Hollywood and the Constitution

In a fascinating article, “Oil and Water Do Not Mix: Constitutional Law and American Popular Culture,” recently posted as part of the Marquette Legal Studies Paper Series, Professor David Papke argues that American movies and television series have embarrassingly failed to capture what he refers to as “meaningful constitutional deliberation and discussion.” Focusing on the movies First Monday in October and The Pelican Brief and the television series The Court and First Monday, Papke demonstrates how entertainment industry conventions make it impossible to seriously examine the process of constitutional deliberation in popular media.

While I agree with Professor Papke that cinematic efforts involving the Supreme Court have resulted in dismal failures, there have been Hollywood movies that have addressed “constitutional” questions with some insight and sophistication. The key, it seems, is to focus on the constitutional issue itself rather than on the court that decides it.

I have in the past incorporated a few films into my American Constitutional History class (though not this past semester), and I would someday like to offer a seminar that focuses on the treatment of constitutional issues in film.  An incomplete list of such films and their subject matter is set out below:

The Birth of a Nation (1915) – the meaning of the Civil War for American federalism

Gabriel Over the White House (1933) – the limits of presidential power in a time of crisis

Judge Priest (1934) – racial accommodation and the Constitution in the Jim Crow era

Mr. Smith Goes to Washington (1939) – the limitations of the American system of checks and balances

Meet John Doe (1941) – the problem of manipulation of public opinion in mass society

Inherit the Wind (1960) – the meaning of freedom of religion in a democracy

Dirty Harry (1971) – the legitimacy of the Warren Court’s expansion of the rights of criminal defendants

Walking Tall (1973) – the legitimacy of the Warren Court’s contraction of local and regional autonomy

Absence of Malice (1981) – the liability of the press for injuries inflicted by inaccurate reporting

Poletown Lives! (1983) – the limits of the eminent domain power; technically a documentary, but actually structured like a commercial film

Separate But Equal (1991) – the legitimacy of racial distinctions under the constitution (a partially fictionalized account of the case of Briggs v. Elliot, one of the cases decided with Brown v. Board of Education)

The only one of the above films that devotes a significant amount of time to the United States Supreme Court is the final one, Separate But Equal, and the depiction of the Court is the weakest part of the movie. The justices come off as narrowly drawn stereotypes, in contrast to the more fully developed parties to the case and their lawyers (although Sidney Poitier as Thurgood Marshall takes a little getting used to).

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Television’s First Public Prosecutor

My colleague David Papke recently posted on “Law and Order and the Rise of the Pop Culture Prosecutor.”  David noted that unlike most lawyer television shows of the past, the long-running series focused on prosecutors rather than defense lawyers. While it is certainly true that most television and motion picture lawyers have been defense attorneys rather than prosecutors, the first-ever television lawyer show was actually about a prosecutor.

In 1947, Jerry Fairbanks Productions filmed a pilot episode of a show called Public Prosecutor, and when the show was picked up by NBC for broadcast in 1948, the company filmed an additional twenty-six episodes for the network.

Public Prosecutor starred John Howard (pictured above) as a prosecutor named Stephen Allen who both solved crimes and prosecuted miscreants.

In what would become the tradition of “good guy” prosecutors, Stephen Allen was much more interested in making sure that the actual guilty party was charged with the crime than he was in winning easy courtroom victories. (Star and narrator John Howard, whose real name was John R. Cox, is best known as the actor who played Kathryn Hepburn’s fiance in The Philadelphia Story and Fred McMurray’s boss on the long running television show, My Three Sons.)

Public Prosecutor is probably best remembered in the history of television for being the first television show to be filmed first and shown later. Earlier shows had been broadcast live.

Unfortunately, episodes of Public Prosecutor were filmed in twenty-minute installments — a common format for radio shows of that era — but in the fall of 1948, NBC decided to shelve the show in favor of another series whose episodes ran for thirty minutes, which had emerged as the new television standard.

Public Prosecutor sat in the can, unshown, until 1951, when its rights were purchased by the Dumont Network (one of the major players in early network television). To extend the episodes to thirty minutes, Dumont stopped the film just before the guilty party was revealed and brought in a panel to discuss what they had seen. The panel, along with the television audience, then tried to figure out “Whodunit?” Once the panelists had made their guesses, the film was restarted and the remainder of the episode was shown.

Public Prosecutor ended after the 1951-52 season, as no efforts were made to film additional episodes. However, surviving episodes from 1947-48 suggest that the show was quite good, particularly given the early date of its production. Two episodes, “The Man Who Wasn’t There,” and “The Case of the Comic Strip Murder,” can be viewed online at http://ctva.biz/US/Crime/PublicProsecutor.htm.  The former episode can also be see at http://www.archive.org/details/PublicProsecutor-CaseOfTheManWhoWasntThere.

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Law & Order and the Rise of the Pop Cultural Prosecutor

Years before Law & Order ended its incredible twenty-year run on May 24, 2010, the series had staked its claim to being the longest-running primetime series featuring lawyer characters. In addition, the series included an important change in how the heroic pop cultural lawyer is represented. In earlier lawyer shows with especially lengthy runs, such as Perry Mason in the 1950s and ‘60s and Matlock in the 1980s and ‘90s, the lawyer hero was customarily a criminal defense lawyer. Even the fictional firm of McKenzie, Brackman, Cheney & Kuzak in L.A. Law had a department devoted to criminal defense work. In Law & Order, by contrast, the heroic lawyers are always prosecutors.

What explains this very popular shift in imagery? Part of the reason is the general sense that crime has run amuck. Starting in the 1980s, a commitment to crime control replaced the drive for racial and economic justice as the preeminent domestic policy. Any politician on the local, state, or national level who seems “soft on crime” is doomed at the polls. More generally, the Reagan Presidency marked a national turn to the right, and in subsequent decades even the Democrats who have occupied the White House have been moderates. The heroic pop cultural prosecutor is well suited to crack down on crime and to embody conservative values.

Over the years, Law & Order became a genuine cultural phenomenon. The series’ popularity led to spin-offs and to countless reruns of both the original episodes and the spin-offs. In the end, Law & Order in all its forms not only reflected a public sentiment and emergent politics but also powerfully reinforced that sentiment and politics.

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