A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought

Richard A. Primus, University of Michigan Law School


In Dennis v. United States,' Justice Robert Jackson noted that lawmaking in his generation involved never-ending quests for a legal formula that would protect America against a communist revolution.2 Jackson was writing primarily about the Smith Act,3 but his remark had much broader application. In the years after World War II, the Supreme Court continually reformulated constitutional doctrine in ways designed to prevent a totalitarian regime, communist or otherwise, from arising in the United States. Sometimes, as in Dennis, antitotalitarianism appeared on the face of judicial doctrine. In a more subtle way, the desire to articulate principles that distinguished America from the Soviet Union and Nazi Germany contributed to a long line of liberal Supreme Court decisions from the Second World War through the Warren era. Those decisions revolutionized the law of free expression, equal protection, police procedures, and personal privacy. But to credit antitotalitarianism with helping to remake constitutional case law is still to underestimate its influence. The problem of totalitarianism gave birth to major themes in modern academic constitutional theory. Indeed, constitutional thought still operates within the framework defined by opposition to Nazism and communism. Antitotalitarianism lies just below the surface of the leading modern theories of constitutional law, coloring the work of scholars like John Hart Ely and Bruce Ackerman. The quest for an antitotalitarian formula marks not just judicial doctrine but academic constitutional thought as well. Theorists know that the ability to prevent the rise of a Nazi- or Soviet-style regime has become the implicit final test of any constitutional theory, and they struggle, just as Jackson's Court struggled, to find a formula adequate to the task. Understanding the aims and the limits of modern constitutional thought, academic as well as judicial, thus requires understanding the influence of antitotalitarianism.