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MARTIN GLASSER, The Judicial Philosophy of Felix Frankfurter - Ralph Raico, New Individualist Review 
New Individualist Review, editor-in-chief Ralph Raico, introduction by Milton Friedman (Indianapolis: Liberty Fund, 1981).
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The Judicial Philosophy of Felix Frankfurter
IN HIS DISCUSSION of the causes of the dissolution of the United States in 1861, Lord Acton stated that “democracy . . . must stand or fall according to its choice, whether to give the supremacy to the law or to the will of the people.”1 Since the end of the Civil War we have been more or less continuously choosing in favor of the supremacy of the will of the people. During this period only the branch of government not responsible to the populace, the Supreme Court, resisted the popular will and stood as a bulwark in defense of the law and the concept of limited government proclaimed by the Constitution. In doing its traditional task of defending liberty against the encroachment of the State, it earned the scorn of the many “progressive” social thinkers who looked with anger at the Court for striking down their legislation.
As the tradition of liberty gradually eroded under the pounding of its critics, the Court slowly renounced its duty to enforce the Constitution and eventually capitulated. Foremost among the present members of the Court who have led in this renunciation is Associate Justice Felix Frankfurter. Appointed to the Court in 1939, he personifies the Court’s efforts to prostrate itself at the feet of the popular branches of government.
With the New Deal came a series of laws which violated the spirit of the Constitution. Twelve of these laws were struck down by the Supreme Court as unconstitutional. But even while the Court was dealing setback after setback to the New Deal, the minority of the justices who supported the interventionist legislation were erecting the judicial philosophy of “self-limitation” or “self-restraint” which was later to dominate the Court. Justice Stone’s statement that “the only check upon our own exercise of power is our own sense of self-restraint,”2 set the pace for this group.
The Justices who opposed the interventionist measures of the legislature were following the classical doctrine of judicial review, first applied by Chief Justice Marshall in the famous case of Marbury vs. Madison.3 Marshall stated that it is the duty of the Judiciary to decide which among conflicting rules governs a case. If the conflicting rules are the Constitution and ordinary law, the Constitution as the paramount law of the land must prevail. If the legislature is free to pass laws without regard for the Constitution, the Constitution must be rendered ineffectual. To the Judiciary evolves the duty of seeing that constitutional limits are observed, since it cannot be expected that the legislature will enforce the Constitution against itself. The conservative Justices rather than the “judicial restraint” wing of the Court were in the classic stream of constitutional interpretation when they struck down the interventionist economic legislation, although these same conservative justices were often as unwilling to apply judicial review in defense of civil rights as the present court is to apply it in defense of property rights.
Those who upheld the Marshallian view were soon crushed. In 1937 the Court capitulated and the New Deal went on a rampage. Eventually, with the death and retirement of the alleged reactionaries, the Court became entirely dedicated to the ideal of judicial self-restraint. However, there arose a faction which put limits on the idea of judicial self-restraint. This faction did not derive from those judges who followed Marshall, but found its roots in the decisions of Justice Brandeis. Brandeis was one of the earliest American advocates of government intervention, but was also one of the staunchest defenders of civil liberties. It was he who said that “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.”4 This school of thought is known as “activism” or “dynamism” because of its advocacy of judicial review in cases concerning civil rights. It stands for an absolute view of the First Amendment. Its opponents sneeringly refer to its position as the defense of “preferred liberties.”
In opposition to the activists, those who followed judicial self-restraint all the way put up the old arguments which were founded on the decisions of Justice Holmes and which were used against the conservatives who defeated Roosevelt’s pre-1937 legislation. They represented an extreme reaction to the conservative view. Whereas the conservatives vetoed freely those laws they thought to be unconstitutional, the self-restraint school insisted on abstention from almost all interference with the “representatives of the people.” They claimed that the conservatives abused judicial review. Of course, judicial review was not abused, the legislature merely abused the Constitution. This confusion is not rare. The conservative Justices were accused of asserting property rights to the detriment of human rights, whereas they only maintained that property rights are an inseparable part of human rights.
With this extreme fear of judicial review, the self-restrainers saw no reason to make exceptions in civil liberties cases. Needless to say, the controversy over whether civil liberties are to follow property rights out of the fold of judicial protection has totally obfuscated any thought of property rights. The main issue today is that between Justices Douglas and Black on the activist side, and Justice Frankfurter on the self-restraint side, in the battle over whether civil rights shall remain exempt from the popular will in the form of Congress, the President, and the state governments.
From a liberal point of view, neither side is attractive.5 However, the Douglas-Black activist position does have two things in its favor:
As mentioned previously, the Frankfurter position was loosely derived from Holmes. Holmes once said to Justice Stone: “About seventy-five years ago I learned that I was not God. And so, when the people . . . want to do something I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddammit, let ’em do it!’ ”6 Frankfurter’s judicial philosophy builds on this brief and informal statement.
An admirer of Frankfurter has said of him that:
He would resolve all reasonable doubt in favor of the integrity of sister organs of government and the people to whom they must answer. He would adhere, that is, to the deepest of all our constitutional traditions, the dispersion of power—though, as in the “flag salute” cases, the immediate result offends his own generous heart’s desire. He is wary of judicial attempts to impose justice on the community; to deprive it of the wisdom that comes from self-inflicted wounds and the strength that grows with the burden of responsibility. It is his deepest conviction that no five men, or nine, are wise enough or good enough to wield such power over the lives of millions. In his view, humanitarian ends are served best in that allocation of function through which the people by a balance of power seek their own destiny. True to the faith upon which democracy ultimately rests, the Justice would leave to the political processes the onus of building legal standards in the vacuum of doubt. For in his view only that people is free who chooses for itself when choice must be made.7
Readers of Orwell’s Nineteen Eighty-Four will recall the insidiously illiberal effects of altering the definitions of words. The above panegyric illustrates Orwell’s contentions. One may easily assume that the person described is a liberal and not suspect that he defends the government’s aspiration to omnipotence.
Professor Wallace Mendelson, the author of this plethora of praise, establishes Frankfurter as the champion of the people. It is indeed a noble task to defend the free choice of the people! However, one must be forgiven for closer investigation of precisely what comprises the “people” as defined by Professor Mendelson and Oliver Wendell Holmes, Jr. They were, it appears, under the impression that the people and the legislature are coextensive. But no less a thinker than John Stuart Mill was of the opinion that “the ‘people’ who exercise the power, are not always the same people with those over whom it is exercised, and the ‘self-government’ spoken of, is not the government of each by himself, but of each by all the rest.”8 In a manner similar to Rousseau’s wonderful transposition of the people into the General Will, the apologists for unlimited legislative power have transposed the people into the legislature.
PRACTITIONERS OF Hitler’s “big lie” technique would be unsurprised at the effectiveness of this method. Expedience is the only criterion for a self-aggrandizing politician. Why is the politician aided in his task by those who should be disinterested in these matters? Yet they do aid him by confusing free individual action with the decisions of the legislature. So liberally-oriented minds become confused in their efforts to distinguish between demagoguery and the liberal point of view. America’s tradition could absorb the New Deal only through semantic tricks which identified it with its arch-enemy, liberalism. In this spirit Frankfurter and company scream about the “essential democracy,” free choice, and seeking one’s own destiny, while opting for elective despotism.
Of course the villains of these Statist theatrics are the Supreme Court Justices, for whether they exercise it or not, they hold the constitutional power to veto the alleged free choice of the people. And “even the narrow judicial authority to nullify legislation . . . serves to prevent the full play of the democratic process.”9 Further, by refusal to exercise their veto, they inevitably place the stamp of constitutional authorization on interventionist legislation in the eyes of the public.
According to Frankfurter, “to fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies . . . serves to vindicate the self-confidence of a free people.”10 That is, the democratic process justifies the confidence of the people and aids in their growing political maturity. The legislature must assume responsibility for public policy and not the Supreme Court.
The only thing that grows with the burden of legislative responsibility is power, and as power mounts, freedom recedes. The legislature assumes responsibility which rightfully belongs to the people, and I use the term “people” in its simple, ungarnished definition. The only thing that can teach the legislature responsibility—and by this I mean, the knowledge of its proper limits—is to have the Court remind them of the exact extent of its power, whenever this power is exceeded.
Thus the idea that each man should decide for himself has been twisted to mean that the legislature should decide for itself without being called to account by the Court. In fact, the Statists have assigned to the Court the position that the liberals have assigned to the legislature; and, further, they have assigned to the legislature the position that the liberals have assigned to the people. The result is that freedom has become power.
Even the venerable concept of judicial impartiality has been violated by such reasoning. Frankfurter contends that “it can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench.”11 A judge should not write his “private notions of policy into the constitution.”12 What does Frankfurter suppose he is doing when he abstains from invalidating laws? Inaction, as well as action, is a manifestation of “private notions.”
This is only an aspect of Frankfurter’s type of judicial impartiality. The crux of his injustice to this concept is his complete misuse of it. The idea of judicial impartiality implies that the judge should unbiasedly apply the law in all cases. Frankfurter wants the Court to generally refrain from invalidating any legislation as being unconstitutional. He has dressed the policy of judicial self-restraint in the robes of an impartial refusal to impress one’s personal ideas on the adjudication of a case. An independent judge, not to be influenced by any considerations but constitutionality, is seen to be biased, whereas a judge who slavishly follows the legislature is hailed as one who refrains from imposing his own feelings on a case.
Translated into action Frankfurter’s ideals turn out such decisions as those in the flag salute cases.13 In these cases Frankfurter talks about the problems of national security and individual freedom in a most grandiloquent manner, concluding that if we are to cater to each individual conscience we must weaken our national security.
It seems that the threat to our national security came from certain young school children who refused to salute the flag on the basis of sincere religious belief. More confusion: this time highfaluting principles were related to irrelevant facts. Will the United States crumble if a group of children refuse to salute the flag? God save America if this be so, because the compulsory flag salute won’t. Nobody can deny the primacy of national security; anybody can deny that the few school children in this case threatened it.
But Frankfurter states that it isn’t his duty to decide on the wisdom of an act of a legislature (i.e., in at least one of these cases, the Board of Education which was constituted by the legislature). Although those Justices who decided in favor of the school children probably thought that they had acted wisely on the basis of some extraconstitutional moral standard, they voted for the school children strictly on the basis of their constitutional position—that the fourteenth amendment guarantees religious liberty through its incorporation of the first amendment. The ones who acted emotionally in these cases were Frankfurter and his followers, and they voted according to their emotional attachment to unrestricted majority rule.
The only thing that Frankfurter can offer to the Jehovah’s Witnesses is the glory of the democratic process. What does this mean? A hopeless minority must campaign to change the prejudicial laws of a hostile majority. But it was precisely the purpose of the Constitution to guard against the majority’s incursions into minority rights, so that the minority would not have to rely on the capricious tolerance of the majority. It is essential to democracy that the polls be open to all; it is essential to liberty that individual rights are not determined at the polls.
In these cases, Justice Brandeis’ warning against governmental interference with liberties in the name of some beneficent purpose has been ignored. National security has been set up as a basis for trampling on religious liberty just as political freedom was trampled on in cases where allegedly subversive activity was subject to restrictive legislative activity.
In voting against the Communists’ political freedom, Frankfurter tells us that the government must be strong enough to survive. The German Communists, along with the Jews, were the first inmates of Hitler’s concentration camps. Both of these groups represented a threat to the safety of the Reich. By legislative inquisition and prior arrest (i.e., arrest for yet to be committed crimes, or such committed crimes as advocacy or conspiracy), we follow the same path. Just as flag salutes will not save us, deprivation of the Communists’ political liberties will not save us. However, it cannot be denied that the latter method will most definitely preserve a land that bears a striking geographical resemblance to the United States, but with none of its political characteristics.
In the Dennis case, Frankfurter asserts that the decision as to whether freedom or national security shall prevail entails the utilization of a balancing process. Needless to say this process is the function of the Congress for the “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.”14
After listing the usual facts against the Communists, Frankfurter poses these questions to the Court: “Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government’s protection?”15 The answer is clear. The first amendment deprives the federal government of the power to abridge freedom of speech.
The defendants in Dennis were convicted of such nebulous crimes that one is reminded of the prosecutions common to Czarist or Communist Russia. The Constitution provides for treason. No one would oppose the conviction of seditioners. These men are accused of conspiring to teach conspiracy!
THE PROBLEM IS that we have simply ignored the form the internal Communist threat is taking. And Frankfurter seems to realize this when he quotes George Kennan’s plea for an end to the use of Communist technique in the struggle against them.16 However, Frankfurter insists policy decisions are within the sphere of the Congress and not the Court. He may acknowledge that a policy is unwise, but he may not strike it down on this basis. The formula of leaving it to Congress is nothing more than a declaration that the only restraint on Congress is its own self-restraint. It is merely deceptive to talk about a balancing process between national security and freedom of speech when the only spokesman for the latter side has disqualified itself. In a word, the whole thing adds up to the end of freedom for anyone who does not have the votes to protect himself.
The most horrible thing about all this is Frankfurter’s usually persistent advocacy, especially in the flag salute cases, of keeping open the “remedial channels” of the “democratic process.” This should be sacrosanct and beyond legislative interference. Everyone must be entitled to campaign for seeing his own point of view prevail in the legislature. Everyone? Obviously the American Communist is of a certain gender which finds no place in the expression “everyone.”
It is true that Frankfurter maintains in Dennis that “the democratic process at all events is not impaired or restricted.”17 But the Communist Party was outlawed and prevented by law from partaking in the democratic process. It is true that non-Party members could restore its liberty, but it cannot be denied that the remedial channels had been all but completely blocked through the illiberal rules of the Smith Act.
Individual liberty has found no friend in Frankfurter in a variety of other cases. In Beauharnais v. Illinois18 his opinion upheld a criminal libel statute as applied to an area of discussion proscribed by the state: publications which expose “the citizens of any race, color, creed or religion to contempt, derision or obloquy.” The defendant had distributed leaflets expressing opinions against the Negro race which, however reprehensible, were probably shared by a large percentage of Americans. He was not permitted to defend himself by showing either the truth of the statements or the fact that they were not likely to produce a clear and present danger of public disturbance.
In Korematsu v. United States,19 it was determined that the Constitution allows the nation to conduct war. Frankfurter maintains that “to talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as an unconstitutional order is to suffuse a part of the Constitution with an atmosphere of unconstitutionality.”20 In other words, constitutional guarantees are to be overruled by the generals (with the aid of Congress) whenever they feel that it is good tactics, because they have the power to wage war. American citizens who committed no other crimes, but to be of a minority racial origin, must be placed in concentration camps, because the generals think that it is good tactics. It becomes quite obvious that in wartime we are subject to the generals, and we may enjoy what liberty they care to bestow, if this rule is to be followed. The amazing thing in this case is that the uncontradicted evidence points to Korematsu’s unswerving loyalty to the United States.
In his pre-Supreme Court writing and activity, Frankfurter had demonstrated a high regard for aspects of freedom. I think particularly of his part in the Sacco-Vanzetti case and the post-World War I red-baiting activity. However, his judicial thinking has been so dominated by the idea of majority supremacy as manifested by the legislature, that it is impossible to think of him as being in any way a friend of freedom. His attacks on the preferred freedoms of Justice Black and Douglas indicate that he prefers no freedom other than what the representatives of the people care to bestow. And as Lord Acton suggests, freedom has no basis in arbitrary will—even the will of the majority.
IN HIS CLASSIC essay, On Liberty, John Stuart Mill states that the aim “of patriots, was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”21
Frankfurter’s patriot would not acknowledge any limit to the power of the state (which he would spell with a capital “S”). Alexis de Tocqueville described this mentality: “The French, under the old monarchy, held it for a maxim . . . that the King could do no wrong . . . . The Americans entertain the same opinion with respect to the majority.”22 So the Divine Right of kings becomes the Divine Right of majorities.
Liberals have always fought authority, and the most perceptive did not give up the fight when the anciens regimes of Europe disintegrated. Instead they noted and took issue with a new source of authority. Lord Acton, Mill, and Tocqueville all warned against the tyranny of the majority.
Acton stated: “By liberty I mean the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion.”23
Mill held that “the majority, or those who succeed in making themselves accepted as the majority: the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.”24
Tocqueville forecast: “If ever the free institutions of America are destroyed, that event may be attributed to the unlimited authority of the majority.”25
But the lessons of these men have not been heeded and today Frankfurter rests his case for democracy on the right of the citizen to cast a vote for the demagogue who promises the most. His “democratic process” is the only thing that distinguishes our system as it is now from self-admittedly reactionary systems. No longer is the individual sovereign in his own sphere—the majority is. All limits have been thrown to the wind. There is no convincing the alleged progressive that a living Constitution is not a dead Constitution. They firmly believe that “true” democracy can only be manifested by unhindered majority rule and individual or minority conscience is irrelevant to the definition of democracy.
The framers of the Constitution were not so cavalier about minority rights. They viewed their product as being analogous to a corporation charter. The charter allows the corporation to undertake certain activities and forbids them others. When the corporation acts ultra vires, it acts illegally. The Constitution is the charter of the federal government and it defines the limits of the government’s powers. When the government exceeds these limits, it acts illegally. The sovereign majority is supreme within the public sphere, but acts illegally when it acts beyond that constitutionally-defined sphere.
John Locke favored the right to revolt when the government acted beyond its limits. In the United States the judicial safeguard to the Constitution was invented as a peaceful substitute. That is, the courts are to look after our liberty, and for this purpose they must be totally independent of the ebb and flow of political events.
It is Frankfurter’s contention that “to the legislature no less than to the courts is committed the guardianship of deeply-cherished liberties.”26 In reply to this it may be worthwhile to quote James A. Bayard:
How vain is a paper restriction if it confers neither power nor right. Of what importance is it to say, Congress is prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? Do gentlemen perceive the consequences which would follow from establishing the principle that Congress have the exclusive right to decide on their own powers? This principle admitted, does any Constitution remain? Does not the power of the Legislature become absolute and omnipotent? Can you talk to them of transgressing their powers, when no one has a right to judge of those powers but themselves?27
Of course liberty cannot long endure if the spirit of the nation is hostile to it, regardless of even a determined Court. The Court can only check occasional lapses from constitutionality; in the long run, the Congress will approve only those judges who will abide by its policy. The people must be shown that the policy of liberty is still valid.
Conservatives today speak much of a renaissance of their ideals. Unfortunately, liberalism cannot make the same claim. There is no popular opposition to the principles of Statism today. Liberalism is hardly known, let alone followed. Intellectuals either regard it as outdated or as having organically developed into what is called liberalism today. Many think of John Stuart Mill’s development from a liberal to an admirer of moderate socialism as symbolic of the development of liberalism.
Although the future looks bleak, the liberal acknowledges no laws of history and therefore knows liberty will remain within reach as long as he strives for it.
[* ] Martin Glasser is a senior majoring in political science at the City University of New York.
[1 ] “Political Causes of the American Revolution,” Essays on Freedom And Power, ed. Gertrude Himmelfarb (New York, 1955), p. 171.
[2 ]United States v. Butler, 297 U.S. 1, p. 79 (1936).
[3 ] 1 Cranch 137 (1803).
[4 ]Olmstead v. United States, 277 U.S. 438, p. 479 (1928).
[5 ] I use the term liberal according to its 19th century meaning. The 19th century liberal attempted to limit state power and activity and to foster the liberty of the individual.
[6 ] As quoted in Bernard Schwartx, The Supreme Court (New York, 1957), p. 23.
[7 ] Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court (Chicago, 1961), p. 131.
[8 ] On Liberty (New York, 1873), p. 14.
[9 ]West Virginia v. Barnette, 319 U.S. 624, p. 650 (1943).
[10 ]Minersville v. Gobitis, 310 U.S. 586, p. 600 (1940).
[11 ]West Virginia v. Barnette, p. 647.
[13 ]Minersville v. Gobitis and West Virginia v. Barnette.
[14 ]Dennis v. United States, 341 U.S. 494, p. 525 (1950).
[15 ]Ibid., p. 551.
[16 ]Ibid., pp. 554-555.
[17 ]Ibid., p. 552.
[18 ] 343 U. S. 250 (1951).
[19 ] 323 U.S. 214 (1944).
[20 ]Ibid., pp. 224-225.
[21 ] Pp. 10-11.
[22 ]Democracy in America (New York, 1900), I, pp. 259-260.
[23 ] “The History of Freedom in Antiquity,” Essays On Freedom And Power, op. cit., p. 55.
[24 ]On Liberty, p. 14.
[25 ]Democracy In America, I, p. 273.
[26 ]Minersville v. Gobitis, op. cit., p. 600.
[27 ] As quoted in Schwartz, op. cit., p. 7.