LETTERS

Concerning Equality

To THE EDITOR:

Bertrand Russell's remark that "The fanatic of democracy is apt to say that all men are equal," in the January 1960 Alumni Magazine brings to mind an early address delivered on the Dartmouth College campus in which this expression played a key part. The speaker was Orestes Augustus Brownson, native Vermonter, and an intimate of Emerson, Ripley, Alcott, and others of the star-studded galaxy of intellectuals that dom- inated the American cultural scene in the mid-19th century. He spoke before. the Gamma Sigma Society, July 26, 1843, as one of the features of the commencement exercises. Daniel Webster and Rufus Choate spoke on the same program.

Brownson described the axiom as "a mere dream, a silly dream, unsustained by a single tangible to waking sense." He went on to implore the Dartmouth lads to find their own peculiar "inequalities," resist the leveling tendency of the crowd; and make them- selves felt in their age and generation for good.

There can be no quarrel with either speaker in his use of the expression. But there is a semantic ghost in all this that might be exposed. In the concrete, obviously, no two individuals are equal to one another any more than the imprints of two thumbs are alike. But equality in the abstract, as a theory and an ideal, as Thomas Jefferson used it in the Declaration of Independence, and as Lincoln used it at Gettysburg, is something else. As an abstraction, it has a definite and provocative meaning for those who have struggled to create a more progressive society. In this sense the aphorism is hardly "silly" nor the user of it necessarily a "fanatic."

Columbus, Ohio

Michigan Replies

To THE EDITOR:

I was a bit amazed and somewhat perturbed by the observations of Mr. Shaver in the February issue. As an alumnus of Michigan as well as Dartmouth, I must take exception to his observations as to what he observed on the Michigan campus. One could not fail to conclude that what he looked for in Ann Arbor were those things he was acquainted with in Hanover. Admittedly the Michigan libraries are excellent places to meet girls, but perhaps if Mr. Shaver went up into the Baker stacks some weekend, if he ever is in Hanover on a weekend, he would be distracted to find the many levels liberally arrayed with members of the opposite sex. As for drinking, and I enjoy the pastime, drinking on the Michigan campus is carried out surreptitiously in that the school does not condone, officially or unofficially, violation of the law.

The distraction caused by coeds seldom prevented lecturers from teaching and a proportionately larger number of students ded- icated themselves to studies than to four-day weekends. I feel that the Dartmouth stu- dent is potentially the better student but I encountered many students while in Hanover who were students in name only. On the whole I am forced to class the Hanoverian as the poorer student. The cause however may be socio-economic rather than social.

Madison, Wis.

First Snow Sculpture

To THE EDITOR:

Fifty Years of the D.O.C. was an excellent presentation of the many activities and the history of the Outing Club. It brought back many happy memories.

Not to quibble,—just to give myself the satisfaction of suggesting a correction, - I think the first Outdoor Evening was earlier than 1930. I have a picture in my album of the ice pillars I helped build at Occom Pond for the Outdoor Evening which was held in 1923. The snow castle in the picture I enclose (see cut) was one I designed and built for Outdoor Evening in '24 or '25 when the football field was flooded to provide a rink for the exhibition skating. It was opposite the stadium and the skaters came on stage through the doorway of the castle. Actually this was the first piece of snow sculpture at a Dartmouth Carnival, though it was hardly in a class with what is done now.

Havertown, Pa.

Nothing New

To THE EDITOR:

In a recent ALUMNI MAGAZINE and in the newspapers the articles about the suggested summer term state the attendance of women is an entirely new idea.

The new term suggestion is quite different from the old summer school idea. I did attend a summer school session in 1905 and there were many young ladies attending at that time; in fact, Crosby Hall was reserved as a ladies' dormitory.

Newburyport, Mass.

For a New Museum

To THE EDITOR:

During this era of rapid growth in Dartmouth's teaching facilities and physical equipment, attention might be given to the need for a modern Natural History Museum, and the acquisition of suitable collections of birds and other animals, native at least to the New Hampshire-Vermont region. The present museum is far below Dartmouth's standards in so many other directions, and can be of little value to students interested in local wild- life and the broader field of conservation. Wouldn't it be possible to allocate part of the funds now being raised in the Capital project to an undertaking of this sort?

New York, N. Y.

A Point of Law

To THE EDITOR:

I trust it will not appear presumptuous for a law student to make a comment upon Prof. Smead's article in the February i960 issue on a point which I am confident that scores of readers far more competent in the law than myself must have found very disturbing.

It is apparent from the fourth full paragraph on page 42 of "The Broadcasters and the Government" that Prof. Smead's belief that regulation or censorship over the content of radio and television programs is constitutional because several lower court opinions have so held and "when (the) losing parties tried to appeal" the Supreme Court upheld the substance of the lower court's holding by ."denying the petitions for certiorari" (emphasis mine). It appears that the Professor has confused the effects of appeal and certiorari in Supreme Court practice. An appeal is not "denied" but "dismissed," and the effect of dismissal, although not known with exact certitude in all circumstances, is theoretically at least stronger authority than a full opinion by a unanimous court. On the other hand, certiorari is vastly different. The importance of a denial of certiorari, in the words of Mr. Justice Frankfurter in the case of Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950), "need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter 'of sound judicial discretion.'... This Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated." (Emphasis mine.)

What I have said , does not touch on the actual merits of the controversy involved, which is a real and vital one in American law today. Perhaps Prof. Smead's conclusion is correct; however, to pronounce an absolutely unqualified statement to that effect after marshaling the type of "evidence" presented and then to close his argument with the statement that "it must" be so because

"that is the American system of jurisprudence" is quite unfortunate.

Haddonfield, N. J.

Prof. Smead Replies

To THE EDITOR:

I appreciate the opportunity to reply to John H. Higgs.

First, as to the Appeal. In my article, I did not use this term in the technical sense of the Federal Judicial Code. Obviously, I could not have done so because the Appeal does not lie in the kind of cases I was discussing.

Second, as to the Certiorari. I have answered Mr. Higgs' objection in a Second Statement filed with the FCC, upon its invitation, on February 12. I shall therefore quote from this statement.

Although Mr. Higgs' explanation of certiorari " is correct, it is irrelevant. The im- portant point is that" as a result of the Supreme Court's denial of petitions for certiorari, "the Court of Appeals' decisions are left standing as the only authoritative statement of the law." The Supreme Court Judges

"were well aware that this would be the effect of their denials of the writ and they nevertheless denied it."

This Second Statement is now part of the official record of the FCC's recently completed hearings on program regulation and is open to the public.

Professor of Government

Hanover, N.H.