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Shocks the Conscience: A Constitutional Test from the Margin?
By Carol Pauli
New ideas sometimes break into the law from the margins—from voices formerly
excluded from the field.1 This process has been especially visible as women and members
of ethnic minority groups have won places in law schools and then in courtrooms. 2 Some of
these new ideas are the roots of revolution; others, explorations and deviations, raising
questions and conflict.3
One such idea appears to be the constitutional “shocks the conscience” test. It was
the work, in part, of Dolly Lee Butler, a woman who took night school classes in law, failed
the California bar exam multiple times before finally gaining admission, and then won her
only U.S. Supreme Court case.
Butler was born in 1893, around the time that Belva Lockwood, denied admission to
practice law in Virginia because she was a woman, was also be denied relief by the U.S.
Supreme Court.4 Practicing law was not a “privilege or immunity” protected by the
Fourteenth Amendment from state action.5 This was an echo of the Court’s holding twenty
years earlier in the case of Myra Bradwell, who had been denied admission to the bar in
Illinois.6 The justices explained back then, “The natural and proper timidty and delicacy
which belongs to the female sex evidently unfits it for many of the occupations of civil life.”7
As Carrie Menkel Meadow has pointed out, however, the real women seeking
admission to the bar in these early times often did not fit the “nineteenth century story
created by male legislatures.”8 Bradwell’s supposed “timidity and delicacy” had led her to
publish a legal newspaper and to campaign for legal and social reforms, including suffrage
1
Carrie Menkel-Meadow, Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law, 42 U.
MIAMI L. REV. 29 (1987).
2
Id.
3
Id.
4
Ex parte Lockwood, 154 U.S. 116 (1894). Belva Lockwood asked for leave to file a petition for mandamus to
require Virginia to admit her to practice under its statute. The statute stated that “any person duly authorized and
practicing as counsel or attorney at law in any state or territory of the United States, or in the District of Columbia,
may practice as such in the courts of this state.” The U.S. Supreme Court denied leave and held that the Virginia
courts could determine whetehr the word “person” in the statute was confined to males.
5 Id.
6 Bradwell v. People of the State of Illinois, 83 U.S. 130 (1872).
7 Id.
8 Menkel-Meadow, supra note 1, at 37.
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for women.9 A generation later, Belva Lockwood also lobbied for suffrage, as well as
litigating for equal pay. Another early woman lawyer—far from timid and delicate--tackled
criminal defense. Another was, herself, charged with crimes.10
In a similarly rebellious vein, Dolly Lee Butler lived out the kind of determined story
that is the opposite of delicate and timid preferences. She left a religious upbringing in the
Midwest for Hollywood, became dancer and movie “extra,” and married four times.11
Eventually, she became a leader among women attorneys in Southern California and took
up the cause of a Mexican-American man convicted on drug charges.
The case was Rochin v. California.12 Antonio Richard Rochin was in bed with his wife
one night when police entered his home to search for drugs. Rochin quickly swallowed pills
that had been beside his bed. Police tried to stop him. They scuffled. Then police brought
him to a hospital emergency room to pump his stomach. The question before the Court was
whether, under the Fourteenth Amendment, state police could use the contents of Rochin’s
stomach as evidence against him. In reversing Rochin’s conviction, Justice Felix Frankfurter
wrote,
[W]e are compelled to conclude that the proceedings by which this conviction was
obtained do more than offend some fastidious squeamishness . . . .This is conduct
that shocks the conscience. . . . They are methods too close to the rack and the screw
to permit of constitutional differentiation.13
I am interested in Dolly Lee Butler because I grew up calling her “Aunt Hazel.” She
was my grandmother’s younger sister. Besides changing her surname with each new
husband, she decided to change her first name as well. My grandmother, Rose, rolled her
eyes at her sister’s choice of “Dolly.”
The two had been born in Nebraska and spent their teens in Zion, Illinois14—a
Christian, communitarian, theocracy on the shore of Lake Michigan about 40 miles north of
Chicago.15 The city was four years old when they arrived in 1905. It had been founded by
John Alexander Dowie, a Scotsman who preached faith healing and a flat Earth.16 His
purpose was “the extension of the kingdom of God upon earth . . . where God shall rule in
every department of family, industry, commercial, educational, ecclesiastical and political
life.”17 Zion City forbade, among other things, gambling, tobacco, alcohol, and pork.18 It
employed residents in community industries making lace and chocolates and publishing a
Id.
See id. for more examples of the
11 Butler personal papers, on file with author.
12
342 U.S. 165 (1952).
13 Id.
14 Butler personal papers, on file with author.
15 Zion, IL, ENCYCLOPEDIA OF CHICAGO, http://www.encyclopedia.chicagohistory.org/pages/1399.html
16 Id.
17 Harris v. City of Zion, Lake County, Ill. 927 F.2d 1401 (7th Cir. 1991).
18 Id.
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weekly newspaper, “Leaves of Healing.”19 The city seal included a white dove, a cross, and
the legend “God reigns.”20
Butler fled to Chicago, married at 18, and lived in Vancouver, B.C.,
in Portland, Ore., in San Francisco and Pasadena over the next decade,
working at a variety of jobs: designing electric signs, operating a
switchboard, running a taxi company. In Southern California, she trained
in a strenuous form of dancing, advanced by Denishawn Studios, and
took on small roles in motion pictures under the name of “Dolly Dawn.”
But the work that captured her imagination was law. Working as a clerk for an
attorney in Los Angeles, she enrolled as a student first at the University of Southern
California and then as a part-time evening student at Southwestern University. She failed
the California Bar Exam in 1927 and 1928 (when she also failed the bar exam for Nevada).
In 1929, having attained a Bachelor of Laws degree from Pacific Coast University College of
Law, she was a member of its advisory board. Still, she failed the California Bar Exam in
1930, 1931, 1932, and 1933.
By this time, she had divorced her first husband, Herbert Pritchard, and her second
husband, D. Kellogg, and her third husband, Julian Thruston, the attorney who had
represented her in her divorce from Kellogg.21 In 1934, Dolly Pritchard Kellogg Thruston
married John Butler. She probably met him in Georgia, where she had moved on the advice
of a California attorney who said that the bar exam would be easier there. She was
admitted to practice in Georgia in 1935, at the age of 42. Although a J.D. degree was not
required, she earned one nonetheless, in 1940, from Blackstone College of Law in Chicago.
Her final paper was a florid work on the English Court of Equity, “the conscience of the
king.” Despite her early departure from Zion, it has the same tone as a Sunday sermon. Its
closing paragraph offers a sense of its academic rigor:
When the decisions come to be read out before the great courts of Time it will
probably be found that they are being read in the light of equity and equality. “For
he shall judge his people with equity.” There we shall see, in all its brilliance, that
luminous ray set as a beacon high on a dangerous shore of the strict letter of the law.
There it will send forth its rays to help the defenseless and the oppressed—always
the light of good—of GOD!22
Leaves of Healing: The Life, Ministry, and Message of John Alexander Dowie,
https://sites.google.com/site/leavesofhealing/home
20 The seal was eventually found unconstitutional. Harris v. City of Zion, 927 F.2d 1401, 1415 (7th Cir. 1991).
21 Butler personal papers, on file with author. In a good humored exchange of letters several years after the
divorce, she addressed her ex-husband, Julian Thruston, “Dear Jewel,” and he praised a sketch that she had
drawn in place of her signature on an earlier letter.
22 DOLLY LEE BUTLER, EQUAL JUSTICE UNDER LAW, thesis for degree of Juris Doctor, 1940.
19
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Butler had a successful practice in Georgia, where she
served as president of the state legislative council.23 When she had
amassed enough professional experience in the South, first in
Georgia and then in Tennessee, she returned to California and was
admitted to practice. 24 She opened a small office in her home on
La Cienega Boulevard in Hollywood and became active in the
international women’s legal sorority, Iota Tau Tau, and in the
Southern California Women Lawyers Association,25 which
advocated for women’s rights.26 My branch of the family, in Chicago, glimpsed her news at a
distance: She represented the comic actor Lou Costello following the drowning death of his
infant son. She specialized in nonprofit organizations. In the 1960s, she represented the
Beatles’ guru, Maharishi Mahesh Yogi.
Butler was personally drawn to spiritual mysticism. At the time that the United
States was entering World War II in 1942, she joined the Theosophical Society in
America,27 a movement that aimed to create harmony by elevating “the divine spirit”
within.”28 She was drawn to the Rosicrucians, a secret society that applied “natural laws” in
order to achieve union with the “Absolute Divine Mind.”29 Late in life, she would receive an
“Award of Merit” from the First Temple of Astrology in Los Angeles.30
In Rochin31 Butler was co-counsel with A.L. Wirin,32 nicknamed “Mr. ACLU.” He had
come to the United States from Russia as a child, graduated from Harvard and then from
Boston Law School. He was the first full-time attorney hired by the American Civil
Liberties Union,33 and by the time of Rochin, he had been chief counsel for the Southern
Havid L. Hudson Jr., Dolly Lee Butler, ENCYCLOPEDIA OF THE FOURTH AMENDMENT 141 (John R. Vile & David L.
Hudson Jr. eds., 2012.)
24 Butler apparently was concerned that something in her history might weigh against her admission to the
California Bar. In a letter, Thruston reassured her, “if I should be contacted it will be my pleasure to use my
keenest discretion and to recommend you most highly.”
25 The group, at the time, was called the Southern California Council of the National Association of Women
Lawyers (NAWL).
26 Selma Moidel Smith, NAWL’s Southern California Council, 87 WOMEN LAWYERS J. 1 (Fall 2001) (For example,
the organization at first worked on establishing property rights for women and later advocated maternity
leave for government employees. Id.)
27 Butler personal papers, on file with the author.
28 Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is Re-Shaping
our Legal System, 108 PENN. ST. L. REV. 165, 168 (2003)(quoting J. GORDON MELTON, THE THEOSOPHICAL
COMMUNITIES AND THEIR IDEAL OF UNIVERSAL BROTHERHOOD, IN AMERICA’S COMMUNAL UTOPIAS 396 (Donald E. Pitzer
ed., 1997)).
29 Introduction to the Rosicrucian Order AMORC, https://www.rosicrucian.org/faq
30 Butler personal papers, on file with the author.
31 The case had been argued at the appellate level by David Marcus, a Los Angeles attorney who had also
represented the Mexican consul and who had argued a 1946 school desegregation case, Mendez v.
Westminster, which forshadowed the legal arguments in Brown v. Board of Education.VICKI L. RUIZ & VIRGINIA
SANCHEZ KORROL, LATINAS IN THE UNITED STATES: A HISTORICAL ENCYCLOPEDIA 445-46 (2006).
32 Wirin used his initials, A.L., rather than his given name, Abraham Lincoln.
33 David I. Hudson Jr., A.L. Wirin, ENCYCLOPEDIA OF THE FOURTH AMENDMENT (John R. Vile, David L. Hudson Jr. eds.
(2012).
23
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California ACLU for nearly 20 years.34 Unlike Butler, he was an atheist35 and appears to
have viewed conscience as a personal phenomenon, subject to variation among cultures
and individuals.
He drew on this inconsistency when he represented a Russian immigrant who had
failed to get the travel documents needed to leave the country after being ordered deported
twenty years earlier. The deportation order was issued because he allegedly had
advocated the overthrow of the U.S. government. Wirin took issue with the underlying
statute, requiring deportation of aliens who were guilty of “crimes involving moral
turpitude.”
[M]oral standards differ in different parts of the United States. To determine the
moral standards that prevail in different parts of the world, varying as they do not
only from those in the United States but from each other, is an insuperable task.
Moreover, since the statute applies not only to aliens convicted prior to entry but to
those who admit the commission of such a crime prior to entry, there is no possible
way of determining whether the moral views, or the courts, of the country where
the act was committed would hold that it constituted either a criminal offense or
immoral conduct.36
In later briefs, Wirin referred to conscience as a highly individual “duty to God.37 In
a 1956 amicus brief on behalf of a Chinese citizen facing deportation on the basis of his
alleged membership in the Communist Party, Wirin referred to conscience as part of the
personal realm that is protected by procedural Due Process.38 In another brief that year,
Wirin argued on behalf of a lawyer denied admission to the California bar because of his
alleged past Communist connections.39
[R]espondents manifest a distrust and suspicion of petitioner's political opinions
because they happen to conflict with their own cherished beliefs. . . . Such error is
the kind that invariably follows when governments trespass upon forbidden areas
of conscience.
Five years after Rochin, in a 1957 amicus brief regarding obscene speech, Wirin
warned explicitly against letting the moral worries of judges and juries determine
constitutional limits.40
ACLU archives.
Id.
36 Brief for the Appellee, 1952 WL 82334, U.S. v. Spector, 99 F. Supp. 778 (S.D. Cal. 1951).
37 Petitioners’ Consolidated Reply Brief, First Unitarian Church of Los Angeles v. County of Los Angeles, 1958
WL 91881 (U.S.) 357 U.S. 545 (1958).
38 Brief of American Civil Liberties Union, Southern California Branch, Amicus Curiae, 1856 WL 88914, Huyn v.
Landon, 350 U.S. 984 (1956).
39 Id.
40 Brief of ACLU Southern California Branch as Amicus Curiae, State v. Alberts, 292 P.2d 90 (App. Dept. Sup. Ct.
L. A. Cty. 1956).
34
35
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The statute at bar proscribes obscene literature by punishing those who write,
publish and disseminate it. As construed by California Courts, this statute condemns
sex discussion if, in the opinion of the judge or jury, it tends to arouse lasvicious
thoughts and lustful desires. The menace of such a law is obvious for it allows a trier
of fact to enter the private domain of the conscience in order to purify what is found
there.41
Wirin’s concerns before and after Rochin were shared by some on the Court. As the
justices deliberated the Rochin case, it was Justice Felix Frankfurter who justified
overturning Rochin’s drug conviction because the behavior of the police was “conduct that
shocks the conscience.”42 Hugo Black objected to such “nebulous standards.”43
Indeed, the “shocks the conscience” test has been the subject of controversy ever
since.44 . . . .
Id.
HOWARD BALL, HUGO L. BLACK: COLD STEEL WARRIOR 241 (1996).
43 Id.
44 See, e.g., Rosalie Berger Levinson, Time to Bury the Shocks the Conscience Test, 13 CHAP. L REV. 307 (2010).
41
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