APA Newsletters
Spring 2000
Volume 99, Number 2

Abstracts:
Recent Law Review Articles of Interest

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Larsen begins this article by reminding us of William Brennan’s observation (in Bakke) that as late as 1927, Oliver Wendell Holmes could still reasonably refer to the 14th Amendment’s Equal Protection Clause as the "last resort of constitutional arguments." And yet in the intervening years it has often become the first resort. How did the Equal Protection Clause rise to such constitutional preeminence only during the second half of its now nearly sesquicentennial existence? Larsen offers a partial answer to this question, in terms of the popular effect of the famous trial in which John Scopes was convicted of violating a Tennessee law prohibiting the teaching of Darwinian evolution in public high schools. Larsen argues that, because of the massive publicity the trial garnered (it was, indeed, a newspaper publicity stunt by design), the American electorate came to be more accustomed to the view that majority rule was perhaps not the only really fundamental liberty that deserved protection in our democratic polity. For the Scopes trial drove home the point that minority rights might also sometimes deserve protection against majoritarian tyranny, to the extent that we no longer think of constitutional provisions exclusively as burdens imposed on legitimate majority rule. Through the 14th Amendment’s Equal Protection and Due Process clauses, we now think of many of those constitutional provisions as devices to impede the state’s interference with minority rights.

In this case, Scopes, as a seemingly innocent young school teacher, presented a compelling victim of majoritarian oppression. Larsen contends that this message got through to the public despite, rather than because of, Clarence Darrow’s trial strategy, which laid heavy emphasis on the folly of pitting religion against science, rather than focusing on the ACLU–sponsored thesis that liberty flows more from the protection of minority rights than it does from undue deference to majority rule. In this context, Larsen also discusses the impact of the film, Inherit the Wind, and the ultimate resolution of the Scopes dispute in Epperson v. Arkansas.

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