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Prologue
WHOSE TRIAL IS THIS ANYWAY?
It was an unusually long oral argument—two hours when most are only
one. At noon on March 29, 1961, the nine members of the United States
Supreme Court began listening to oral arguments in Mapp v. Ohio, a case
that seemed to be challenging the constitutionality of Ohio's obscenity
laws. Then, late in the arguments, Chief Justice Earl Warren leaned
forward and asked Ohio's advocate the whereabouts of Dollree Mapp, the
woman who had been sentenced to 1 to 7 years in the state penitentiary
for possession of obscene materials. The prosecutor, Gertrude Bauer
Mahon, answered, "She's never served time. She's out on bail."
Actually, Dollree Mapp was sitting in the spectators' section of the
courtroom. She had traveled all the way from Cleveland to hear the
arguments that would decide whether she would go to prison. But to
prosecutor Mahon and the justices, she was a nonperson, just another
spectator in that majestic setting. Dollree Mapp's thought was "whose
trial is this anyway?"
Miss Mapp is one of the very few who have witnessed her own Bill
of Rights case being decided by the highest tribunal in the land. But all
the cases that have shaped our Constitution have names attached—from
Barren to Near to Mapp to Francis to DeJonge to Doe and Roe. They are
seemingly faceless names in a pageant, names known to constitutional
scholars and lawyers as citations rather than as human beings testing
their rights.
Constitutional law and interpretation meanders like an ancient
river, winding its way through valleys, continuously cutting new chan-
nels. The chapters in this book chart some of these channels. What follows
is a series of essays that reach beyond the scholarly casebooks and bring
to life some of the human dramas which have helped determine what our
Constitution means, reminding us that all landmark cases begin with
people.
Justice Felix Frankfurter once observed that "the safeguards of
liberty have frequently been forged in controversies involving not very
nice people." Some were; some were not. The names of the people involved
in these landmark cases appear on no hallowed honor roll; the facts of
how they reached the high court are often forgotten, but these cases can
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