Father, Son, and Constitution

Father, Son, and Constitution
How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy
Alexander Wohl
June 6, 2013

by Alexander Wohl. Mr. Wohl is an adjunct professor at American University Washington College of Law, speech writer in the federal government and a former Supreme Court Judicial Fellow. For more information about his new book on Justice Tom Clark and his son Attorney General Ramsey Clark, visit the Father, Son, and Constitution Facebook page.

As the only father and son to serve as attorneys general of the United States, Tom and Ramsey Clark are an historically unique pair, a distinction made even more noteworthy by Justice Tom Clark’s decision to give up his seat on the Supreme Court in 1967 so that his son could become President Lyndon Johnson’s attorney general. The tag-team tenure in government of this father and son was an unprecedented shared proximity to power and policy influence during some of the most challenging, divisive, and triumphant periods in U.S. history, from World War II to the attacks of September 11, 2001. But their impact is more far-reaching. In combined careers of more than 100 years and lives spanning three centuries, the Clarks provide a useful lens through which to examine the complex relationship between government and individual citizens that has defined and shaped U.S. legal and social policy through the present day.

At the heart of both Tom and Ramsey Clark’s work were many issues addressing this balance: the extent to which individuals should be prosecuted for “dangerous” speech or associations, when to use invasive law enforcement tools such as wiretapping, what type or duration of confinement constitutes unlawful detention, and the kind of role the federal government itself can or should play in the development of various policies and the enforcement of individual constitutional principles.

On these and other thorny questions the Clarks at once offer a set of ideological bookends and proof that views can evolve over time, a combination largely absent in an environment today in which questions about law and policy increasingly lead to ideological stratification and decision makers ever more pigeonholed in their views. While Tom and Ramsey Clark had clear differences in their outlook and approach, they often found common ground on many issues, including gun control, juvenile crime, and civil rights, along the way learning from each other.

A question posed to Justice Clark during a 1970 joint appearance with Ramsey on NBC’s Meet the Press highlighted this overlap: “Justice Clark, I notice when you were attorney general in 1948, Rep. John McDowell wanted to impeach you for allegedly refusing to prosecute communist spies,” journalist Carl Rowan asked. “Exactly twenty years later, Rep. Hall wanted to impeach your son for being soft on crime. Does this alleged softness come from the fact that you are both Democrats or both Clarks?” Neither man provided a complete answer to this question; had they done so, it would have revealed how two individuals advanced similar policies from opposite ends of the government power–individual rights spectrum as the result of a common conviction in the meaning of the Constitution and the authority of the rule of law.

Tom Clark was a gregarious extrovert who easily mixed policy with politics, using a combination of hard work and political connections to rise steadily to the heights of the legal profession. Though he came from a segregated background, as President Harry Truman’s attorney general he played a key role in Truman’s pioneering efforts in civil rights, for the first time putting the power of the federal government behind civil rights enforcement. But he also played a significant role in enforcing the Truman administration’s notorious anti-communist initiatives, such as the Attorney General’s List of Subversive Organizations, which contributed mightily to the atmosphere of guilt by association so prevalent during the early Cold War.

Tom Clark’s role as a member of the most progressive Supreme Court in the nation’s history only adds to the challenge of characterizing him as either a liberal or a conservative. During his eighteen years as a justice he evolved from a law-and-order conservative into a moderate at the ideological center of a Court that transformed American law through its expansive and egalitarian interpretation of the Constitution and Bill of Rights. Even as he remained a staunch advocate of the use of government power to restrict what he viewed as potentially dangerous acts, crimes, or threats to national security, Tom Clark also joined in and authored rulings protecting basic constitutional rights in a range of areas, including criminal procedure (Mapp v. Ohio), religious freedom (Abington School District v. Schempp), andprivacy/wiretapping (Berger v. New York).

In contrast to his father’s sociability and skill at mixing politics and pleasure, Ramsey is more introspective, with a dollop of idealism and an unwillingness to just “go along.” From the outset of his tenure as attorney general to President Lyndon Johnson, as well as in his prior Department of Justice positions in the Kennedy and Johnson administrations, Ramsey sought to reject politics as part of his job. Though he understood the necessity of balancing politics with principle and the political implications of the administration’s decisions, he rarely used those as the grounds for a decision, instead demonstrating a stubborn impracticality (or perhaps an unrealistic optimism) that could inflame opponents and exasperate allies, even President Johnson. (Though occasionally frustrated by Ramsey’s positions, Johnson deeply respected his attorney general’s intelligence, integrity, and advice.) Ramsey’s posture in that position, some noted, seemed more like that of a defense attorney than a prosecutor.

Though the range of views expressed by Ramsey Clark during his career was not as broad as his father’s, Ramsey also demonstrated a capacity for change. As a liberal attorney general working for a liberal president, Ramsey was a fervent advocate for doctrines he believed represented basic principles of justice; opposing wiretapping and the death penalty and promoting racial equality. At times, however, he found himself enforcing and defending policies that curtailed individual rights, such as when he prosecuted draft protesters or approved surveillance of radical groups.

After leaving government, Ramsey gradually moved to the farthest reaches on the individual rights–government power spectrum, representing clients who have been disadvantaged as a result of what he views as the disproportionate power the government wields. Having seen (and been party to) the development of some of this policy as a government official, Ramsey the activist rarely finds actions by the government restraining individual liberty to have merit. To some degree his transformation recalled that of Daniel Ellsberg, another former Marine and government official who, freed of restraints based on either public opinion or political considerations, became an activist on the left in response to what he viewed as deceptive or disingenuous government policies. He is well aware of the power of his image as a former attorney general, particularly when representing clients deemed enemies of the United States and believes in taking any opportunity to shed light on prosecutions he feels are inherently imbalanced in order to ensure a fair system of justice.

The issues he focuses on today echo many of those the Clarks dealt with throughout their careers, including issues of voting rights and equality, questions of religious freedom and ethnic discrimination, assaults on freedom of association, the rights of criminal defendants, the power and ability of government agencies to conduct surveillance on private citizens, and others involving the mix of war, national security, and executive power.

The ebb and flow between the often contradictory forces of the government’s responsibility to protect individual liberties and its duty to develop policies for the defense of its citizens is at the center of the American democratic experience, defining not just the contours of the Constitution but the social history of the United States. At times favoring government policies and at other times fiercely protective of individual rights, Tom and Ramsey Clark help show why a commitment to constitutional principles cannot be a replacement for ideological or policy differences, but a necessary means of furthering their legitimacy.