that
provided their own answers.
Are freedom of commerce and freedom of belief on
the same qualitative level of value? Is, then,
164 United States v. Dennis. 183 F.2d 201, 212 (2nd Cir.
1950) .
165 26 Indiana Law Journal 477 (1951), 483.

173
our freedom of belief and utterance and
association merely one of the many national
values, coordinate in importance, which, added
together, make up the total of the common defense
and general welfare? Or ... is political
freedom so basic to the theory and practice of
self-government that, under the Constitution, it
is granted a priority over all other interests, a
superior and unique status of its own?"166
The Douds opinion, which had so inflamed Meiklejohn,
had been handed down on May 8, 1950. Only three months
earlier Republican Sen. Joseph McCarthy, speaking in
Wheeling, West Virginia, had brandished a "list" of 57
Communists in the U.S. State Department.167 Less than two
months later the first shots were fired in Korea. Against
this backdrop, the U.S. Supreme Court took up the issue of
Communist subversion again.
Concerned primarily with the constitutionality of
loyalty oaths, the Douds case had concerned the views of
totalitarian groups only tangentially, but the next term, in
Dennis v. United States.168 the Court confronted Communism
directly. In Dennis. the issue involved actual pro-
Communist speech, not simply a refusal to swear allegiance
to the United States, as in Doudsâ–  The U.S. Department of
Justice had begun to prosecute the east coast leadership of
the U.S. Communist Party in 1948, winning indictments
against a dozen top party officials. Eugene Dennis and his
associates were convicted of treason under the Smith Act
166 Id. at 481.
167 Fried, Nightmare in Red, at 123.
168 341 U.S. 290 (1951) .

174
after a trial of more than four months. On appeal, the U.S.
Court of Appeals for the Second Circuit affirmed.169
The facts of Dennis are significant because the
indictments alleged a conspiracy, not to commit
revolutionary acts, but to form groups to teach and advocate
the necessity of the violent overthrow of government. The
issue, then, was not action, but the expression of Communist
political views.
Two main avenues of thought were open to the Court in
deciding Dennis. One, a conservative, substantive due
process-oriented approach, would have relied on Gitlow v.
New York.170 Gitlow. a 1925 Supreme Court decision, upheld a
criminal statute that declared speech advocating the
overthrow of government illegal. The Court ruled that such
categorization of a class of speech as inherently unlawful
was a reasonable exercise of the police power. The
circumstances of the speech were unimportant. Danger was
not an issue; the case turned entirely on whether the speech
was of the sort that the statute prohibited.
The second possible line of thought followed the
venerated clear-and-present danger test, which would presume
the protected status of all speech. Restrictions would be
allowed only when the speech occurred under circumstances
that created an undisputed and imminent danger of illegal
action or was actually accompanied by violence. This test,
169 183 F.2d 201 (2nd Cir. 1950).
170 268 U.S. 652 (1925) .

175
with a twist, had been employed by Judge Learned Hand in his
review of Dennis.
In Dennisâ–  Hand required that the threat be serious, as
Brandéis had suggested in Whitney. and introduced
probability of occurrence as an additional factor. Hand
wrote, "... [CJourts must ask whether the gravity of the
'evil', discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the
danger."171
The Court decided on both the Gitlow and "clear and
present danger" approaches. Nodding to the conservative
categorization of speech doctrine, Chief Justice Fred Vinson
reasoned that government need not wait until the 'evil' was
on the verge of being carried out successfully before it
could be stopped. He wrote that government awareness of
attempts "to indoctrinate its members and commit them to a
course whereby they will strike when the leaders feel the
circumstances permit" is "a sufficient evil for Congress to
prevent.1,172
Using Hand's conception of clear-and-present danger,
Vinson said that courts must consider whether the
seriousness of the potential result, though unlikely,
justified punishing the speech that advocated it. In
adopting Hand's "gravity of the evil" construction, Vinson
reached back to the trial judge's charge to the jury that
171 183 F. 2d 201, 215 (2nd Cir. 1950).
172 341 U.S. 494, 509 (1951).

176
they could not convict unless they found that the
petitioners intended to overthrow the government as soon as
possible. Vinson wrote that the instruction "does not mean
. . . that they would not strike until there was certainty
of success. What was meant was that the revolutionists
would strike when they thought the time was ripe. We must
therefore reject the contention that success or probability
of success is the criterion."173
Both Hugo Black and William 0. Douglas dissented
vigorously. Douglas agreed that the danger of communism was
a valid factor in weighing the threat, but not communism on
a global scale. He focused on the impotence of the U.S.
Communist Party, belittling its members as the "miserable
merchants of unwanted ideas,"174 who posed no threat at all
and thus were outside the purview of the clear-and-present
danger justification for suppression. The Party's
activities were confined to the teaching of Marxist-Leninist
theory, which was speech alone without any action, he wrote.
Within days of the Court's announcement of its opinion
in Dennisr a group of prominent civil libertarians, among
them Meiklejohn and Chafee, sponsored a nearly half-page
editorial advertisement in the San Francisco Chronicle
excerpting Douglas' and Black's dissents. The prefatory
statement included the reminder that "The right to differ
173 Id. at 510.
174 Id. at 589 (Douglas dissenting) .

177
from the majority view is a cherished privilege of our
democracy. Without it we would have no democracy."175
The Harvard Crimson Debate
Meiklejohn and Chafee's conjunctive stance was limited
to their opposition to the Dennis decision, however. Barely
18 months later, a vehement public disagreement erupted when
Chafee appeared in the pages of the Harvard Crimson as a co¬
author of a letter on the general inadvisability of citing
the Fifth Amendment privilege against self-incrimination
before governmental investigatory committees.176 Chafee and
Arthur Sutherland, a colleague on the Harvard law faculty,
described subpoenaed testimony about one's politics as part
of the "duty of the citizen to cooperate in government."177
Meiklejohn's handwritten comments and later published
response stressed his belief that Congress lacked the
authority to police the thoughts of an individual by
requiring disclosure of his own political beliefs.178
How Meiklejohn obtained a copy of the Crimson issue
containing the Chafee-Sutherland letter is unknown. Neither
Meiklejohn nor his beliefs are mentioned in the letter.
That Chafee may have mailed his old dean a copy is pure
175 Clipping, June 22, 1951, Meiklejohn Papers, Box 59,
Folder 7.
176 Zechariah Chafee & Arthur E. Sutherland, "Self-
Incrimination," The Harvard Crimson, Jan. 13, 1953, 2.
177 Id.
178 Meiklejohn, Alexander, "Educator Attacks Chafee-
Sutherland Doctrine," The Harvard Crimson, Feb. 25, 1954, 3-
4.

178
conjecture, but the penciled underlining and accompanying
comments on one paragraph illuminate one of the areas that
provoked Meiklejohn. Throughout the letter Meiklejohn also
underlined the word "witness," which foreshadowed another of
the points on which he was later to take Chafee and
Sutherland to task. The paragraph that Meiklejohn annotated
heavily appeared near the end of their letter, where Chafee
and Sutherland wrote:
It is not only a legal requirement but a principle
of wisdom and good citizenship for an individual
called before a court, grand jury or legislative
investigating committee to answer questions
frankly and honestly. The constitutional
privilege to keep silent is an exception to the
legal obligation to testify; but even when the
legal privilege is available, there are times when
it is best not exercised.179
Where the letter counseled individuals to "answer
questions frankly and honestly," Meiklejohn drew a heavy
line to the margin, where he wrote "all?" A branch off that
line leads to another question: "Is this what lawyers advise
in political cases?" Here Meiklejohn was identifying the
areas that he believed investigators were forbidden to delve
into. Observations, facts and similar evidence were fair
areas of questioning, but Meiklejohn would brook no
intrusion into the realm of political belief, as he made
clear in his response.180 The point of Chafee and
Sutherland's second sentence in that paragraph drew only a
dismissive "Why?"
179 Chafee and Sutherland, The Harvard Crimson, 2.
180 Meiklejohn, The Harvard Crimson, 4.

179
When Meiklejohn received the Crimson issue carrying the
Chafee-Sutherland letter is also unknown, but his rebuttal
was not published for more than a year. When it was it
appeared, not as a letter to the editor, but as part of a
news story with a five-column headline and that ran over two
Meiklejohn's first point clarifies why he had
underscored the word "witness" throughout the Chafee-
Sutherland letter. His response also confronts the authors'
opinion that invoking the Fifth Amendment is evidence of
poor judgment and poor citizenship. In the first part of
his letter, under the subhead "The Legal Side," Meiklejohn
argues not the law, but from logic that no one, not just
defendants, should be compelled to give testimony against
their own interests:
These [third party] witnesses are, with respect to
the testimony, subject to that final authority of
the judge of which the letter speaks. But, in a
court of justice, is the defendant under the same
authority? Presumably, he, too, is capable of
being a witness. He may have information which
prosecution and judge and jury could use for the
making of a just decision. May he, then, be
summoned to the witness stand and, at the
discretion of the judge, be required to tell what
he knows? Surely not! ... In our criminal
procedure ... a suspect or a defendant himself
... is the ultimate judge as to whether or not
he shall testify.'82
Continuing to argue philosophically, Meiklejohn applied
logic to Chafee and Sutherland's advice to testify when
181 Meiklejohn, The Harvard Crimson, 3-4.
182
Id. at 3.

180
asked that they described as "a principle of wisdom and good
citizenship." This paragraph, which he had marked heavily
on his own copy, he found completely illogical:
What guidance does one draw from a general
principle which, at the specific point in
question, is recognized as outlawed by the
Constitution? And further, when we are talking
about "wisdom and good citizenship," the matter at
issue is not a "legal privilege" but a "moral
duty." And that being true, there are no "times
when it is best not exercised.1,183
To make his next point, Meiklejohn turned down the
logical heat and returned to the familiar theme of self-
government. Chafee and Sutherland had stressed that the
principle underlying giving testimony was the duty to
cooperate in government. Girded by his belief that the
power to compel testimony about political beliefs was beyond
Congressional power, Meiklejohn set out what he thought the
duty to cooperate in government meant:
In some sense, that duty is laid upon every one of
us. But in what sense? Does it mean that our
only duty is to obey the laws and submit, without
question, to the authority of our agents who
govern us? That suggestion, which would be valid
in a despotic society, is intolerable where men,
as we say, "govern themselves." ... A refusal to
obey a specific Congressional demand for
information is not, in itself, a refusal to
cooperate in government ... if Congress, in
seeking the information was usurping powers not
granted to it by the Constitution. In that
situation, the duty of cooperation requires the
denial of the illegitimate demand, rather than
submission to it.18i
183
Id.
at 4.
184
Id.

181
That Meiklejohn's pleas for freedom of thought and
belief came at points in the century where such pleas were
themselves considered threatening has been easy to see.
What is often far less obvious is the degree to which he
purposely extended himself to make those points, at the cost
of intense criticism, in times of national crisis. His
letter to the Crimson demonstrates the extent to which he
believed that a popular stance against communism was in
reality a menacing position. In the last, long paragraph of
his rebuttal, Meiklejohn went out of his way to criticize
Chafee and Sutherland for the influence their letter had on
popular perceptions of Congressional investigations.
Calling their conclusions "misleading," and the results
"exceedingly serious," Meiklejohn cited a statement issued
by the Association of American Universities about 10 weeks
after the Chafee-Sutherland letter was published. The
association had voted in favor of a resolution that
membership in the Communist Party "disqualifies an
individual for faculty membership without reference to
sincerity or circumstances, because of the Party's
discipline and the existence of a basic conflict between its
purposes and freedom itself."185 Decrying that decision,
Meiklejohn wrote:
I do not, for a moment, question the good
intentions of the forty-three Presidents who
signed that document. And yet their renunciation
185 Association of American Universities, "The Rights and
Responsibilities of Universities and Their Faculties," Part
IV, Mar. 30, 1953, 9.

182
of the obligations of intellectual leadership
which they owe to the nation, their desertion, in
time of trial, of scholars and teachers whom,
through years of association, they had found
worthy of trust, is one of the most disastrous
actions in the history of American education.
What the letter really means can be most clearly
seen in the sanction which it gives to actions
such as this. And what those actions mean is
revealed by the rising tide of political and
social repression which now threatens the
foundations of our national life.186
Meikleiohn and Chafee's Last Meeting
Chafee never responded to Meiklejohn's criticism of his
position on the Fifth Amendment, but the next time the two
met they were in solid agreement on the value and importance
of dissent. They met in Washington, D.C. on Nov. 14, 1955,
where they appeared together before the Hennings
Subcommittee on Constitutional Rights.187 Late in the
summer, prominent speech advocates and others were selected
by Senator Hennings' staff to receive questionnaires on
possible abuses of the First Amendment's guarantee of free
speech, and from responses to those questionnaires,
witnesses were selected to testify.188
186 Meiklejohn, The Harvard Crimson, 4.
187 Three Democratic senators launched an investigation
of the federal government's security programs shortly after
Democrats regained control of the Senate in January 1955.
Members of the Committee on the Judiciary's Subcommittee on
Constitutional Rights were Chairman Thomas C. Hennings of
Missouri, Joseph C. O'Mahoney of Wyoming and William Langer
of North Dakota. The Subcommittee heard testimony from 53
witnesses over 11 days from Nov. 14-29, 1955. The hearings
were held in Room 318 of the Senate Office Building, the
same room where Sen. Joseph McCarthy had held hearings and
made headlines from 1950-1954.
188 "Speech advocates surveyed on abridgement of
constitutional right," New York Times, Sept. 21, 1955, 20,3.

183
Meiklejohn was the first and Chafee second of the four
witnesses who testified on the first day on the question of
whether and under what circumstances First Amendment
freedoms could be abridged by action of Congress or the
President.189 Both Meiklejohn and Chafee referred obliquely
to government loyalty-security programs and the current
political climate in their passionate defenses of the First
Amendment. In his opening statement, Meiklejohn said:
Whenever, in our Western civilization,
"inquisitors" have sought to justify their acts of
suppression, they have given plausibility to their
claims only by appealing to the necessity of
guarding the public safety. It is that appeal
which the First Amendment intended, and intends,
to outlaw. Speaking to the Legislature, it says,
"When times of danger come upon the nation, you
will be strongly tempted, and urged by popular
pressures, to resort to practices of suppression
such as those allowed by societies unlike our own
in which men do not govern themselves. You are
hereby forbidden to do so. This nation of ours
intends to be free."190
Chafee stressed human nature rather than the plan of
self-government in his prepared remarks:
Human beings do not instinctively desire to live
in a community where freedom of speech prevails.
Instead, they long for a unified society. Even
sophisticated men feel a strong exhilaration when
they march in a procession which keeps perfect
step with everybody singing in unison. Distaste
is a common initial reaction to anybody who is
189 The other witnesses who followed Meiklejohn and
Chafee on the first day were Thomas I. Cook, of John Hopkins
University and Morris Ernst, a member of the New York bar.
190 Meiklejohn, Alexander, testimony before U.S. Senate
Commitee on the Judiciary, Subcommittee on Constitutional
Rights, "Security and Constitutional Rights," Nov. 14, 1955,
84th Congress, 2d Sess., p. 18. Meiklejohn's opening
statement was published in full in I.F. Stone's Weekly on
Nov. 21, 1955, 3-7.

184
very different from the general run. It is
natural for us to feel hostility toward anybody
who expresses unfamiliar opinions or views which
we intensely dislike.191
After a noon recess, the Subcommittee and its chief
hearings counsel, Lon Hocker, reconvened to address
questions to the witnesses. Hocker spoke first, asking
Meiklejohn in convoluted terms whether there were
significance to the recognition of a differentiation in some
parts of the Bill of Rights between peacetime and wartime or
other emergency and the absence of such a differentiation in
the First Amendment. The question gave Meiklejohn the
opportunity to both summarize his interpretation of the
First Amendment and differentiate it from the "liberties"
guaranteed by other parts of the Bill of Rights.
Yes, I think you have indicated a very essential
difference there. The Third and Fifth Amendments
seem to me to be guarding individual rights . . .
in serving his own desires, interests and so on.
These rights are spoken of in the amendments in
question as forms of liberty.
The First Amendment, however, does not seem
to me to be concerned with individual rights in
that personal sense. The First Amendment, as I
interpret it, is concerned with the efficiency of
the governing process; it is designed to let men
speak because we want all ideas to have adequate
expression so that they may be considered by the
body politic.
I am not accustomed to think of the First
Amendment as defending individual rights in the
same sense as the Third and Fifth do; I am
accustomed to think of it as a defense of the
system of government which we have agreed to carry
out.192
191 Id., Zechariah Chafee, Jr., at 79.
192
Id. at 71.

185
Senator O'Mahoney seized on Meiklejohn's last statement
and asked, "What do you mean by a defense of the
Government?"
Meiklejohn replied:
Well, the Government, as I stated it, is the
activity of the general body politic in dealing
with matters of public policy, of deciding what
shall be done for the general welfare; and the
First Amendment says that that process which is
carried on by the people who govern the country,
must not be interfered with.19*
O'Mahoney asked Meiklejohn what the First Amendment
protected against. Meiklejohn told him that it protected
against interference by the government, but added, "But, of
course, I am not so much interested in what it is a
protection against; I am more interested in what it is a
protection for. I would say it is a protection of the
intellectual process."194
Meiklejohn was the only witness who was questioned that
afternoon before the hearing became a discussion among the
senators and the witnesses. Meiklejohn steered clear of the
brief discussion the others had on the clear-and-present
danger test, but toward the end of the session interjected,
"I will just say it again, as an expression that I want on
the record, that the First Amendment is an absolute
statement, in my opinion. I just want that on the
record. "19S
193 Id.
195
Id. at 83.

186
News of and excerpts from Meiklejohn's Senate testimony
were printed in many daily newspapers around the country.196
While senators and others were interested enough in his
views to invite him to Washington, not all appreciated them.
It is, of course, unknown how many readers of his remarks
may have responded, but Meiklejohn saved one small news
item, mounted on a piece of yellow foolscap paper and
labelled "crank sent clipping." The clipping bore several
heavy, angrily drawn lines through Meiklejohn's comments and
the reminder that "38,000 Americans died in Korean War.
They could not enjoy civil rights, could they?" It also
carried the stinging advice, "If you don't like the U.S., go
to Russia. You bum."197
Such criticism did not cause Meiklejohn to waver in his
belief in the purpose of the First Amendment that he had
described to the Hennings Subcommittee. Nearly 84 years
old, Meiklejohn travelled to the East Coast infrequently
after his Senate testimony. Instead, he confined his
activities largely to corresponding with a number of the
influential friends he had accumulated over his lifetime and
writing several more law review articles on the need for
freedom of belief and free discussion of the conduct of
government.
See, e.g., "Free Speech: Prof. Meiklejohn, others
plead for right," New York Times, Nov. 15, 1955, 14, 1.
197 Clipping dated Nov. 15, 1955, Meiklejohn Papers, Box
37, Folder 6.

CHAPTER V
MEIKLEJOHN'S THEORIES AND THE SUPREME COURT
Introduction
Alexander Meiklejohn's relationships with Supreme Court
justices were rarely founded on a similarity of views about
constitutional interpretation and almost always began in a
manner that had little to do with law. In fact, the depth
of Meiklejohn's relationships with the four justices most
closely identified with either the professor himself or his
First Amendment views appear to be inversely proportional to
the extent of their friendship. These relationships ranged
from the close, nearly 50-year friendship he shared with
Felix Frankfurter during which they rarely agreed on any
Court decision, to the apparently nonexistent relationship
with William Brennan, but who is the justice who embraced
Meiklejohn's principles of self-government most consistently
and was able to forge majorities on the Court that rendered
decisions most often in line with the professor's teachings.
Meiklejohn's first friendship with a Supreme Court
justice, Frankfurter, has already been noted briefly. Their
relationship began serendipitously in 1916, long before the
Harvard law professor joined the Court, when both were
honored guests at a college presidential inauguration.
Though Frankfurter was a staunch supporter of Meiklejohn
187

188
throughout the tumultuous Amherst years1 the two men rarely
agreed on the Court's First Amendment posture during
Frankfurter's 23-year tenure.
Meiklejohn's introduction to Hugo Black was undoubtedly
a result of the realization by a mutual friend that the two
shared an interest in law. However, Meiklejohn was a legal
novice, and Black had already been on the High Court for
seven years, so it seems likely that their friend simply
guessed that the softspoken Yankee professor and the
easygoing Southern judge would be affable dinner companions.
Their friendship lasted 20 years, but grew strained toward
the end of that period as Black's absolutist position on the
First Amendment led him to argue for protections for
expression Meiklejohn found unworthy.
No record exists of a personal relationship between
Meiklejohn and William O. Douglas apart from a series of
brief notes the two men exchanged between the mid-1950s and
the early 1960s. With no evidence that the two ever met,
there is no apparent explanation for the sudden appearance
in Meiklejohn's papers of the formal typewritten notes dated
1954 and addressed "Dear Dr. Meiklejohn," other than that
the professor's writings had struck a chord with the
justice. Whether the friendship extended beyond polite
In correspondence with federal judge Learned Hand and
journalist Walter Lippmann, Frankfurter carried on a
passionate defense of Meiklejohn's policies during the
months following his dismissal by the Amherst trustees.
Gunther, Gerald, Learned Hand: The Man and the Judge, New
York: Alfred A. Knopf (1994), 389.

189
correspondence is unclear, but by 1960 Douglas was at least
able to recognize Meiklejohn by sight.
Meiklejohn and William Brennan were of different
generations. More than 30 years apart in age, Meiklejohn
was nearly eighty-five, in declining health and rarely left
California when the middle-aged New Jersey judge joined the
Court. Meiklejohn's papers contain no correspondence from
Brennan, yet despite the lack of even a suggestion that the
two were acquainted, it is clear that they were keenly aware
of each others' writings. Brennan cited Meiklejohn in his
Court opinions on the First Amendment where appropriate, and
Meiklejohn discussed Brennan's early opinions in letters to
several of his friends during the last years of his life.
Meiklejghn, Black and..Cauglas
The nearly 50-year friendship between Meiklejohn and
Frankfurter was forged early in the century while both were
still in education. Meiklejohn was always on the lookout
for an intellectual debate with his fellow academic, and the
fact that they rarely agreed from the time of their first
meeting in 1916 did not trouble Meiklejohn or affect the
personal side of their friendship at all. As outlined
previously, he simply accepted their differences as largely
unresolvable and reveled in the vigor of the opinions
expressed in their correspondence.
Meiklejohn's other close personal relationship with a
Supreme Court justice was one of a very different nature.
The professor did not meet Hugo Black until both were

190
relatively elderly men. Black had spent the first half of
his life practicing law in Alabama and other southern
states. Meiklejohn had spent most of his in New England and
the upper Midwest and their paths did not cross until after
Black arrived in Washington, D.C. in 1937 as President
Franklin D. Roosevelt's first appointment to the Court.2
Meiklejohn travelled to the capital several times a year to
visit his oldest son, Kenneth, after the San Francisco
school closed in 1942 and the elder Meiklejohn and Black met
in late 1944 at dinner at the home of Walton Hamilton.
Hamilton, who had taught Amherst's first law courses in the
early 1920's during Meiklejohn's tenure, had since become an
appellate attorney well-known in Washington legal circles
and a friend of Black's. The two dinner guests realized the
similarity of their views on the First Amendment and other
subjects from the start, as Black recalled more than five
years later.3
A topic of conversation that evening was the relocation
of Japanese-Americans, who were seen by military officials
as a threat to national security, away from the Pacific
Coast in 1942. The constitutionality of the resettlement of
American citizens to inland internment camps where they were
2 Williams, Charlotte, Hugo L. Black: A Study In the
Judicial Process, Baltimore: Johns Hopkins Press (1950), 12.
3 Hugo Black to Meiklejohn, Mar. 6, 1950, Meiklejohn
Papers, Wisconsin State Historical Society, Madison, Box 5,
Folder 2.

191
closely supervised had been a wrenching issue for several
justices when the case reached the Supreme Court in 1944.4
Justices Owen Roberts, Frank Murphy and Robert H.
Jackson each filed his own bitter dissent in the 6-3
decision. William 0. Douglas, the newest member of the
Court, had written a concurrence supporting the evacuation,
but objecting to the detention camps. He was, however,
persuaded by Black and Frankfurter not to publish it. "I
have always regretted that I bowed to my elders and withdrew
my opinion," Douglas wrote near the end of his life.5 He
also described the Court's decision as a "product of
fear . . . not of reasoned law" and concluded that "my vote
to affirm [conviction for violation of the evacuation order]
was one of my mistakes."6 Perhaps surprisingly, Meiklejohn
agreed with the decision, and several weeks later Black
wrote him a note of thanks for his sympathetic support in
the difficult case.7
In the ensuing years, Meiklejohn occasionally veered
away from Black when educational issues were concerned, and
Black eventually went beyond Meiklejohn's own near-absolute
definition of free speech with his absolutism, but they were
of one mind far more often than not, especially during the
4 Korematsu v. United States, 323 U.S. 214 (1944).
5 Douglas, william 0., The Court Years: 1939-1975, New
York: Random House (1980), 280.
6 Id. at 39.
7 Hugo Black to Meiklejohn, Jan. 15, 1945, Meiklejohn
Papers, Box 5, Folder 2.

192
1950s. In the mid-1950s, Douglas also became a friend and
admirer of Meiklejohn's approach to freedom and became
another of the professor's frequent correspondents, in
addition to quoting him in opinions and extra-judicial
writings.
By 1961, Meiklejohn's First Amendment views had become
so similar to those of Black and Douglas that Meiklejohn's
friends began to notice and took to ribbing him about
joining the liberal wing of the Court. Shortly after the
publication of Meiklejohn's last law review article, his old
friend Robert M. Hutchins, now president of the Center for
the Study of Democratic Institutions, wrote:
I am for removing Frankfurter from the bench and
putting you on in his place. I am confident that your
paper will have an important influence on future
decisions in this field. Balancing has got to go.
Your paper will speed it on its way.8
The initial cordiality of Meiklejohn and Black's
relationship hit a rough spot the next time the professor
reviewed Black's work. In 1948, Black wrote the Court's
opinion in a case dealing with church-sponsored religion
classes in an urban Illinois public school system.9 Black
found the schools' program of religion classes held during
the school day an unconstitutional breech of the separation
of church and state, and the Court ordered the classes
8 Robert M. Hutchins to Meiklejohn, Feb. 17, 1961,
Meiklejohn Papers, Box 11, Folder 1.
9 Illinois ex rel. McCollum v. Board of Education of
School District No. 71. Champaign County. Illinois. 333 U.S.
203 (1948).

193
stopped. In dismantling an education program, Black stepped
into an area of Meiklejohn's expertise and one in which his
views were strongly held. Coincidentally, Meiklejohn was
writing an article on exactly that issue at the time, one of
the few that also gave his views on religious freedom.10
The article does not stress the legal aspects of the church-
school controversy, but instead takes the schoolmaster's
philosophical approach to the educational benefits of a
symbiotic relationship between the institutions. Sometime
before the article was published, Meiklejohn wrote to Black,
disagreeing vehemently with the opinion he had written for
the Court. The tenor of the letter is very much like that
of the article that followed it. Both stress the importance
of education, highlighting it as an indispensable precursor
to the scheme of self-government Meiklejohn saw as the
overriding purpose of the First Amendment.
... so far as education is concerned, I cannot accept
the interpretation of the First Amendment which Mr.
Frankfurter and you have taken. For the proper
teaching of our youth it is essential that there be
effective 'cooperation' between the activities of
secular teaching and those which are now so
inadequately carried on by our sectarian groups. It is
true that neither Church nor State should undertake to
do the work of the other. But to so separate them as
to make all cooperation impossible would seem to me,
with respect to the purposes of our national teaching,
very far removed from the intention of the First
Amendment.11
Meiklejohn, Alexander, "Educational Cooperation
Between Church and State," 14 Law and Contemporary Problems
67 (1949).
11 Meiklejohn to Hugo Black, Apr. 8, 1948, Meiklejohn
Papers, Box 5, Folder 2.

194
Meiklejohn's papers contain no response from the
justice. There is, however, a letter from Walton Hamilton,
who had introduced the two men more than three years
earlier. It conveyed the news that Black had been at the
Hamilton's home the day he received Meiklejohn's letter and
had been disturbed by it: "he said that when he was working
on the opinion the thought came to him a number of times
that Alexander Meiklejohn would approve of this opinion. He
takes your strictures very conscientiously."12
The number of federal cases concerning religious
freedom, however, diminished after this point, as the
pursuit of Communist subversives assumed center stage and
occupied an increasing amount of the Court's docket. In the
Second Circuit, no less a figure than civil libertarian
Learned Hand13 was influenced by the five-week old crisis in
Korea as he upheld the convictions of a half-dozen Communist
leaders in Dennis v. United States in August 1950.14 Ten
months later, the Supreme Court upheld Hand's assessment of
the issues and opinion in the case, alluding to the
"inflammable nature" of the see-saw Korean situation.15
Black filed a forceful dissent, including the hopeful
12 Walton H. Hamilton to Meiklejohn, Apr. 21, 1948,
Meiklejohn Papers, Box 15, Folder 2.
13 Gunther, Learned Hand, 657.
14 Dennis v. United States. 183 F.2d 201, 213, (2nd Cir.
1950) referring to the rise of Communism in Europe, 1945-48,
when the Dennis defendants were indicted.
15
Dennis V. United States. 341 U.S. 494, 511 (1951).

195
comment that "in calmer times, when present pressures,
passions and fears subside, this or some later Court will
restore the First Amendment liberties to the high preferred
place where they belong in a free society."16 Black's
reaffirmation of the position of the First Amendment drew
praise from Meiklejohn that fall. The justice responded the
following January: "Undoubtedly, we agree on many, if not
most, basic issues. There can be little if any dispute
between us concerning the most basic of rights, that of
freedom to think, speak and write. For this reason, and
others, I am always glad to hear from you."17
Black and Meiklejohn were aligned again several years
later in opposition to Justice John Harlan's majority
opinion in Barenblatt v. United States.18 which upheld the
contempt of Congress conviction of a young university
professor who balked at answering questions concerning his
past or present membership in the Communist Party. Unlike
the tactics of most who objected to answering the questions
of the House Un-American Activities Committee on Fifth
Amendment grounds against self-incrimination, Barenblatt
claimed a novel constitutional defense. He asserted a First
Amendment claim that the committee's questioning invaded his
rights of free association and claims under the Ninth and
16 Id. at 581.
17 Hugo Black to Meiklejohn, Jan. 30, 1952, Meiklejohn
Papers, Box 5, Folder 2.
18 360 U.S. 109 (1959) .

196
Tenth Amendments that the committee establishment
represented jurisdictional irregularities.’9
In disposing of the First Amendment claim, the handling
of which was the focus of Black's dissent and Meiklejohn's
later law review article, Harlan turned to a balancing of
Barenblatt's personal freedoms against the public interest
in curtailing the threat of Communism.20 Black would not
have the First Amendment treated so cavalierly. He viewed
the interrogatory mission of the committee as prohibited
inquiry into beliefs, ideas and associations, not conduct or
action.
To apply the Court's balancing test under such
circumstances is to read the First Amendment to say
"Congress shall pass no law abridging freedom of
speech, press, assembly and petition, unless Congress
and the Supreme Court reach the joint conclusion that
on balance the interest of the Government in stifling
these freedoms is greater than the interest of the
people in having them exercised."21
Black further charged that the wrong interests were
being balanced, in any case. He did not dispute the
security interest of the nation being on one side of the
equation, but found that Barenblatt's personal freedom was
wrongly placed on the other. Instead, he found, the
19 The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people." The Tenth
Amendment reads: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people."
20 Id. at 126.
21
Id. at 143.

197
people's interest in being free "to join organizations,
advocate causes and make political 'mistakes' without later
being subjected to governmental penalties for having dared
to think for themselves ... to err politically," to be the
proper counterweight.22 In commenting on that analysis the
following year, law professor Harry Kalven, Jr. wrote,
"Justice Black was talking pure Meiklejohn. "23
Kalven had briefly contrasted the core of Justice John
M. Harlan's majority opinion with Black's dissent. Harlan,
Kalven wrote, had weighed Barenblatt's individual privacy
interest against public security, and decided in favor of
security. Black's dissent, he wrote, had made the point
that Harlan had failed to add the public interest in free
speech and association to Barenblatt's side of the
balance.24
Meiklejohn's own analysis, published the year after
Kalven's, makes much the same point. In attacking
balancing, Meiklejohn pulled out all the stops:
It would be hard to find an inference less convincing,
less supported by relevant and accurate fact, than that
on which the verdicts rests. It has many factual
inadequacies. Not the least of them is the suggestion
that, while national security has interest for all the
people, political freedom has interest only for the
individual person whose freedom is at stake.
22 Id. at 144.
23 Harry Kalven, Jr., "Mr. Alexander Meiklejohn and the
Barenblatt Opinion," 27 University of Chicago Law Review
315 (1960), 321.
24
Id. at 321.

198
In a word, the "balancing" theory is, for the opinion,
an unused, and unusable, figure of speech.25
In February 1960, not long after the Barenblatt opinion
was handed down, Black was heard from again, this time in
the first James Madison Lecture at New York University
School of Law. Black used the lecture series' inaugural
event to broadcast his growing belief in the 'absoluteness'
of the language in the Bill of Rights. He did not stop
there, however. After surveying the history of the
document, he sharpened his language into a pointed attack on
the concept of balancing. Black illustrated the folly of
balancing with the fictional case of a property owner whose
right to compensation for the taking of his property was
balanced away by the financially strapped government's need
for the property as part of an expensive defense program.26
Meiklejohn received a copy of Black's lecture in the
mail on March 1 and responded days later with enthusiastic
and glowing praise, calling Black's argument "lucid and
powerful."27 On the cover sheet of Meiklejohn's copy, Black
had written a note explaining the gist of his argument, that
the Founders understood the meaning of the plain language
they used: "To say that a statement does not mean what it
25 Alexander Meiklejohn, "The Balancing of Self-
Preservation Against Political Freedom," 49 California Law
Review 4 (1961), 13.
26 Hugo L. Black, Feb. 17, 1960. Black's 23-page talk
was later published at 35 N.Y.U. L. Rev. 882 (1961) .
27 Meiklejohn to Hugo L. Black, Mar. 13, 1960,
Meiklejohn Papers, Box 5, Folder 2.

199
intends to mean is to reduce all thinking about freedom to
incoherence and futility."28
To that comment, Meiklejohn wrote: "Hurrah! Hurrah!
Your direct and forthright denunciation of F.F.'s denial of
the 'absoluteness1 of the First Amendment will do a lot of
good where such goodness is sorely needed."29
Even as Meiklejohn was congratulating Black, a
blistering attack on the justice's conclusions was being
printed. Under the title, "The Unobvious Meaning of Plain
Words," Yale law professor and former Frankfurter law clerk
Alexander Bickel derided the notion of applying a literal
reading of the Bill of Rights as a "low form of judgment"
and a "nearly automatic act."30 Allowing for such limited
judicial discretion, he added, ignored historical intent.
"Had the framers meant to hand down to the ages a set of
unconditional, definite and certain 'absolute' directives
under which the Supreme Court was to engage in nothing more
than [a] jigsaw effort . . . they would have created an
unworkable system that would have failed and been forgotten
long before now."31
28 Black, speech of Feb. 17, 1960, Meiklejohn Papers,
Box 5, Folder 4.
29 Meiklejohn to Hugo L. Black, Mar. 13, 1960,
Meiklejohn Papers, Box 5, Folder 2.
30 Alexander Bickel, "The Unobvious Meaning of Plain
Words," The New Republic, Mar. 14, 1960, 14.
31
Id. at 15.

200
Black ignored Bickel's criticism, and in a dissent the
following term took another step along the path of
absolutism, this time well beyond Meiklejohn's
interpretation of the First Amendment. In Koniasbera v.
California.32 a case involving a bar applicant who had been
denied admission because of his extremist political
statements, Black argued for the broadest possible
interpretation of "speech" in his opinion. Black's
definition of speech now included incitement of listeners
and everything else short of conduct. "I believe this
nation's security and tranquillity can best be served by
giving the First Amendment the same broad construction that
all Bill of Rights guarantees deserve."33 With the outer
boundaries of what constituted speech now laid out, Black
filled in his idea of the content, declaring that libel,
obscenity and even fighting words were within the "plain
language of the First Amendment."34
Two years later Black even expanded on his belief in
the absolutes he found in the Bill of Rights. In a wide-
ranging and sometimes mockingly self-effacing interview with
New York University law professor Edmond Cahn, Black
repeated in plain words his understanding of the plain words
of the First Amendment:
32 366 U.S. 36 (1961) .
33 Id. at 65.
34 Id. Eventually, Black even opposed laws forbidding
the sale of erotica to minors in Ginsberg v. New York. 390
U.S. 629 (1968).

201
I learned a long time ago that there are affirmative
and negative words. ... I understand that it is
rather old-fashioned and shows a slight naivete to say
that "no law" means no law. It is one of the most
amazing things about the ingeniousness of the times
that strong arguments are made, which almost convince
me, that it is very foolish of me to think "no law"
means no law. (emphasis in original)35
Undoubtedly aware of the intense criticism directed
toward him. Black acknowledged the political incorrectness
of his position a generation before there was such a
concept. With the full realization that his view was shared
by a minority of scholars, Black forged ahead with an
explanation of his activist interpretation:
I confess not only that I think the Amendment means
what it says but also that I may be slightly influenced
by the fact that I do not think Congress should make
any law with respect to these subjects. That has
become a rather bad confession to make these days, the
confession that one is actually for something because
he believes in it. . . . But when I get down to the
really basic reason why I believe that "no law" means
no law, I presume it could come to this, that I took an
obligation to support and defend the Constitution as I
understand it. And being a rather backward country
fellow, I understand it to mean what the words say.
Gesticulations apart, I know of no way in the world to
communicate ideas except by words. ... I believe
when our Founding Fathers . . . wrote this Amendment,
they knew what they were talking about. They knew what
history was behind them . . . and that is about it. It
says "no law," and that is what I believe it means.36
(emphasis in original)
Black didn't invoke Meiklejohn, at least not in this
part of the interview, but he did make a point attacking the
clear-and-present danger test by focusing on the act of
Cahn, Edmond, "Justice Black and First Amendment
"Absolutes": A Public Interview," 37 New York University Law
Review 549 (June 1962), 553.
36
Id. at 553-54.

202
speaking inappropriately, not the content of such speech,
exactly as Meiklejohn would have done. Meiklejohn had
created a town meeting analogy a dozen years earlier to
illustrate conditions under which speech could be regulated.
The governing purpose of town meeting was important to
Meiklejohn1s argument because the appropriateness of speech
to the purpose of the gathering was a major justification
for either allowing or suppressing it.
[D]ebaters must confine their remarks to "the question
before the house." ... If a speaker wanders from the
point at issue ... he may be "denied the floor" or,
in the last resort, "thrown out" of the meeting. . . .
No speaker may be declared "out of order" because we
disagree with what he intends to say.37
When Cahn brought up Holmes' famous aphorism about
shouting fire in a crowded theater and asked if that should
be punishable, Black used Meiklejohn's town meeting analogy,
tailored to fit the moment:
If a person creates a disorder in a theater, they would
get him there not because of what he hollered but
because he hollered. They would get him not because of
any views he had but because they thought he did not
have any views that they wanted to hear there. That is
the way I would answer: not because of what he shouted
but because he shouted.38 (emphasis in original)
Toward the end of the interview, Cahn broached the
question of constitutional protection for obscenity. Black
tried awkwardly to duck the question, but eventually stuck
to his theme of absolute protection for all expression. In
Meiklejohn, Alexander, Political Freedom: The
Constitutional Powers of the People, New York: Harper & Row
(1960), 24-7.
38
Id. at 558-59.

203
doing so, he explicitly served notice that he had gone
beyond Meiklejohn to embrace absolutism unconditionally.
Black was rarely joined in that extreme position and his
view never garnered a majority of votes from the other
members of the Court. Only a year earlier, in 1961,
Meiklejohn had broadened his definition of the type of
expression eligible for First Amendment protection in his
last published work. He had not abandoned his core belief
in the need for some political content in expression before
assenting to First Amendment protection, however. In
including art and literature, even when obscene, Meiklejohn
had been careful to require a finding of "social importance"
or "governing importance" before granting them protection.
Black acknowledged Meiklejohn's concern for protecting
political speech, then tried to explain to Cahn that their
positions did not really differ greatly. He said that he
opposed criminalizing obscenity out of fear that the
category could be too easily expanded to punish political
criticism. Black cited ancient Roman law declaring
criticism of the Emperor to be obscene to make the "slippery
slope argument that without absolute protection, the
prohibited category of obscenity could be expanded to stifle
disfavored political speech. Black regarded Meiklejohn's
39 Meiklejohn, Alexander, "The First Amendment is an
Absolute," 1961 Supreme Court Review, 245,262.

204
inclusion of "governing importance" as establishing a limit
to protected expression, he said.
Word of Black's 1962 interview quickly made its way to
Berkeley, for Black's remarks soon formed the central topic
of Meiklejohn's personal correspondence, although
Meiklejohn's papers contain no copy of Cahn's article. Then
ninety, Meiklejohn never confronted Black with his opinion
that the justice had over-read the First Amendment.
Meiklejohn had made clear the previous year that his
"absolutist" stance on the First Amendment left room for
certain limits: "It may be, I think, taken for granted that
the words 'abridging freedom of the press' . . . are not
'plain words, easily understood.' . . . The courts are
required to determine meaning."40 In notes to other
friends, however, his dismay with Black's position was
clearly stated.
In a handwritten postscript to a letter to Lawrence
Speiser of the American Civil Liberties Union soon after
Cahn's interview was published, Meiklejohn asked, "What, in
heaven's name, has happened to Justice Black?"41 Black's
position was weighing heavily on Meiklejohn's mind that
summer, for several weeks later he mentioned it twice more.
"Black's interview," he wrote to St. John's College
40 Id. at 247.
41 Meiklejohn to Lawrence Speiser, June 18, 1962,
Meiklejohn Papers, Box 27, Folder 31.

205
president Scott Buchanan, "has nearly driven me to drink."42
And a few days later he complained to John Gaus that
"Justice Black is making it hard for his friends. I am an
'absolutist,' but I can't stand for that."43
Meiklejohn and Douglas
Meiklejohn also enjoyed a warm personal relationship
with Supreme Court Associate Justice William 0. Douglas.
Although their friendship was more formal than that between
Meiklejohn and either Frankfurter or Black, Douglas seems to
have been more in tune with Meiklejohn's First Amendment
philosophy.
None of the correspondence between Meiklejohn and
Douglas in the professor's papers contain any reference to
social get-togethers between the two men. In fact, it
appears that as late as the fall of 1954, more than 10 years
after Meiklejohn first met Black, the two had not yet met.
Correspondence between the two began in October of that year
with a typed note from Douglas on Supreme Court stationery:
Dear Dr. Meiklejohn: I am delighted you are taking the
initiative in keeping alive the discussion and
exploration of the Fifth Amendment problems. You have
a sharp-edged mind and your ideas cut deep. I thought
the piece you did in the Chicago Law Review on our
Dennis case was one of the best pieces we have on civil
liberties. I took the liberty of quoting you in my new
42 Meiklejohn to Scott Buchanan, July 12, 1962,
Meiklejohn Papers, Box 6, Folder 17.
43 Meiklejohn to John Gaus, July 18, 1962, Meiklejohn
Papers, Box 14, Folder 3.

206
book An Almanac of Liberty, out next month. All power
to your mighty pen!44
Douglas didn't actually guote Meiklejohn in his new
book, but did attribute the view that the people are the
governors in our democracy to Meiklejohn. "This is the
theme of Alexander Meiklejohn," Douglas wrote, "former
President of Amherst, who, in 1953, wrote a devastating
criticism ... of the Supreme Court decisions which have
allowed freedom of speech to be abridged."45
Douglas had quoted Meiklejohn's 1949 book, Free Speech,
in his dissent in Dennis. the case that he had mentioned in
his note. In his cite, Douglas identifies Meiklejohn as the
leading opponent of the clear-and-present danger test. He
also credits Chafee as being the test's primary supporter.
Douglas described the test as the "only original judicial
thought on the subject" of determining possible limits to
freedom of expression and lamented that there had been
little agreement on its meaning and proper application.46
By the time of his 1954 note, however, Douglas had come to
appreciate the nuance of Meiklejohn's First-Fifth Amendment
dichotomy separating speech on public issues from speech on
private matters, and had aligned himself firmly with the
professor's position.
44 William O. Douglas to Meiklejohn, Oct. 6, 1954,
Meiklejohn Papers, Box 7, Folder 4.
45 William O. Douglas, An Almanac of Liberty, Garden
City, N.Y.: Doubleday S, Co. (1954), 125.
46 3 41 U.S. 494, 566 (n9) (1951).

207
By I960, Douglas was keenly aware of the antagonism of
the Court's four-member right wing toward the view of the
First Amendment's protection for political belief and
advocacy he shared with Meiklejohn.47 Whether he had ever
met Meiklejohn is not clear, but he recognized his
constitutional soulmate in the audience one morning during
oral arguments early in the Court's 1961 term. Scribbling a
note on a Court memo pad, he summoned a Court messenger to
deliver it to Meiklejohn in the gallery: "My old
'subversive' friend: It is wonderful to have you present—
looking so healthy and happy."48
Douglas' lighthearted note was among the last the two
exchanged. The last in Meiklejohn's papers are a pair of
brief notes from the spring of 1963 in which Douglas
expressed his delight at being the first speaker of the
newly established biennial Meiklejohn Lecture series at
Brown University49 and Meiklejohn his regrets at being
unable to make the cross-country trip to attend.50
47 The four justices who fairly consistently voted
against First Amendment protection for political principle
in the late 1950s were Felix Frankfurter, John Harlan, Tom
Clark and Charles Whittaker.
48 William 0. Douglas to Meiklejohn, undated, Meiklejohn
Papers, Box 7, Folder 4. The note was thought to have been
written in November 1960, according to Helen Meiklejohn's
notation at its top, which reads, "Nov. 1960 (?) Note sent
up to A.M. by Justice Douglas who suddenly saw him in court.
H.E.M."
49 William O. Douglas to Meiklejohn, Apr. 1, 1963,
Meiklejohn Papers, Box 7, Folder 4.
50 Meiklejohn to Douglas, Apr. 16, 1963, Meiklejohn
Papers, Box 7, Folder 4.

208
While Black had been causing Meiklejohn great distress
with the extension of his absolutist reading of the First
Amendment into areas Meiklejohn thought unwise, Douglas
tempered his interpretation of the Amendment. As the
justice described his understanding of the First Amendment
during his four-day visit to the Brown campus, he could have
been quoting Meiklejohn himself.51 Douglas confined his
remarks to the political role of First Amendment freedoms
and must have warmed Meiklejohn's heart when he received an
offprint of the Columbia Law Review later that year.52
One of the Court's decisions that term on freedom of
association and of political belief occupied an important
position in Douglas! remarks. Gibson v. Florida Legislative
Investigating Committee53 continued a line of libertarian
victories in internal security cases that had begun in 1957
and clearly paralleled Meiklejohn's views.54 In Gi bson. the
S.A. Gentry, "Douglas Calls for Absolute Protection
for Political Expression," Brown Daily Herald, May 8, 1963,
1. Douglas was at Brown University May 3-6, 1963. The text
of his May 6 address was published at 63 Col. L.Rev. 1361
(1963). Douglas was a graduate of Columbia University
School of Law and was briefly a member of the Columbia law
faculty from 1927 to 1928.
52 Meiklejohn Papers, Box 9, Folder 18.
53 372 U.S. 539 (1963) .
54 Yates V. United States. 354 U.S. 298 (1957). In
Yates, the convictions of five Communist Party members were
overturned in an opinion by Justice John Harlan that turned
largely on the differentiation between advocacy of doctrine
and advocacy of action. Nine other Yates defendants were
ordered retried. Meiklejohn equated "advocacy of doctrine"
with "education and political speech" and "advocacy of
action" with "incitement to conduct" in an unidentified
handwritten note (Meiklejohn Papers, Box 69, Folder 1) but

209
Court held that a state investigating committee could not
require NAACP officials to disclose whether any of its
membership were Communists. The state, the Court held, had
not demonstrated a need for the information sufficient to
override the First Amendment interest in free association.55
After a brief summary of the holding in Gibson. Douglas
ventured into the area of governmental power to conduct
investigations in the first place, giving an absolutist tone
to his language.
Since Congress can make "no law" abridging freedom of
expression . . . and freedom of assembly and since the
First Amendment applied to the States means that no
such law can be made by a State, it would seem that the
power to investigate those matters is lacking.
When the State or Federal Government is prohibited
from legislating on a subject, it has no constitutional
privilege to investigate it. For the power to
investigate is only an adjunct of the power to
legislate . . . investigations by a legislative
committee which could result in no valid legislation on
the subject are beyond the pale.56
University of Chicago law professor Harry Kalven, Jr.
discussed this relationship between Congress1 power to
legislate and its power to compel testimony several years
earlier and credited Meiklejohn with raising the issue.
whether he was referring to Yates is unknown. Other
internal security cases that followed Yates included Kent v
Dullesâ–  357 U.S. 116 (1958), in which the Court prevented
the State Department from refusing to issue passports to
Communists, and Barenblatt v. United States. 360 U.S. 109
(1959).
55 Id. at 546.
56 Manuscript of the First Meiklejohn Lecture, Brown
University, Providence, R.I., May 6, 1963, 12, Brown
University Archives, Providence.

210
"The . . . difficulty has been less fully appreciated
and discussed, although Mr. Meiklejohn notes it sharply. It
turns on the connection between the power of Congress to
investigate in aid of legislation and the power of Congress
to compel testimony for this purpose."57 Kalven argued that
the power to compel testimony is used primarily against
witnesses wishing to conceal something about their
individual cases, information that has little usefulness in
the consideration of general legislation. Since it is only
as an aid to rational legislative judgment that Congress has
the power to compel testimony, both Kalven and Meiklejohn
arrived at the same conclusion: the power to compel
testimony should be far narrower than the power to
investigate.58
In his lecture, Douglas then turned from his procedural
argument against investigative authority to address
protections available for the beliefs sought for official
evaluation. Here, he couched his argument for freedom of
belief in terms of privacy. "The First Amendment in its
respect for the conscience of the individual honors the
sanctity of thought and belief. To think as one chooses, to
believe in what one wishes are important aspects of the
constitutional right to be let alone."59 Douglas' concern
57 Kalven, "Meiklejohn and Barenblatt." 326. (emphasis
in original).
58 Kalven, id. at 327; Meiklejohn, "The Barenblatt
Opinion," at 332.
59 Douglas, Meiklejohn Lecture, 15.

211
for the protection of individual choice perhaps foreshadowed
one of his better-known Court opinions in Griswold v.
Connecticut, a case that decriminalized the use of
artificial birth control by married persons two years
later.60 At Brown, however, Douglas confined his privacy
theory's application to the requirements of self-government.
"Whether a group is popular or unpopular, the right of
privacy implicit in the First Amendment should create an
area into which the Government may not enter."61 Meiklejohn
never expressed his position on the sanctity of thought and
belief in privacy terms, but the idea was the same as he
expressed it with a similar emphasis on the individual many
years earlier: "Freedom of speech is freedom, not of the
mouth, but of the mind which the mouth serves."62
Douglas combined the two themes of limited government
power to investigate beliefs and the personal right to hold
them nearly a decade later, in a dissenting opinion in
Branzbura v. Hayes.63 not long before his retirement from
the Court. He first quoted at length from Meiklejohn's last
published work:
. . . it is essential to keep clear the crucial
difference between "the rights" of the governed and
60 381 U.S. 479 (1965). Douglas first broached his
privacy theory in dissent in Public Utilities Commission v
Poliak. 343 U.S. 451, 467-68 (1952).
61 Douglas, Meiklejohn Lecture, 15.
62 Meiklejohn, Alexander, What Does America Mean?, New
York: W.W. Norton and Co. (1935), 217.
63
408 U.S. 665 (1972).

212
"the powers" of the governors. And at this point, the
title "Bill of Rights" is lamentably inaccurate as a
designation of the first ten amendments. They are not
a "Bill of Rights" but a "Bill of Powers and Rights."
The Second through Ninth Amendments limit the powers of
the subordinate agencies in order that due regard shall
be paid to the private "rights of the governed." The
First and Tenth Amendments protect the governing
"powers" of the people from abridgment bv the agencies
which are established as their servants.
The justice used Meiklejohn's quote to set up the
foundation of Douglas' explanation of the importance of
privileged information to lawmaking in a self-governing
society. He then embarked on a Meiklejohnian argument for
freedom of belief, emphasizing the role of the citizens as
governors:
[T]he people, the ultimate governors, must have
absolute freedom of, and therefore privacy of, their
individual opinions and beliefs regardless of how
suspect or strange they may appear to others.
Ancillary to that principle is the conclusion that an
individual must also have absolute privacy over
whatever information he may generate in the course of
testing his opinions and beliefs.65
His brief argument in favor of a government configured
to maintain the people superior to the institution concluded
with an absolutist twist that sounded more like the recently
retired Hugo Black:
Government has many interests which compete with the
First Amendment. Congressional investigations
determine how existing laws actually operate or whether
new laws are needed. While congressional committees
have broad powers, they are subject to the restraints
of the First Amendment. As we said in Watkins v.
United States . . . : "Clearly, an investigation is
Meiklejohn, Alexander, "The First Amendment is an
Absolute," 1961 Sup. Ct. Rev. 245, 254-57. Quoted at 408
U.S. 665, 713-14 (1972).
65
408 U.S. 665, 714 (1972).

213
subject to the command that the Congress shall make no
law abridging freedom of speech or press or assembly.
While it is true that there is no statute to be
reviewed, and that an investigation is not a law,
nevertheless an investigation is part of lawmaking. It
is justified solely as an adjunct to the legislative
process. The First Amendment may be invoked against
infringement of the protected freedoms by law or
lawmaking."
Hence, matters of belief, ideology, religious
practices, social philosophy, and the like are beyond
the pale and of no rightful concern of government,
unless the belief or the speech, or other expression
has been translated into action.66
Meiklejohn's Mark on the Court
Meiklejohn's theories concerning the proper role of
representative government in American life and his
interpretation of the First Amendment had considerable
impact on at least two senior members of the Supreme Court
following the publication of his only book on the subject in
1948. The steady pace of his law review publications,
Congressional testimony and expansion and republications of
Free Speech as Political Freedom67 throughout the 1950s and
into the mid-1960s kept his ideas at the forefront of
constitutional debate.
The debate that Meiklejohn's thinking had helped
stimulate reached a new level only months before his death
in mid-December 1964. In early March, the Court
constitutionalized the law of libel in New York Times v.
°° 408 U.S. 665, 715 (1972).
67 Meiklejohn's 1948 work, Free Speech and Its Relation
to Self-Government was revised, expanded and republished in
1960 as Political Freedom: The Constitutional Powers of the
People, by Harper & Bros. It was reprinted by Oxford
University Press in 1965.

214
Sullivan.68 the case that established constitutional
protections for citizen criticism of public officials'
conduct. Sullivan also marked the first time that the
benefits of criticism of government officials to self-
governance were recognized as sufficiently important public
interests to warrant protection under the First Amendment.
In Sullivan, a group of black civil rights activists
and their supporters had placed a paid advertisement in the
New York Times that was critical of the conduct of the
Montgomery, Alabama police. Commissioner L.B. Sullivan
brought a libel action against four individuals and the
newspaper, claiming that criticism of the police amounted to
criticism of him individually even though he was not
identified by name, since his duties included supervision of
the police. Sullivan also showed that there were a number
of factual errors in the advertisement that the newspaper
failed to correct. A jury awarded Sullivan the full amount
claimed in damages, $500,000, and the state supreme court
affirmed.69
In a majority opinion by Justice William Brennan, the
United States Supreme Court unanimously reversed the
judgment. The Court held that the First and Fourteenth
Amendments insulated critics of a public official's conduct
from liability in a libel action absent evidence of
knowledge that the defamatory statement was false or that it
68 376 U.S. 254 (1964) .
69 273 Ala. 656, 144 So. 2d 25 (1962).

215
was made with reckless disregard of its truth or falsity.70
In concurring opinions, each of which was joined by Douglas,
Justices Hugo Black and Arthur Goldberg argued that the
majority had not gone far enough and that the freedom to
criticize official conduct should be unconditional.71
In its highly speech-protective opinion, the Court
found that criticism of government officials' conduct by
citizens lay within "the central meaning of the First
Amendment."72 The very foundation of Meiklejohn's free
speech argument is that citizen-rulers should have absolute
freedom to criticize the official conduct of their elected
officials.73 Although the majority opinion does not cite
Meiklejohn, several scholars have concluded that the opinion
is based on his writings.74 Meiklejohn's views are in fact
reflected in several places throughout the Court's opinion.
The opening topic and dominant theme of the second part of
70 376 U.S. 254, 280 (1964).
71 Id. at 293, 304.
72 Id. at 273.
73 Meiklejohn, Free Speech, at 35-38.
74 See, e.g. Kalven, "The New York Times Case: A note on
'The Central Meaning of the First Amendment,' " 1964 Sup.
Ct. Rev. 191, 209 ("[T]he opinion almost literally
incorporated Alexander Meiklejohn's thesis that in a
democracy the citizen as ruler is our most important public
official."); see also, Hopkins, W. Wat, Mr. Justice Brennan
and Freedom of Expression, New York: Praeger (1991), 88-90
and Schauer, Frederick, "Reflections on the Value of
Truth", 41 Case M. Res. 699, 714-15 (1991) ("Seeing the case
as involving the relation between knowledge and power
conforms it more closely to the views of Alexander
Meiklejohn, on which the decision is commonly thought to be
based.")

216
Political Freedom is the people's sovereignty, exercised
over their representatives through the electoral process.75
Brennan quoted a 1794 speech by James Madison in the House
of Representatives to make the point: "If we advert to the
nature of Republican Government, we shall find that the
censorial power is in the people over the Government, and
not in the Government over the people."76 Brennan repeated
his belief in the sovereignty of the citizen in justifying
protection for criticism of official conduct: "It would give
public servants an unjustified preference over the public
they serve, if critics of official conduct did not have a
fair equivalent of the immunity granted to the officials
themselves. "77
In what is perhaps the opinion's most dramatic stroke,
the Court adopted this view after reviewing the
constitutionality of the Sedition Act of 1798.78 The Court
had not ruled on the validity of the Act during the short
period it was in effect before expiring in 1801. The
government had, however, punished its critics with fines and
imprisonment.79 Relying mainly on an historical consensus
of scholarly opposition to the Act, the Court declared
75 Meiklejohn, Political Freedom, 98-100.
76 376 U.S. 254, 275 (1964).
77 Id. at 282-83.
78 1 Stat. 596.
79 Levy, Leonard, Emergence of a Free Press, New York:
Oxford University Press (1985), 258 et seq.

217
criminalization of criticism of government
unconstitutional.80
The Court's resolution of the status of the Act paved
the way for subsequent parts of the Sullivan opinion to
establish rules that would give vitality to the new freedom
to criticize officials' conduct. The first problem the
Court addressed was the stultifying effect of a citizen-
critic's having to prove the truth of everything asserted as
fact. In laying the foundation for the new burden of proof
for public official plaintiffs, the actual malice
standard,81 the Court identified the flaw in the existing
requirement that defamatory statements be true in
Meiklejohnian terms: "They [critics of government] tend to
make only statements which 'steer far wider of the unlawful
zone.' . . . The rule thus dampens the vigor and limits the
variety of public debate. It is inconsistent with the First
and Fourteenth Amendments. "82
The Court, in narrowing the focus of the Sul 1ivan
opinion to the reasoning behind extending protections to
critics of government, found an analogy in Barr v. Matteo.83
a case that involved a private citizen who brought a libel
80 376 U.S. 254, 276.
81 What is often referred to as "New York Times actual
malice" can be defined as publication with knowledge of a
statement's falsity or with reckless disregard for its truth
or falsity.
82 Id. at 279.
83
360 U.S. 564 (1959).

218
action against a government official but had lost at trial.
In Earn, the Court held that a privilege for officials to
criticize within the scope of their public duties was
necessary for the effective administration of the
government. Looking at the other side of the same coin, the
Court in Sullivan found the same reasoning applicable to
citizen-critics who had offended an official. In doing so,
the Court not only handed the citizen an equal right to
criticize, but incorporated Meiklejohn's position that the
citizen was sovereign and elevated the people's right to
pass judgment on official conduct to a duty commensurate
with that status: "It is as much his [the citizen's] duty to
criticize as it is the official's duty to administer."84
However significant the limitation erected by Sullivan
on both civil and criminal libel actions spawned by
criticism about public officials, for Black it was not
enough. "I base my vote to reverse," he wrote in a four-and
a-half-page concurrence in which he was joined by Douglas,
"on the belief that the First and Fourteenth Amendments not
merely 'delimit' a State's power to award damages to 'public
officials against critics of their official conduct' but
completely prohibit a State from exercising such power."85
Citing Meiklejohn's original 1948 work on citizen-official
relations, he concluded the opinion: "An unconditional right
to say what one pleases about public affairs is what I
84 376 U.S. 254, 282.
85
Id. at 293.

219
consider to be the minimum guarantee of the First
Amendment."86
Kalven suggested that the Court extend Meiklejohn's
theme beyond the right to criticize public officials to
create protections for discussion of other types of public
issues. At the end of his article reviewing the Sullivan
decision, Kalven mapped out the areas the Court might
consider:
[T]he invitation (in Sullivan) to follow a dialectical
progression from public official to government policy
to public policy to matters in the public domain, like
art, seems to me to be overwhelming. If the Court
accepts the invitation, it will slowly work out for
itself the theory of free speech that Alexander
Meiklejohn has been offering us for some fifteen years
now.87
Kalven's prediction, which was based both on his
personal friendship with Meiklejohn and his own perception
of the reasoning behind Sullivan, turned out to be
remarkably prescient. Meiklejohn, who died only months
after the Sullivan decision, didn't live to see the extent
to which his protection for speech on public issues was
adopted. In the half-dozen years following Meiklejohn's
death, the Court protected criticism arising from discussion
of public issues from liability in three types of libel
cases.
The direction of the Court's thinking in the field of
libel for the next few years could be gleaned to some extent
“ Id. at 297.
87 Kalven, "Central Meaning," at 221.

220
from the remarks of the Sullivan opinion's architect,
Justice Brennan, at Brown's second Alexander Meiklejohn
Lecture in the spring of 1965. At the beginning of the
speech, Brennan's first since Sullivan was handed down 13
months earlier, the justice recognized Meiklejohn's
"significant contribution" to the First Amendment debate88
and later indirectly acknowledged his influence in the
Sullivan decision.89 Despite his nod to Meiklejohn's
influence in the Alabama libel case, in his speech Brennan
focused less on Sullivan and more on Garrison v.
Louisiana r90 another forceful statement by Brennan on the
role of free speech in democracy. And although Brennan did
not say so directly, the case also represented a far more
direct reliance on Meiklejohn's teachings than Sullivan had,
though neither case cited his writings. In Sullivan, the
reasoning behind Brennan's opinion granting First Amendment
protection to speech critical of public officials had
stressed the marketplace of ideas rationale, and to a lesser
extent, expression of the popular will. In Garrison.
88 Manuscript of Alexander Meiklejohn Lecture, Brown
University, Providence, R.I., April 14, 1965, 1, Brown
University Archives, Providence. The Lecture was also
published as "The Supreme Court and the Meiklejohn
Interpretation of the First Amendment," 79 Harv. L. Rev. 1
(1965).
89 Brennan referred to Kalven's writings on Meiklejohn's
views and said that the law professor "senses . . . the
adoption ... of a reading [of the First Amendment] in
substantial agreement with that which Dr. Meiklejohn has
urged." Meiklejohn Lecture, 12.
90 379 U.S. 64 (1964) .

221
Brennan was more explicit in applying principles of self-
government to support the Court's holding.91
In Garrison, which was decided three weeks before
Meiklejohn's death, the Court applied the new 'New York
Times rule' of actual malice to reverse the conviction of
the Orleans Parish district attorney on criminal defamation
charges. District Attorney Jim Garrison had accused a
handful of the parish's criminal court judges of laziness
and corruption in the performance of their duties. Quoting
from a part of Garrison that referred to language from
Sullivan approving that opinion's excusing of some factual
mistakes, Brennan said, "Truth may not be the subject of
either civil or criminal sanctions where discussion of
public affairs is concerned. . . . For speech concerning
public affairs is more than self-expression; it is the
essence of self-government.1,92
By the mid-1960s, Meiklejohn's writings were having
considerable impact at the Court; Brennan's quotation above
is a paraphrase of a thought from the philosopher's last
published work three years earlier. The way Meiklejohn
originally expressed that idea was, "The freedom that the
First Amendment protects is not, then, an absence of
regulation. It is the presence of self-government."93
yl 379 U.S. 64, 75 (1964) .
92 Id. at 74-75; Meiklejohn Lecture, 22-23.
93 Meiklejohn, Alexander, "The First Amendment is an
Absolute," 1961 Supreme Court Review 245,252.

222
In his speech, Brennan also quoted another passage from
Meiklejohn's last article that may have foreshadowed his
holding in a case six years later that extended Sullivan
protections beyond comment on officials' performance to
comment on the character of would-be public servants.
Discussing his agreement with Meiklejohn's exemption from
libel sanctions for speech of "governing importance," and
giving the concept of governing a broad interpretation,
Brennan quoted Meiklejohn approvingly for the proposition
that a "verbal attack . . . made in order to show the
unfitness of a candidate for governmental office, the act is
properly regarded as a citizen's participation in
government. It is therefore protected by the First
Amendment. 1,94
That view did not appear immediately in the Court's
opinions, but in 1966, only a year after Brennan's first
public statement on the Court's view of the sanctity of
self-government, the justices protected defamatory remarks
directed at minor government officials and persons in a
position to influence public policy.95 Early in the next
decade, protection against libel suits resulting from
discussions of public issues involving government was
provided in two more major cases. In 1970, the rule was
extended to cover potentially libelous comments made during
94 Brennan, Meiklejohn Lecture at 17; Meiklejohn, "The
First Amendment is an Absolute," at 259.
95
Rosenblatt v. Baer. 383 U.S. 75 (1966).

223
the course of business at public hearings.96 Finally, in
1971, Brennan was able to apply Meiklejohn's belief in the
importance of protecting comment directed at those who would
do the public's business when speech about candidates for
elected office fell under the actual malice rule.97
In the years since Sullivan and its progeny, several
commentators have followed Kalven's early observation of
Meiklejohn's influence on Brennan's opinions for the
Court.98 The implementation of Meiklejohn's beliefs by
Brennan also reached its zenith in 1971. That year, support
for a public issues rationale for protecting potential libel
occurring in instances outside of Meiklejohn's zone of
government discussion could only muster a three-justice
plurality to protect a radio station from a libel suit
brought by an adult book and magazine distributor who had
been described as a smut merchant.99 Brennan, the author of
96 Greenbelt Publishing v. Bresler. 398 U.S. 6 (1970).
97 Monitor Patriot v. Roy. 401 U.S. 265 (1971).
98 [Brennan's libel opinions] "represent a legal
development that might not have occurred without the impetus
of Meiklejohn's little volume." Krislov, Samuel, The
Supreme Court and Political Freedom, New York: The Free
Press (1968), 103; [Meiklejohn's theory] "is a powerful
argument, and it has influenced much constitutional law
interpreting the First Amendment." Schauer, Fredrick, "Free
Speech and its Philosophical Roots" in The First Amendment:
The Legacy of George Mason, T. Daniel Shumate, ed., Fairfax,
Va.: George Mason University Press (1985), 144.; "Justice
Brennan [has] credited Meiklejohn with being his
philosophical mentor." Gillmor, Donald M., Power, Publicity
and the Abuse of Libel Law, New York: Oxford University
Press (1992), 95.
99 Rosenbloom v. Metromedia. 403 U.S. 29 (1971).

224
the majority opinion, tried to overcome the unwillingness of
some members of the new Burger Court to extend the Sul 1ivan
rationale to libel of private individuals by stating the
importance of discussing controversial public issues such as
pornography even more emphatically. The rationale focused
more on the nature of the topic under discussion than the
status of the plaintiff and was intended to "give effect to
the [First] Amendment's function to encourage ventilation of
public issues, not because the public official has any less
interest in protecting his reputation than an individual in
private life."100 That argument foundered, ironically, out
of concern for its effect on the press. A dissent by
Justice Thurgood Marshall, who was joined by Justice Potter
Stewart, indicated that the practical limits of speech's
utility as a tool of self-government may have been reached.
Marshall worried that "courts will be reguired to somehow
pass on the legitimacy of interest in a particular event or
subject; what information is relevant to self-government.
The danger such a doctrine portends for freedom of the press
seems apparent."101
The danger that Marshall alluded to was the self¬
censorship of the press that would follow a decision that
failed to define the nature of an issue of governing
importance. Such a result would leave critics with no
guidelines as to what might be permissible subjects for
101
Id. at 79.

225
comment. Certainty, however, was restored three years later
when the Court majority reasserted the public figure/private
individual dichotomy, repudiating Brennan's Rosenbloom
reliance on the content of the comment rather than the
identity of the plaintiff. Justice Lewis Powell wrote that
Brennan's approach "would occasion the difficulty of forcing
state and federal judges to decide on an ad hoc basis which
publications address issues of 'general or public interest'
and which do not."102
According to the writing of one scholar, while working
out his position in Rosenbloom, Brennan had been even more
explicit in a draft statement of his opinion on self-
government. During the winter months following oral
arguments in the case, Brennan had circulated an early
version of his opinion citing Meiklejohn for the proposition
that the First Amendment is the cornerstone of a free
government: "The guarantees secured by the First and
Fourteenth Amendments for speech and press constitute the
cornerstone of a government 'of the people, by the people,
and for the people,' ensuring a free flow of information and
a free marketplace of ideas competing for popular
acceptance." The sentence was dropped from the published
opinion, however, in order to win Justice Harry Blackmun's
support.103
Gertz V. Welch. 418 U.S. 323, 346 (1974).
103 Hopkins, W. Wat, Mr. Justice Brennan, at 91-92.

226
Two of the 1970s1 most respected legal commentators,
looking back from the perspective of the end of the decade,
saw the Rosenbloom decision as a defining event. Yale law
professor Vincent Blasi called the decision "the high water
mark of Meiklejohn theory in the libel area"104 and U.C.L.A.
law professor Steven Shiffrin agreed that the decision was
"the high point of the Kalven scenario"105 which the senior
law professor had outlined in 1964.106 What is significant
is not that the Sul 1 ivan protections were kept from
migrating into other areas of defamatory speech and
enlarging the field of protected expression, but that the
limits of protections of speech, as sketched out by
Meiklejohn and subsequently interpreted by the Court, were
actually reached.107
If Brennan's 1971 Rosenbloom plurality opinion marked
the highpoint for protection of speech on public issues not
involving the government, by 1985 it was clear that the
First Amendment was not a constitutional savior in libel
104 Blasi, Vincent, "The Checking Value in First
Amendment Theory," 1977 American Bar Foundation Journal
521,570.
105 Shiffrin, Steven, "Defamatory Non-Media Speech and
First Amendment Methodology," 25 U.C.L.A. Law Review 915,920
(1978).
106 Kalven, "Central Meaning." See Note 85, supra, and
surrounding text.
107 Late in the 1970s, the Court had declined to extend
protection to the press1 defamatory coverage of private
persons' civil court cases in Time v. Firestone. 424 U.S.
448 (1976); receipt of government grants in Hutchinson v.
Proxmire. 443 U.S. Ill (1979) and allegation of criminal
behavior in Wolston v. Reader's Digest. 443 U.S. 157 (1979).

227
suits when the issues involved were not of concern to the
public. In Dun & Bradstreet v. Greenmoss Builders.108 the
Court said that since the misreporting of a business credit
history was not an issue of concern to the general public,
the actual malice standard's protections were unavailable.
Powell's opinion in Dun & Bradstreet had a Meiklejohnesque
tone:
We have long recognized that not all speech is of equal
First Amendment importance. It is speech on "matters
of public concern" that is at the heart of the First
Amendment's protection. ... In contrast, speech on
matters of purely private concern is of less First
Amendment concern. When the speech involved no public
issues, libel law would be in effect because "there is
no threat to the free and robust debate of public
issues; there is no potential interference with a
meaningful dialogue of ideas concerning self-
government; and there is no threat of liability causing
a reaction of self-censorship."109
Brennan used similar language in his dissent in
Greenmoss Builders that sounded more like a concurrence with
Powell's opinion. In a phrase that recalled Meiklejohn's
distaste for speech that served only to further the
interests of business, Brennan wrote, "speech about
commercial or economic matters" did not directly implicate
'the central meaning of the First Amendment' because it was
not the essence of self-government."110
Brennan's best-known and most numerous applications of
Meiklejohn's principles were in the justice's opinions in
,uo 472 U.S. 749 (1985) .
109 Id. at 758-60.
110 Id. at 787, 794.

228
libel cases stemming from speech about the conduct of
government and other public issues. The last time Brennan
employed Meiklejohn's writings to explain a majority
opinion's reasoning, however, the case before the Court was
not one involving the right to speak freely in exercise of
the self-government function, but rather one involving the
right to receive the ideas of others for that purpose.
The 1982 opinion in Board of Education v. Pico111 was
not only the last time Brennan cited Meiklejohn for the
Court, but also marked the last time any justice used
Meiklejohn's ideas to support a Court holding. Pico, an
education case pitting a Long Island, New York school board
against a group of high school and junior high students over
the board's decision to remove certain books from their
school libraries, was a right-to-know case unlike most of
those which the professor's work was used to decide.
Before Pico. Meiklejohn had been invoked by the
justices in the defense of individual participants in the
political process who were acting on their opinions as
formed by the facts that they had previously been exposed
to. In Eícq, however, Brennan was addressing the problem of
the intelligent formation of those opinions. He did this by
reading the comments of Meiklejohn the teacher, not
Meiklejohn the constitutional advocate, and applied
arguments on the importance of civic education as a
ln Board of Education. Island Trees Union Free School
District No. 26, et al. v. Pico, by his Next Friend. Pico.
et al., 457 U.S. 853 (1982).

229
precursor to political participation that Meiklejohn had
developed long before rights under the First Amendment
became the primary topic of his writings.
Just so far as . . . the citizens who are to decide an
issue are denied acquaintance with information or
opinion or doubt or disbelief or criticism which is
relevant to that issue, just so far the result must be
ill-considered, ill-balanced planning for the general
good.112
Brennan's interpretation of Meiklejohn discarded the
negative rhetoric of the original and expressed the
fundamental importance of education positively:
In sum, just as access to ideas makes it possible for
citizens generally to exercise their rights of free
speech and press in a meaningful manner, such access
prepares students for active and effective
participation in the pluralistic, often contentious
society in which they will soon be adult members.113
Politics and the Interpretation of Meiklejohn
As Meiklejohn turned to reading and writing about law
in the 1940s, the friendships he cultivated with two of the
more liberal members of the Supreme Court, Hugo Black and
William O. Douglas, assumed an important role in his
constitutional interpretation. In the area of expression,
he found philosophical soulmates in the relatively youthful
justices, but World War II and its aftermath, the Cold War,
had formed an unbroken chain of circumstances that combined
to paint a concrete and frightening picture of the kinds of
ideas that free speech might let loose in the land. For
457 U.S. 853, 867 (1982), quoting Meiklejohn, Free
Speech, at 26.
113
Id.

230
much of the 1950s, Meiklejohn's law review articles and many
of Black and Douglas' passionate dissents supported the
freedoms of association, belief and speech for communists
and others who were perceived as threats. As a result, the
positions on expression advocated by the two justices and
their academic counterpart were effectively resisted by
conservatives on and off the bench.
By the time Meiklejohn's last influential supporter,
William Brennan, joined the Court in late 1956, Senator
Joseph McCarthy had been disgraced and the perceived
Communist threat had receded somewhat. Meiklejohn's message
remained fundamentally unchanged in the late 1950s and
1960s, it found application in a relatively benign setting,
the discussion of the internal affairs of government, rather
than in the earlier hysteria surrounding a perceived
external threat. In that venue, Brennan was able to
champion Meiklejohn's messages of the value of dissent to
self-government and of education for participatory democracy
free of the specter of violent overthrow from without.

CHAPTER VI
MEIKLEJOHN EXTENDED: LEGACY AND LESSONS
FOR THE 21st CENTURY
Introduction
When Alexander Meiklejohn began studying the First
Amendment and its place in American life in the 1940s, much
of the discussion of the amendment in the mass media was in
connection with its applicability to freedom of political
belief. The war on fascism and the postwar expansion of
Communism in Eastern Europe and Asia dominated the national
agenda for more than a decade and spawned vigorous exchanges
on the rights of political dissidents such as that between
Meiklejohn and Earl Browder in late 1943. The Supreme
Court's docket mirrored the course and intensity of the
dispute over the rights of American Communists and
eventually Meiklejohn's law review writings became part of
the debate during the 1950s and early 1960s.
As the perceived Communist threat waned during the
mid-1960s, however, so did judicial and academic discussion
of Holmes' clear-and-present-danger test and other attempts
to reconcile the First Amendment with political dissent and
advocacy of unpopular political systems. In its place
emerged internal struggles over socio-political issues such
as race relations. The controversies that were stirred up
231

232
as the nation grappled with these contentious subjects were
often heated and led to pointed attacks on government
performance and comment on officials' conduct in the
handling of the problem.
Meiklejohn's writings again figured prominently in the
consideration of solutions to the question of defamation of
public officials, but with two important differences.
First, the writings relied on by supporters of the right to
criticize official conduct were not contemporaneous
commentary by Meiklejohn as they had when the topic was
political affiliation. Instead, parts of Meiklejohn's 1948
book were cited that discussed in general terms the people's
historical relationship with their government. Second, and
more importantly, Meiklejohn's earlier arguments were far
more influential with members of the Supreme Court than his
later work had been.
Throughout the 1950s and into the early 1960s, when
Meiklejohn was writing in support of suspected Communists'
freedom to hold and exercise their personal political
beliefs unchallenged, he was able to rally only a small
minority of the Court to agree with that position. When the
question broadened into the more fundamental and less
partisan one of individual democratic participation, the
Court's regard for Meiklejohn's arguments shifted
dramatically to embrace one of his fundamental tenets. The
result was the unanimous holding in New York Times v.
Sullivan that encompassed the belief that citizens, as the

233
ultimate governors, have wide latitude to criticize those
whom they have chosen to represent them.1 Three concurring
justices would have protected such criticism absolutely.
The Court's employment of Meiklejohn's teachings did
not stop with Sullivan. however. Where that decision
paralleled Meiklejohn's argument for the necessity of
citizen involvement to a successful democracy, several
subsequent decisions embodied the even more elemental belief
that successful democracy required not just involvement, but
education of citizens to prepare them for effective
involvement. Meiklejohn had stressed this point in the
1930s and early 1940s both in his writings and his academic
career. The Supreme Court decisions which embodied that
line of thought were not cases dealing with education in the
sense of availability of schooling or the framework of the
instructional process. Rather, the questions presented by
those cases regarded education as access to the ideas that
are necessary to full participation in democratic discussion
and the creation of a base of understanding for responsible
decisionmaking. Examples of the Supreme Court cases that
incorporated Meiklejohn's access for education arguments
included Red Lion Broadcasting Co. v. Federal Communications
1
376 U.S. 254 (1964).

234
Commission.2 Virginia Board of Pharmacy v. Virginia Consumer
CQiins.il,3 and Richmond Newspapers. Inc, v. Virginia.4
Meiklejohn had returned to writing on educational
themes in the last years of his life, although he hadn't
published in that area since leaving teaching in 1942,
concentrating on law instead. At the time of his death in
1964, Meiklejohn was trying to fuse his educational and
First Amendment philosophies into an argument for a positive
reading of the First Amendment. Meiklejohn's formulation of
a positive approach to the First Amendment encouraged an
interpretation that shifted the focus away from the
restrictions on government imposed by the language of the
amendment. Instead, Meiklejohn advocated the unstated
opposite of those prohibitions, which would allow government
to actively promote political education through
communication, though the work was left unfinished. His
supporters at the Supreme Court, however, championed his
interpretation in a number of cases stretching from the late
1960s to 1982.5
2 395 U.S. 367 (1969).
3 425 U.S. 748 (1976).
4 448 U.S. 555 (1980).
5 The last citation to Meiklejohn in a U.S. Supreme
Court case was in Justice William Brennan's dissent in
Connick v. Mvers. 461 U.S. 138, 161 (1983). In Connick. the
Court upheld, 5-4, the termination of an Assistant Orleans
Parish (Louisiana) District Attorney for insubordination and
refusing to accept ah intra-office transfer. The Court
dismissed the attorney's contention that she had been
wrongfully discharged for exercising her right of free
speech in criticizing the District Attorney.

235
The posthumous citation of Meiklejohn's work in those
cases represents the most significant impact of his theories
for two closely linked reasons. First, the Court relied on
Meiklejohn's writings in cases calling for analysis of the
fundamental question of the citizen's role in government.
This platform allowed a full airing of his belief in the
utility of freedom of expression to the efficient
functioning of democracy. Second, the cases involved only
issues of minor adjustments to the status quo rather than
any challenge to the bedrock concept of democracy as the
most desirable form of government. These circumstances
stand in stark contrast to the conditions under which
Meiklejohn first floated his First Amendment theories in the
late 1940s. At that time, Meiklejohn's ideas were
associated with cases arguing for freedom to believe in
alien notions of political, social and economic
organization, concepts that were widely viewed by Americans
as threatening to democracy.
Meiklejohn's Contribution
Meiklejohn's liberal educational philosophy and legal
commentary were roundly criticized during his lifetime by
those who failed to grasp his view of education and law as
key parts of the complex machinery of democracy. Critics of
his educational philosophy, such as conservative educator
Sidney Hook, were caught up in the fervor of the controversy
over discussions of Communism in college classrooms without
considering the comparative value of totalitarian political

236
systems in illustrating the structure of democracy.
Zechariah Chafee, Meiklejohn's chief legal antagonist,
likewise faulted him for failing to adequately address
immediate issues in his interpretation of the role of the
First Amendment.
In isolation, Meiklejohn's interpretation of the First
Amendment was comparatively unsophisticated. His analysis
ignored important historical facts, a shortcoming that
Chafee highlighted in his review of Meiklejohn's 1948 book
and in private correspondence with the author during the
year surrounding its publication. A philosopher by
training, Meiklejohn's conclusions were formed by and relied
exclusively on the stifling rigidity of dispassionate logic
and his writings displayed the naive inability of the
non-lawyer to refute opponent's arguments. He did a
masterful job, however, of raising issues, identifying
inconsistencies in others' arguments, posing questions and
outlining the results he hoped to achieve.
Meiklejohn's greatest contributions are not found
through the painstaking examination of his constitutional
interpretations to which his writings have most often been
subjected. The clarity and value of his First Amendment
analysis to an understanding of the American form of
government becomes obvious only by grafting the time he
spent studying law in the final "retirement" years of his
life onto the active and productive teaching career that
proceeded them.

237
Taken separately, Meiklejohn's educational philosophy
and First Amendment analysis are provocative, and little
more. When viewed together, as contributions of the same
mind should be, however, the effect is symbiotic and helps
create a complete analytical framework greater than the sum
of its two major parts.
Examining Meiklejohn's work on the First Amendment,
then, is incomplete except as part of a synthesis. His
legal writings yield far larger dividends when held up
against the background of the experiences that launched the
study of law and formed the goal of education for democracy
law was intended to illuminate. When appreciated as the
means to a greater end and not an argument for its own sake,
the deeper purpose of Meiklejohn's First Amendment position
as a catalyst to a process designed to strengthen democracy
becomes clear.
Back to Education
The emphasis among mass communication scholars on
Meiklejohn's views of the First Amendment makes it easy to
lose sight of the fact that law played only a secondary and
supporting role to Meiklejohn's main interest. Since his
early years as a professor and college administrator,
Meiklejohn held an unshakable faith in citizens' ability to
govern themselves. He believed they would do this most
successfully if th