The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

PART II

14

From Natural Law to Libertarian Due Process

Substantive Economic Due Process

The development of substantive due process was described by Robert G. McCloskey, a friend of the Court, as “the classic example of ‘government by judiciary.’ ” 1 So accustomed are we grown to this development—whereby courts substitute their own views of policy for those of legislative bodies—that one recalls with a start that the doctrine was only launched in the late nineteenth century.2

The shift from judicial supervision of procedure in the courts to control of legislative policymaking constitutes a truly extraordinary transformation. For judicial review was conceived in narrow terms—as a means of policing the constitutional boundaries, the “limits” of a given power. Little did the Framers dream that the judicial power would be construed as a license to supersede the exercise of power by the other branches within those boundaries.3 In fact, judicial participation in legislative policymaking was unmistakably excluded.4 Under the guise of substantive due process, therefore, the Court has invaded the exclusive jurisdiction of a sister branch; it has violated the injunction of the separation of powers, made explicit in the 1780 Massachusetts Constitution, that “the judiciary shall never exercise the legislative power.” 5 And it has encroached on the sovereignty reserved to the States by the Tenth Amendment. It has done this in the name of a self-created doctrine to legitimate the exercise of power once rationalized under the garb of natural law.6 But neither the Framers of the Constitution nor of the Fourteenth Amendment entertained such notions.

It is axiomatic that all wielders of power, judges included, ever thirst for more.7 This appetite for extraconstitutional power found classical expression in Justice Samuel Chase’s opinion in Calder v. Bull (1798). Taking off from an hypothetical horrible— “a law that takes property from A and gives it to B ” —Chase declared that even in the absence of express restraint by the Constitution, “it is against all reason and justice, for a people to entrust a Legislature with such powers . . . the general principles of law and reason” forbid such acts.8 His appeal to extraconstitutional power was flatly rejected by Justice James Iredell, whose cogent advocacy of judicial review had anticipated that of Hamilton.9 True, “some speculative jurists,” Iredell noted, had stated that “a legislative act against natural justice must, in itself, be void”; but, given a “constitution which imposed no limits on the legislative power . . . whatever the legislative power chose to enact would be lawfully enacted, and the judicial power would never interpose to declare it void.” 10 Reflecting David Hume,11 he said that “the ideas of natural justice are regulated by no fixed standard: the ablest and purest men have differed upon the subject.” 12 Natural law therefore differed little from the “mandate from heaven” of a Chinese emperor, which was “so vague that emperors could readily identify their own will with the will of heaven.” 13 Dean Pound justly characterized it as “purely personal and arbitrary.” 14

Iredell, not Chase, represented the received opinion. The Founders were deeply committed to positivism, as is attested by their resort to written constitutions—positive law. Adams, Jefferson, Wilson, Madison, and Hamilton, states Robert Cover, “were seldom, if ever, guilty of confusing law with natural right.” For them a constitution represented the will of the people “that would determine explicit . . . allocations of power and its corresponding limits.” Chase’s notion, to borrow from Cover, “that out beyond [a constitution] lay a higher law,” 15 departed from the Founders’ commitment to written limits on all power. That commitment sprang from an omnipresent dread of the greedy expansiveness of power, graphically expressed by Jefferson: “It is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” 16

Cover’s view may seem to be contradicted by Chief Justice Marshall’s reference to natural law in Fletcher v. Peck,17 but Marshall’s allegiance to the doctrine is debatable. Justice Frankfurter considered his occasional references to natural law “not much more than mere literary garniture . . . and not a guiding means for adjudication.” 18 Let the contrary be assumed,19 and the Marshall view must yet yield to the Founders’ ceaseless emphasis on a federal government of “limited” powers,20 to the deep distrust of a federal judicial system.21 Incorporation of natural law as a basic presupposition would set at naught the Framers’ efforts to temper federal judicial control over the States. And the ongoing debate about the legitimacy of judicial review itself22 counsels against adoption of the most extreme view of the power—one infinitely expansible by calling on “higher law”; for, as Lord Camden stated, “One should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant.” 23 On this score, finally, when M’Culloch v. Maryland came under attack nine years later, Marshall repeatedly and emphatically disclaimed any intimation that constitutional powers could be expanded by construction,24 assurances that were meaningless if the result could be achieved through the medium of natural law.

The Founders’ commitment to written limits on all power received powerful endorsement when a succession of judges, including Shaw, Story, and McLean, put the commands of the Fugitive Slave Act above the agonizing demands of conscience and the higher law. In a typical fugitive slave case, Miller v. McQuerry, Justice John McLean stated, “It is for the people . . . in making constitutions and in the enactment of laws, to consider the laws of nature . . . This is a field which judges cannot explore . . . They look to the law, and to the law only.” 25 Such were also the views of Justice Story and Chief Justice Lemuel Shaw.26

Against this background, judges in whom Chase’s yearning for extraconstitutional power survived understandably would be more comfortable with a constitutional catchphrase that “disguised individual opinions and gave them the sanction and prestige of a supreme fundamental law.” 27 They found it in Wynehamer v. The People (1856),28 the locus classicus of substantive due process. But first they too dismissed the doctrine of natural law. Justice Selden declared, “the doctrine that there exists in the judiciary some vague, loose and undefined power to annul a law, because in its judgment it is ‘contrary to natural equity and justice,’ is in conflict with the first principles of government and can never, I think, be maintained.” 29 His associates were equally plainspoken.30 This, however, did not exemplify a triumph of judicial self-restraint. While barring abolitionist reliance upon natural law, Corwin said, the Court fashioned substantive due process as a means of confining protection to vested property rights.31 But Justice A. S. Johnson cited much the same type of horrible example that had been adduced for resort to natural law, without explaining the leap from procedural due process in a criminal trial to invalidation of a statute, content to appeal to the ostensibly discarded natural law reasoning under a new label.32

Wynehamer, it needs to be underscored, was a sport; it “found no place in the constitutional law that was generally recognized” in 1856; nor did it thereafter find acceptance.33 When its argument was pressed on Chief Justice Ames of the Rhode Island Supreme Court in 1858, he held that the due process clause of the State constitution was not “designed to inhibit the legislature from regulating the vendibility of property” but was the “shield of one accused of crime,” 34 as almost all State constitutions made quite plain. Shortly thereafter, in 1866, the New York Court itself repudiated “the inconsiderate dicta of some of the judges” in Wynehamer.35 Nevertheless, Justice Miller, recurring to typical natural law examples in 1874, averred, “It must be conceded that there are such rights in every free government beyond the control of the State.” 36 Yet Miller himself had categorically rejected such concepts in 1869:

That substitution persists now that “due process has come to be the main provision through which natural law theories were made a part of current constitutional law.” 38 And it bears emphasis that until deep into the twentieth century the Court did not employ due process to succor the Negro for whose benefit the Fourteenth Amendment was framed, but rather as “a judicial weapon to strike down social legislation.” 39

The “convenient vagueness” 40 of due process is of the Court’s own making. After noting the “fixed” procedural character of due process, Charles P. Curtis, who rejoiced in judicial “adaptation” of the Constitution, asked: “But who made it a large generality? Not they [the Framers]. We [the Court] did.” 41 Justly did Justice Black state that “any broad unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the ‘conscience of our people’ . . . was not given by the Framers, but rather has been bestowed on the Court by the Court.” 42 It is the Court that made due process an obscurantist phrase.43

Among the remarkable aspects of this transformation is that Justice Frankfurter, the apostle of “self-restraint,” should so warmly have embraced its end-product:44 “once we go beyond its strictly procedural aspects . . . [it is] precisely defined by neither history nor in terms.” 45 How could it be when the Court drew substantive due process out of thin air? His revered predecessors, Justices Holmes and Brandeis, understood this full well.46 His frequent references to the “vagueness” of due process ill fits his deference to the common law meaning of words which have a “deposit of history.” 47 Whatever the scope of procedural due process, the “deposit of history” incontrovertibly shows that it did not comprehend a judicial veto of legislation on policy grounds. Frankfurter acknowledged that the “vagueness” of due process “readily lends itself to make of the Court a third chamber with drastic veto power.” 48 He wrote in 1926 that, “through its steady expansion of the meaningless meaning of the ‘due process’ clause of the Fourteenth Amendment, the Supreme Court is putting constitutional compulsion behind the private judgment of its members upon disputed and difficult questions of social policy.” 49 Now that he had donned the robe he apparently was satisfied that such power was safe in his hands—a familiar and very human reaction. But he disclaimed enforcement of his own “private view rather than the consensus of society’s opinion which, for purposes of due process, is the standard enjoined by the Constitution.” 50 “What is this consensus?” George Braden asked, and showed that it bristles with complexities in both definition and ascertainment.51 “Essentially,” Frankfurter explained, what is involved is a “judgment that reflects deep, even if inarticulate, feelings of our society. Judges must divine that feeling as best they can.” 52 Does not repudiation of the Court’s strictures against the death penalty by legislation in some thirty-odd States demonstrate that the Court is not in possession of a divining rod?53 The overwhelmingly negative public reaction to Frankfurter’s flag-salute opinion indicates that his own powers of divination were unreliable.54 It furnished proof for his statement that “As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements,” 55 and confirmed Learned Hand’s belief that the judge “has no right to divination of public opinion which runs counter to its last formal expression.” 56

Frankfurter’s “canons of decency and fairness which express the notions of justice of English-speaking people” 57 were scornfully dismissed—paradox of paradoxes—by Justices Black and Douglas, whose record of writing their predilections into the Constitution will long be unsurpassed.58 Justice Black labeled such tests the “catchwords and catchphrases invoked by judges who would strike down under the Fourteenth Amendment laws which offend their notions of natural justice.” 59 To him such tests represented a claim of “unlimited power to invalidate laws”;60 for Douglas, judgment would then turn on “the idiosyncracies of the judges.” 61 Lest this stamp me as a Black partisan in his running debate with Frankfurter, let me avouch Arthur Sutherland, a Frankfurter friend. He concludes that though Justice Frankfurter was “dissatisfied” with Black’s position on incorporation of the Bill of Rights in the Fourteenth Amendment, he “could find no substitute adequate to explain the revisory function of the Supreme Court,” that one of his formulas “left us as much at large as we were with mere ‘due process of law.’ ” Is “outraging the Supreme Court’s sense of justice,” Sutherland asked, “any more definite . . . ?” 62

Not that Justice Black’s insistence on his “impersonal” standard was free of self-delusion. To accomplish control over the States he jumped off from the untenable assumption that the Fourteenth Amendment incorporates the Bill of Rights; upon closer examination it appears that the “specifics” of the Bill of Rights also exhibit “subjective” open spaces.63 It would take us far afield once more to compare the Black and Frankfurter philosophies.64 Let it suffice, as George Braden concludes, that both “put into the Fourteenth Amendment what they want to”; [e]ach theory collapses, on analysis, into little more than a front for policy-making.” 65 “How can a strict constructionist, so-called, like Black,” Philip Kurland rightly asks, “have acquiesced in the reapportionment cases?” 66 Those decisions, in the words of Justice Stewart, “mark a long step backward into that unhappy era when a majority of the members of the Court were thought by many to have convinced themselves and each other that the demands of the Constitution were to be measured not by what it says, but by their own notions of wise political theory.” 67 Black it was who declared, “there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present day problems. ” 68 What were the “one man, one vote” decisions in which Black concurred but exactly such instances? For the Fourteenth Amendment, by virtue of its unmistakable history, as good as provides that control of suffrage was left to the States.69 And what happened, Miller and Howell justly ask, to Frankfurter’s “vaunted sense of self-restraint” in the desegregation case,70 which, to quote his condemnation of a reapportionment decision, was also “a massive repudiation of the experience of our whole past in asserting destructively novel power.” 71 That case also interfered with matters that had been a matter of State concern from the beginning, and which the framers of the Fourteenth Amendment plainly intended to leave with the States. Yet Frankfurter “was wary of judicial efforts to impose Justice on the people—to force upon them ‘better’ government than they were able at the moment to give themselves. It was his deepest conviction that no five men, or nine, are wise enough or good enough to wield such power over an entire nation.” 72 The lesson to be drawn from the cross-recriminations of the Justices is that the cry for self-restraint is directed to the other fellow, to decry identification of his predilections with constitutional mandates.73 Each Justice has a blind spot for the identification of his own predilections with constitutional dogma. A beautiful illustration is furnished by Justice Douglas in the contraceptive case Griswold v. Connecticut: “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems . . . or social conditions. This law, however, operated directly on an intimate relation of husband and wife.” 74 The inarticulate premise, as Alpheus Thomas Mason points out, is that “the Court does sit as a super-legislature in safeguarding the penumbral rights of privacy.” 75 To justify the differentiation Douglas relies on the cobwebby “penumbras formed by emanations,” 76 but in essence he exemplifies the readiness of the Justices to act as a “super-legislature” when their own emotions are engaged.

In the economic realm the Court itself has confessed error. In 1970 it recalled the “era when the Court thought the Fourteenth Amendment gave it power to strike down state laws ‘because they may be unwise, improvident, or out of harmony with a particular school of thought’ . . . That era has long ago passed into history.” 77 “We have returned,” it said on another occasion, “to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws,” 78 as had earlier been stated by Justice Holmes.79 These statements, however, are only accurate in part. At the same time it engaged in this overdue renunciation of usurped power in the economic sphere, the Court expanded the application of substantive due process to libertarian categories to which at length it assigned a “preferred position.” To the uninitiated it might seem that if the Fourteenth Amendment, in Justice Holmes’ famous phrase, “does not enact Herbert Spencer’s Social Statics,” 80 no more does it incorporate Kenneth Clark’s social psychology.81 In this Black and Frankfurter professedly were in accord. Justice Frankfurter stated: “The Constitution does not give us greater veto power when dealing with one phase of liberty than another . . . Our power does not vary according to the particular provision of the Bill of Rights which is invoked.” 82 Justice Black affirmed that “The Due Process Clause with an ‘arbitrary and capricious’ or ‘shocking to the conscience’ formula was liberally used by this Court to strike down economic legislation . . . That formula, based on subjective considerations of ‘natural justice,’ is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.” 83 The logic that bars the one equally bars the other.

History reveals that property actually was more highly prized by the Founders than “civil liberties.” “The great and chief end . . . of men,” Locke wrote, in “putting themselves under government, is the preservation of their property.” 84 For the Founders property “was the basic liberty, because until a man was secure in his property, until it was protected from arbitrary seizure, life and liberty could mean little.” 85 Hence they “warmly endorsed John Adams’ deep-seated conviction that ‘property is as sacred as the laws of God’ ”;86 and such views were expressed in the Convention by Madison: “The primary objects of civil society are in the security of property and the public safety.” 87 Neither the Fifth nor the Fourteenth Amendment drew a distinction between “liberty” and “property,” and, as Learned Hand remarked, the Framers would have regarded the current reading of the Fifth Amendment as “constituting severer restrictions as to Liberty than Property” as a “strange anomaly.” “There is no constitutional basis,” he averred, “for asserting a larger measure of judicial supervision over” liberty than property.88 There is no escape, to my mind, from Stanley Morrison’s summation that the difference merely represents “the subjective preferences or convictions of the individual judge.” 89

To this Fred Rodell replies that “regardless of syllogistic consistency about judicial review—this nation puts, or should put, a higher premium on individual dignities and freedoms than on material matters like the getting and keeping of money, and that the Court should honor that preference under the Constitution.” Patently what this nation “should put” merely reflects Rodell’s own preferences; whether the “nation puts” raises the question: at what point in time? Not from 1788 to the mid-twentieth century of a certainty. If it be the nation today, we have only Rodell’s conjecture, a very insecure footing for constitutional doctrine. Leonard Levy correctly points out that such views merely reject the Court’s earlier economic predilections because they were “illiberal,” not because the Court “made policy,” often arbitrarily. And he comments that this view “loses nothing of its monstrous character when the Court is praised simply for reaching the right or just result.” 90 Let us now briefly consider the means whereby the distinction was judicially fashioned.

From Economic Due Process to the “Preferred Position”

The “preferred position” assigned by the Court to “civil liberties” may be traced back to the brief vogue of “liberty of contract.” To preserve it, the Court struck down a statute in Lochner v. New York (1905)91 that limited working hours to 10 hours daily and 60 weekly as an interference with a bakery worker’s right to work longer hours. Casuistry seldom rose to greater heights. “There is grim irony,” Justice Stone later wrote, “in speaking of the freedom of contract of those who, because of their economic necessities, give their services for less than is needful to keep body and soul together.” 92 First adopted in Allgeyer v. Louisiana (1897),93 “liberty of contract” flourished so lustily that by 1923 Justice McReynolds could say in Meyer v. Nebraska, “without doubt, it denotes not merely freedom from bodily restraint.” 94 History disproves the claim. The learning was assembled in two landmark articles by Charles E. Shattuck (1891)95 and Charles Warren (1926).96 After collating the earlier history, Shattuck noted Blackstone’s summation, defining personal liberty as the “power of locomotion, of changing situation . . . without imprisonment or restraint of the person.” 97 When Warren reviewed the materials some twenty-five years later, he concluded, “there seems to be little question that, under the common law, ‘liberty’ meant simply ‘liberty of the person,’ or in other words, ‘the right to have one’s person free from physical restraint.’ ” 98 This was the established connotation of “liberty” when the Thirteen State constitutions adopted the “life, liberty, or property” phrase.

Before “liberty of contract” was abandoned, the Justices had timidly extended the concept of “liberty” to freedom of speech. As late as 1922 the Court had held that the Constitution “imposes upon the States no obligation to confer upon those within their jurisdiction . . . the right of free speech.” 99 Three years later, in Gitlow v. New York, the Court “assume[d] that freedom of speech and of the press are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 100 Justice Holmes furnished the clue in his dissenting opinion: free speech “must be taken to be included in the Fourteenth Amendment in view of the scope that has been given to the word ‘liberty.’ ” 101 But this was precarious footing; Justice Brandeis averred that free speech and press are protected “from invasion by the States” because they are “fundamental rights comprised within the term ‘liberty.’ ” In one of his finest perorations he attributed it to those “who won our independence,” who believed “that this should be a fundamental principle of the American government.” 102 Brandeis’ attribution to the Founders, as will appear, falls afoul of historical fact. On the eve of Gitlow, his foremost disciple, Professor Frankfurter, wrote: “Even the most rampant worshipper of judicial supremacy admits that wisdom and justice are not the tests of constitutionality . . . Particularly in legislation affecting freedom of thought and freedom of speech much that is illiberal would be clearly constitutional.” 103 In the post–Warren Court euphoria, when the test of constitutionality is assumed to be that the result is socially desirable, we are apt to overlook Chief Justice Marshall’s caution that “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” 104

Charles Warren tellingly argues that the “free speech” of the First Amendment could not have been comprehended in the due process of the Fifth Amendment because, “having already provided in the First Amendment an absolute prohibition on Congress to take away certain rights,” it is “hardly conceivable that the framers” would, in the Fifth, provide that “Congress might take away the same rights by due process of law.” 105

“The right of free speech,” Warren points out, “was not included as one of a person’s fundamental . . . rights in any Bill of Rights adopted by any of the States prior to the Federal Constitution.” 106 More important, when the First Amendment was proposed, Madison urged the First Congress that “it was equally necessary that [free speech] be secured against the State Governments,” but his plea was fruitless.107 Jefferson, the great champion of free speech and free press, wrote in 1804 to Abigail Adams: “While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right to do so.” 108 This was the premise on which the First Congress had acted. One may agree with Justice Cardozo that free speech is “the matrix, the indispensable condition, of nearly every other form of freedom,” 109 but the fact remains that the one time the American people had the opportunity to express themselves on whether free speech was “so rooted in the tradition and conscience of our people as to be ranked as fundamental” 110 was in the First Congress, which drafted the Bill of Rights in response to popular demand. There they voted down interference with State control. Justice Byron White brushed the 1789 history aside as of “little relevance in interpreting the Due Process Clause of the Fourteenth Amendment, adopted specifically to place limitations upon the States.” 111 That begs the question. Where is the evidence that in 1866 the framers meant to advance beyond the limited goals of the Civil Rights Act? Where is the evidence that they meant to enlarge the meaning due process had for the Founders in 1789? Instead, the record establishes that the framers had limited objectives; that they carefully avoided encroaching on the States beyond those limits; that they chose technical words apt for their purpose, which, in the case of due process, meant to them access to the courts according to due course of law, not a roving commission to revise State institutions.112 On the heels of the Fourteenth Amendment Thomas Cooley concluded that “Obstacles stood in the way of an unconditional commitment to human freedom. Innovations, he believed, required historical basis, and American history was singularly lacking in precedents for national power used in behalf of individual freedom.” 113

Charles Warren had prophesied in 1926 that by enlarging the Fourteenth Amendment to protect free speech, the Court had opened the door to adoption of the rest of the Bill of Rights.114 Faced with mounting pressure to do so, Justice Cardozo, in Palko v. Connecticut (1937), fashioned a confining doctrine— “ordered liberty”: some “immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States.” 115 Such portions of the Bill of Rights as had been “absorbed” in the Amendment rested on “the belief that neither liberty nor justice would exist if they were sacrificed.” “Absorption” proceeded from those “principle[s] of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” 116 As in the case of the Chinese “mandate from heaven,” we learn a right is “fundamental” only after the Court attaches that label.117 Cardozo, it needs to be borne in mind, took due process as it was handed to him and therefore could say, “Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form.” 118 “Ordered liberty,” as Louis Lusky states, “is too vague to describe a national objective. It says that order and liberty are both to be sought, but provides no standard for reconciling the eternal conflict between them.” “It is a vehicle,” he justly comments, “for whatever meaning the Court gives it, and thus enables the Court to apply its own conceptions of public policy.” 119 Several Justices concur in this view. In a book written by Justice Owen Roberts after his retirement, he stated, in a passage quoted by Justice Douglas, that the cases will fall “on the one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept.” 120 Justice Byron White likewise regards the concept as no more than a means whereby a majority of the Court can impose “its own philosophical predilections upon State legislatures or Congress.” 121 And Justice Black maintained that the concept merely embodied “ ‘natural law due process’ notion[s] by which this Court frees itself from the limits of a written Constitution.” 122 Like that of Brandeis, Cardozo’s reliance on the “traditions and conscience of our people” is rebutted by the refusal of the First Congress to proscribe State interference with free speech and free press. That, to borrow from Learned Hand, was the “last formal expression” of the will of the people. No departure from that will can be found in the history of the Fourteenth Amendment; instead, but for the narrow enclave of the Civil Rights Act, the framers plainly withheld from the Court power to intrude into State regulation of domestic affairs.

About four months after Palko, Lusky tells us, Justice Stone, in a footnote to United States v. Carolene Products Co.,123 “undertook to articulate a more satisfactory justification.” 124 At that time Lusky was Justice Stone’s law clerk, and he submitted a draft of what eventuated as the second and third paragraphs of the footnote.125 “It is unnecessary to consider,” reads paragraph two, “whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting scrutiny . . . than are most other types of legislation.” “Nor need we enquire,” paragraph three states, whether statutes that impinge upon religious or racial minorities that were objects of prejudice which might hamper relief through political processes should also be subjected to “more searching judicial scrutiny.” 126 Thus, by a disclaimer of the need to decide, in a case that had “curiously not involved liberties in any way,” 127 the Court, as it has so often done, launched a major constitutional doctrine. Notwithstanding that it was tucked away in a footnote, it “disturbed” Chief Justice Hughes; consequently, the present first paragraph was added, stating that “there may be a narrower scope” for operation of the presumption of constitutionality when legislation “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments . . when held to be embraced within the Fourteenth.” 128 Paragraph one was designed to qualify the second and third paragraphs in order to still Hughes’ doubts, as the exchanges between him and Stone make plain.

Lusky explains that paragraphs two and three “make no reference to the words or intentions of the Constitutors. They speak, rather of the dynamics of government,” that is, they assume that “government by the people, and government for the whole people” are “fairly ascribable to the Constitutors,” and that the Court has a “special ability to effectuate them” by acting in the two described situations.129 And it is the Court itself which is to decide for which purposes it has “special aptitude.” 130 Once more the “genius of government” is to override the sovereignty in domestic matters that the Framers reserved to the States; once more their rejection of judicial participation in policymaking131 and the reservation in 1866 of suffrage and other local matters to the States is ignored. Although the Hughes first paragraph seems narrower, Lusky considers that by it “the Court is left entirely at large. There is virtually no limit to its ability to attribute new meaning to the ‘specific prohibitions,’ once it is liberated from the need to interpret them as the Constitutors expected.” This has “come to be known as the ‘preferred position’ theory, which affirms that certain rights are . . . so important that the Court should protect them . . . and that the Court’s power to select them is limited only by its ability to manipulate words contained in the Constitution. It . . . assumes that any meaning the Court chooses to ascribe to the sacred text will be accepted as authentic revelation.” 132 These strictures, it seems to me, are no less applicable to a theory divorced from “the words or intentions of the Constitutors” and founded on “the dynamics of government.”

Lusky’s pronounced preference for the Stone-Lusky second and third paragraphs of the Carolene footnote derives from the belief that it fits in with his newly fashioned theory of the Court’s “implied power” to revise the Constitution, his answer to the anguished question, “ By what right does it revise the Constitution?” 133 His search for a new theory to undergird judicial revision testifies that the footnote is without constitutional roots, that as George Braden says, “it is simply a part of one man’s set of values for his society which he holds strongly enough to be willing to enforce when the opportunity arises.” 134

Stone himself, according to Lusky, “seems to have underestimated” the importance of the distinction Lusky draws,135 illustrating anew the tendency to read into an utterance meaning never contemplated by the author. And before long he was disenchanted with the course pursued by the Court. Long before the Warren Court worked its revolution,136 Chief Justice Stone wrote (1945): “My more conservative brethren in the old days [read their preferences] into the Constitution . . . [H]istory is repeating itself. The Court is now in as much danger of becoming a legislative and Constitution making body, enacting into law its own predilections, as it was then.” 137 His forebodings were overfulfilled; “the Warren Court,” Archibald Cox stated, “behaved even more like a Council of Wise Men and less like a Court than the laissez faire Justices.” 138 Once again Stone exemplifies that the measure of tolerance is effectuation of one’s own predilections; when they are exceeded at the hands of other Justices, they are anathematized.

This drastically telescoped survey of divers judicial rationalizations of expanded judicial revision for the benefit of libertarian ideals underlines the wisdom of Judge Learned Hand’s conclusion that judges

Because Frankfurter overlooked the fact that “due process” was not a provision “without a fixed technical meaning” —minimally it excluded control over legislation, both in 1789 and 1866—he could allude to “the evolution of social policy by way of judicial application of Delphic provisions of the Constitution.” 140 And struggling to arrive at an adequate rationalization of the “desegregation” decision, Frankfurter, we are told, stated in the Conference of the Justices: “It was too bad history had conspired to make the Court the trustee of that incorrigible changeling, the due process clause, and therefore impose upon the Justices a policy-making function unlike that borne by any other court in any other nation.” 141 The burden, however, was self-assumed—not unlike the “white man’s burden” once employed to justify imperialism. On the most charitable view, Justice Frankfurter had induced a state of self-hypnosis by his frequent incantations to the “convenient vagueness” of due process. Justice Harlan was content, in a case that outraged his sympathies, to state that the historical arguments, among others the limitation of due process to “procedural fairness,” “have not been accepted by this Court as delineating its scope.” 142 Yet he later insisted, with respect to suffrage, that the Court was bound by the framers’ intention to exclude it from the scope of the Fourteenth Amendment.

With vision unclouded by claims to power, there is no reason why students of the judicial process should be caught in such toils. It is their duty to discern and proclaim that it is the judges, not the Constitution, that speak, as Frankfurter himself advised President Franklin Roosevelt on the eve of the Court-packing plan,143 just as in a simpler age the words which fell from the lips of the Delphic Oracle were spoken into a speaking tube by priests secreted below.

Those who consider that judgment is inescapably subjective will chortle that thus far I have merely proved the obvious. But even in their magisterial survey of such inescapability, Arthur S. Miller and Ronald F. Howell state: “It is, of course, only those constitutional provisions of inherent ambiguity that pose problems of interpretation. Where the intention is clear . . . no interpretation is necessary. ” 144 Even less is 180-degree revision “necessary”; the “ambiguity” of substantive due process was not “inherent” but judicially contrived. Miller and Howell, however, suggest a constrictive criterion, instancing “clear” provisions for the number of Senators, for a President and a Vice-President, and dismissing as a “filo-pietistic notion” something “called the intention of the framers.” 145 Nevertheless, they do not suggest that “the judge is wholly free” to sit “kadi-like under a tree dispensing ‘justice’ by whim or caprice,” calling attention to one limitation on such freedom— “adherence to precedent.” 146 Why should “adherence to precedent” rise above effectuation of the framers’ clearly expressed intention, which expresses the value choices of the sovereign people, not merely of judicial predecessors? The Justices themselves are by no means in accord with the now widely shared Miller-Howell view that it is the function of the Court to “update the Constitution.” 147 The powerful and repeated dissents across the judicial spectrum, condemning or disclaiming subjective judgment, evidence ongoing soul-searching by members of the Court whether the broad policymaking role academe strenuously defends148 comports with constitutional limits and the demands of a democratic society.

But this in turn compels us to face the naked question wrung from the lips of Graham. Confronted with the framers’ imperfect “understanding of equal protection as applied to educational matters,” their acceptance of “segregation in schools,” he stated:

Graham’s inarticulate premise was that change could not be accomplished by amendment as the Constitution provides—desegregation could not win assent of two-thirds of the Congress and three-fourths of the States. Accordingly, it fell to the Court to strike the shackles of the past. Whence does the Court derive the power to free the American people from the “chains of the Constitution,” from the “tyranny of the dead,” that is, the Founders? Such questions will be considered in subsequent chapters.

15

“The Rule of Law”

For a generation the constitutional basis for the “revolutionary” changes wrought by the Warren Court has gone virtually unchallenged.1 Justice Black, to be sure, unremittingly attacked decisions which to his mind rested on supraconstitutional authority, but his views could be heavily discounted because he himself was guilty of wholesale importation and participated in some of the Court’s most debatable constitutional revisions. In a perceptive essay, Thomas C. Grey noticed a turning of the tide, the joinder of distinguished commentators in Black’s criticisms; although he dissents, he called for a clear statement and adequate defense of the position.2 With Grey, I consider the question whether the Court may “enforce principles of liberty and justice” when they are “not to be found within the four corners” of the Constitution as “perhaps the most fundamental question we can ask about our fundamental law,” excluding only “the question of the legitimacy of judicial review itself.” 3 The issue may for present purposes be stated more concretely: given that the Fourteenth Amendment plainly left suffrage and segregation to the States, may the Court “interpret” it in exact contradiction of the framers’ design—to take control away from the States? Where is the constitutional authority for a power so awesome?

It is important to make clear at this point what Part II of this study is not about. It does not deal with the interpretation of amorphous constitutional provisions such as “commerce,” 4 which, unlike “due process,” have no historical content; nor with the weight to be accorded “enigmatic” history. As Part I demonstrated, the framers of the Fourteenth Amendment made their intention abundantly plain: to exclude suffrage and segregation from the ambit of its terms. For me those terms, “equal protection” and “due process,” illuminated by clear history, are neither “vague” nor “ambiguous.” Nor will I deal with whether or not judicial review is antidemocritarian,5 for if judicial review of the Warrenite scope was authorized by the Constitution, its antidemocratic nature has constitutional sanction. Nor will the craftsmanship of the Court, about which rivers of ink have been spilled, come into question.6 If judicial intervention with respect to suffrage, for example, is without constitutional warrant, it cannot be excused by the most elegant craftsmanship. Nor will consideration be given to the extensive debate about “neutral principles,” because I concur with John Ely that if a “neutral principle” “lacks connection with any value the Constitution marks as special,” that is, if it is not rooted in the Constitution, “it is not a constitutional principle and the Court has no business imposing it.” What is of paramount importance, as Ely stresses, is that the Court “is under obligation to trace its premises to the charter from which it derives its authority.” 7 Finally, the “subjectivity” involved in making value choices8 plays no role in my view of the meaning of the Fourteenth Amendment, for it was not given to the courts to prefer federal judicial control of suffrage to the State control the Amendment deliberately left untouched. The Justices’ value choices may not displace those of the Framers,9 or, as Chief Justice Marshall stated, the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers” 10 —let alone to those which unmistakably were excluded.

Intoxicated by the Warren Court’s libertarian breakthrough, academicians have dismissed such restrictions. Fred Rodell exulted that Chief Justice Warren “brush[ed] off pedantic impedimenta to the results he felt were right,” that he was not a “look-it-up-in-the-library” intellectual, and that he was “almost unique” in his “off-hand dismissal of legal and historical research from both sides and in [his] pragmatic dependence on the present day results of separate schools.” 11 On this view the Constitution itself is a superfluous, even obstructive, “scrap of paper.” Leonard Levy labeled this approach as “anti-intellectual,” 12 but Rodell merely expressed in pungent terms what is more decorously phrased by his fellow “instrumentalists.” 13 The underlying reality, as another Warren enthusiast, Edmond Cahn, stated, was that “as a practical matter it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal,’ only the Court possessed effective power to relieve American education of this incubus,” thereby assuming that it had constitutional warrant.14

Inquiry into the source of power to set aside Article V of the Constitution, “which prescribes the Amendment process,” 15 and to impose a solution on the people that confessedly could not have obtained their assent is hardly a sheerly antiquarian exercise.16 Given a Constitution designed to “limit” the exercise of all delegated power,17 it is a response to the admonition contained in the Massachusetts Constitution of 1780, drafted by John Adams and paralleled in a number of early State constitutions, that “A frequent recurrence to the fundamental principles of the constitution . . . [is] absolutely necessary to preserve the advantages of liberty and to maintain a free government . . . The people . . . have a right to require of their law givers and magistrates an exact and constant observance of them.” 18 Such provisions evidence what Willard Hurst considers to be “a very basic principle of our constitutionalism . . . a distrust of official power,” 19 as Jefferson’s insistence on binding officials “with the chains of the Constitution” attests.20

Constitutionalism and the Rule of Law

When Howard Jay Graham acknowledged that the framers excluded segregation from the compass of “equal protection,” but concluded that we dare not be bound by their “imperfect understanding,” 21 he premised that the Court, as it had done in Brown v. Board of Education (1954), should strike the “chains of the Constitution.” The demands of justice, in short, must rise above the law, or, as libertarians put it, humanitarian goals must override what they regard as arid legalism. To dismiss adherence to “the rule of law,” observance of the limitations imposed by a written Constitution, is to strike at the very root of our democratic system.22 History confirms Justice Black’s statement that the struggle for a written constitution was “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power,” “according to the ‘law of the land,’ ” not by the “law of judges.” 23 The Framers, as will appear, had no stomach for the dispensation of “justice” by a kadi under a tree. Justice, to be sure, is the aim of a democratic state, but there can be no justice without a government of laws, least of all when power is uncurbed. It is for this reason, I suggest, that judges are not required by Article VI, §3, to take an oath to do justice but rather “to support this Constitution.” Our system is committed to “Equal Justice Under Law,” not to “Justices Above the Law.” 24 They were not authorized to revise the Constitution in the interests of “justice.”

Mechanical repetition over the years—like a child’s unthinking daily pledge of allegiance—has dulled the significance of the rule of law; it has been called a “useful fiction.” 25 For the Framers, however, it was the essence of constitutional government. “The government of the United States,” said Chief Justice Marshall in one of his earliest decisions, “has been emphatically termed a government of laws and not of men.” 26 That the judiciary, too, was meant to stay within bounds was spelled out in the 1780 Massachusetts Constitution, which ordained that the legislature should never exercise judicial power, and never should the judiciary exercise legislative power, so that this may be a “government of laws and not of men.” 27 Even more plainly, judges were not left free to exercise the supreme “legislative power” of the people, to revise the Constitution in accordance with their own predilections. As the Massachusetts House wrote to the Earl of Shelburne in 1768, “There are, my Lord, fundamental rules of the Constitution . . . which neither the supreme Legislative nor the supreme executive can alter. In all free states, the constitution is fixed; it is from thence, that the legislative derives its authority; therefore it cannot change the constitution without destroying its own foundation.” 28 This was addressed to an “omnipotent” Parliament and the Crown under an unwritten Constitution; it was an article of faith among the colonists and Founders.29 In substituting a written Constitution and expressly providing for change by amendment, they evidenced that they had created a “fixed” Constitution, subject to change by that process alone.30 That “fixity” was meant to serve as a bulwark for cherished liberties, not a mere parchment. “Our peculiar security,” Jefferson declared, “is the possession of a written Constitution. Let us not make it a blank paper by construction.” 31 The written Constitution was thus the highest expression of the “rule of law,” designed to limit the exercise of power and to make the agents of the people accountable. Once limits are prescribed, Chief Justice Marshall stated, they may not “be passed at pleasure.” It was because constitutions were bulwarks against oppression that, in his words, “written constitutions have been regarded with so much reverence.” 32

The Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, “not [to] construct new rights.” 33 When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches, as the historical evidence makes plain. First, it was clearly excluded from participation in the making of policy, the function of the legislature.34 No agent, said Hamilton, “can new-model his commission,” 35 and the most benign purpose does not authorize the judiciary to remodel its powers. Indeed, we need to be rid of “the illusion that personal power can be benevolently exercised.” 36 The Founders knew, in Jacob Burckhardt’s phrase, that “Power is of its nature evil, whoever wields it.” 37 They knew, as Madison stated, that all “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” 38 “Judicial power,” Justice Frankfurter remarked, “is not immune against this human weakness”;39 and the Court’s progressive intrusion over the years into the domain of policymaking, from which it was plainly excluded, points the moral. Second, as Chief Justice Warren recognized, “We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution.” 40 Substituted judicial made-to-order “standards” are not really the “standards” of the Constitution,41 as the State “reapportionment” cases plainly evidence. The significance of the judicial oath is illuminated by that of the President, who does not swear to defend the nation, but to “preserve and defend the Constitution,” 42 on the inarticulate premise that the life of the nation hangs on the preservation of the Constitution. Third, conclusive evidence that the judiciary was designed only to police constitutional boundaries, not to exercise supraconstitutional policymaking functions, was furnished by Hamilton. In Federalist No. 78 he stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments” —a note repeatedly sounded in the subsequent Ratification Conventions.43 The word “encroachments” posits prior legislative action; it excludes judicial policymaking initiatives on ground of legislative inaction. This is confirmed by Hamilton’s statement that the judiciary “can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” 44 Chief Justice Marshall rephrased this in unmistakable terms: the Court was only to give “effect to the will of the legislature.” 45 Hamilton rejected the argument that the courts were empowered “to construe the laws according to the spirit of the Constitution”;46 “penumbras formed by emanations” 47 were not for him. What he meant is made quite clear by his rejection of the notion “that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature,” 48 a statement, Louis Lusky notes, that “is hard to square with anticipation of judicial constitution-making power.” 49 Finally, well aware that there existed considerable distrust of the proposal for judicial review, Hamilton sought to allay it in Federalist No. 81 by calling attention to the

These were no idle words, for both the English and the Founders regarded “usurpation” or subversion of the Constitution as the most heinous of impeachable offenses.51

Today there is a tendency to reduce the Constitution to the status of a “symbol” of continuity and unity,52 but for the Founders it was a living reality. They swore the President to “preserve and defend the Constitution” because it represented a “bulwark” of their liberties, not a mere symbol. They indited a charter which delegates power to the “servants and agents of the people,” 53 with “limits,” “checks and balances” to guard against its abuse. It bears witness to the creation of a government by consent of the sovereign people; “just government,” stated the Declaration of Independence, “is founded on the consent of the governed.” The terms of that consent are spelled out in the Constitution. “The people,” averred James Iredell, one of the ablest of the Founders, “have chosen to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.” 54 Substitution by the Court of its own value choices for those embodied in the Constitution violates the basic principle of government by consent of the governed. We must therefore reject, I submit, Charles Evans Hughes’ dictum that “the Constitution is what the Supreme Court says it is.” 55 No power to revise the Constitution under the guise of “interpretation” was conferred on the Court; it does so only because the people have not grasped the reality—an unsafe foundation for power in a government by consent.

Too much discussion of constitutional law is centered on the Court’s decisions, with not enough regard for the text and history of the Constitution itself. We need to recall Justice Gibson’s great statement in 1825:

Like Chief Justice Burger and Justices Douglas and Frankfurter, I assert the right to look at the Constitution itself stripped of judicial incrustations,57 as the index of constitutional law and to affirm that the Supreme Court has no authority to substitute an “unwritten Constitution” for the written Constitution the Founders gave us and the people ratified.

Constitutionalism—limited government under the rule of law—was a paramount aim, not to be warped in order to achieve some predilection of any given bench. Solicitor General, later Justice, Robert H. Jackson, perceived, as Chief Justice Warren did not, that “the rule of law is in unsafe hands when courts cease to function as courts and become organs for control of policy.” 58 Even a celebrant of the Warren era, Thurman Arnold, stated that without a continuing pursuit of “the ideal of the rule of law we would not have a civilized government.” But although he labeled it as of “tremendous importance,” he viewed it as “unattainable.” 59 That is a romantic view which can be invoked to shirk the attainable. Effectuation of the Fourteenth Amendment’s decision to leave suffrage to the States, for example, was not “unattainable”; attainment was balked only by the Court’s drive to restructure the Constitution. For the Founders “the rule of law” was no “unattainable” ideal, but a basic imperative. And so it must remain. As Charles McIlwain wrote, “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.” 60

If this be arid legalism, it was shared by Washington, who stated in his Farewell Address:

It is because Americans continue to regard the Constitution as the bulwark of their liberties that they hold it in reverence. “ [E]very breach of the fundamental laws, though dictated by necessity,” said Hamilton, “impairs the sacred reverence which ought to be maintained in the breasts of the rulers towards the constitution.” 62

16

The Judiciary Was Excluded From Policymaking

The Council of Revision

It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymaking—rejection of their participation in a Council of Revision of legislation—went unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright.1 Not the least remarkable aspect of judicial neglect of this history is that it should finally be invoked by Justices Black (1965)2 and Douglas (1968),3 oblivious to the shattering effect that it has on their own sweeping policymaking decisions.

Edmund Randolph proposed in the Convention that the President, “and a convenient number of the National Judiciary, ought to compose a council of revision” to examine every act of Congress and by its dissent to constitute a veto.4 When his fellow Virginian George Mason argued for judicial participation in the presidential veto, he recognized that judges already

A similar differentiation was drawn by James Wilson:

Despite the fact that the proposal had the support of Madison, and, therefore, of perhaps the most influential trio in the Convention, it was rejected for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking. Nathaniel Gorham saw no “advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” 7 Elbridge Gerry, one of the most vigorous advocates of judicial review, opposed judicial participation in the Council:

Charles Pinckney also “opposed the interference of the Judges in the Legislative business.” 9 Rufus King joined in the opposition on the ground that as “the judges must interpret the Laws they ought not to be legislators.” 10 Roger Sherman “disapproved of Judges meddling in politics and parties.” 11 It is reasonable to infer that John Dickinson expressed a widely shared view in cautioning that “The Justiciary of Aragon . . . became by degrees the law-givers.” 12 Plainly the Framers refused to make the judiciary “law-givers,” even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusive legislative function.13 They drew a line between the judicial reviewing function, that is, policing grants of power to insure that there were no encroachments beyond the grants, and legislative policymaking within those bounds. “Dangerous” and “destructive” as such policies might be, they were yet to be the exclusive province of the legislature. That is the inescapable inference from the facts, and, as will appear, it is fortified by still other historical facts.

Justice Douglas therefore stood on solid ground in stating that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” 14 In a remarkable example of compartmentalized thinking he went on to say, “we no longer exercise that kind of power,” just as he had earlier stated in Griswold v. Connecticut that the Court no longer acts as a “super legislature” —except in a case touching the “right of privacy.” 15

The history of the Council of Revision also serves to refute the view that judicial review is an expression of “distrust in popular government,” 16 or, in Corwin’s oft-quoted phrase, having bet on democracy, the Framers then “covered their bet.” 17 The “cover,” however, went no further than to prevent the legislature from “overleaping its bounds.” In fact the judiciary was excluded from halting “dangerous . . . destructive” legislation that was within those bounds. If the Framers “covered their bet,” they gave the last trump to Congress: judges who usurped power, for example, exercised a power withheld, said Hamilton, could be impeached. The Founders unequivocally rejected the judiciary as “guardians of the people”; they preferred, in Gerry’s words, to put their trust in “the Representatives of the people.” For judicial review was an innovation by no means universally admired; it was a departure from Blackstone’s “omnipotent parliament.” 18 Having “smarted” under the “omnipotent power of the British parliament,” said James Iredell, we should “have been guilty of . . . the grossest folly” had we “established a despotic power among ourselves.” 19 If this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.

The judicial role, it cannot be unduly emphasized, was limited to policing constitutional boundaries. James Wilson said it is necessary that Congress be “kept within prescribed bounds, by the interposition of the judicial department.” 20 The courts, said Oliver Ellsworth, were a “check” if Congress should “overleap their limits,” “make a law which the Constitution does not authorize.” 21 Judges, John Marshall stated in the Virginia Convention, could declare void “a law not warranted by any of the powers enumerated.” 22 Hamilton stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” 23 But “within those limits,” Madison said, there were “discretionary powers.” 24 The exercise of that discretion, as we have seen, is for the branch to whom it has been confided. No one, so far as my search of the several convention records uncovered, looked to the Court for “leadership” in resolving problems that Congress, the President, or the States failed to solve. That view is a product of post-Warren euphoria. The courts were expected to “negative” or set aside unauthorized action, to “check” legislative excesses, to “restrain” Congress within its prescribed “limits,” to prevent the “usurpation” of power. The Court, in other words, was to act as nay-sayer, not as initiator of policy. Justice Stephen Field, supreme activist of his time, stated upon his retirement in 1897 that “This negative power, the power of resistance, is the only safety of a popular government.” 25

When, therefore, James Bradley Thayer and Learned Hand insisted that the role of the Court was to police the boundaries of constitutional grants, not to interfere with the exercise of legislative or executive discretion within those boundaries,26 they rested firmly on the authority of Hamilton and the preponderant view of the Founders. For 150 years the Court was content with this policing function;27 even the headstrong laissez-faire Court merely acted as a nay-sayer. It fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be.28 But the failure of Congress to exercise legislative power does not vest it in the Court.

Judicial “Discretion” in 1787

A common historicist fallacy is to import our twentieth-century conceptions into the minds of the Founders. At the adoption of the Constitution the notion that judges, for example, could make law as an instrument of social change was altogether alien to colonial thinking. “Instrumentalism” was yet to come. In a valuable essay Morton J. Horwitz observed that “fear of judicial discretion had long been part of colonial political rhetoric” and described the prevalent jural conceptions that combined to circumscribe the judicial function in the eighteenth century.29 There was first the fact that the common law rules—that is, judicially enunciated rules in the field of contracts and the like— “were conceived of as ‘ founded in principles, that are permanent, uniform and universal.’ ” Consequently, judges “conceived their role as merely that of discovering and applying preexisting legal rules” and derived “the rule of strict precedent” from such “preexisting standards discoverable by judges.” It followed that “judicial innovation itself was regarded as an impermissible exercise of will.” 30 Horwitz cites the statement of Chief Justice Hutchinson of Massachusetts in 1767: “the Judge should never be the Legislator: Because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” 31 Not long afterward Edward Gibbon wrote, “the discretion of the judge is the first engine of tyranny.” 32 Horwitz concluded that “In eighteenth century America, common law rules were not regarded as instruments of social change; whatever legal change took place generally was brought about through legislation . . . American judges . . . almost never self-consciously employed the common law as a creative instrument for directing men’s energies towards social change.” 33 Those who would rest an implied power of judges to act as such instruments of social change in the field of constitutional law have the burden of producing evidence that the Framers intended to depart from these norms. The exclusion of judges from the Council of Revision alone points to the contrary.

“Instrumentalism,” Horwitz shows, largely began to develop in the early nineteenth century—after the adoption of the Constitution; the examples he cites are all drawn from application of common law; not once is a judicial claim of power to alter a statute, let alone a constitution, asserted. To such negative implications may be added Hamilton’s statement in the very context of judicial review (Federalist No. 78), that the judicial role is one of “judgment” not “will,” that “to avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 34 What could be further from the current freewheeling conception of judicial review than these words by the foremost apologist for judicial review, designed to reassure opponents of ratification? Courts were not merely to be “bound down” by the “chains of the Constitution,” but by “strict rules and precedents” as well. Even when the tide began to turn toward instrumentalism, Judge William Cranch of the Circuit Court for the District of Columbia stated in his preface to 1 Cranch of the Supreme Court’s decisions (1803): “In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.” 35

There are also contemporary judicial statements that display the circumspection with which the judges approached the novel task of judicial review. In one of the earliest State cases, Commonwealth v. Caton (1782), Edmund Pendleton, president of the highest Virginia court, stated: “how far this court . . . can go in declaring an act of the Legislature void, because it is repugnant to the Constitution, without exercising the Power of Legislation, from which they are restrained by the same Constitution? is a deep, important, and I will add, an awful question” 36 —which, he rejoiced, he had no occasion to decide. Subsequently, Pendleton served as the presiding officer of the Virginia Ratification Convention, and it is unlikely that he translated the examples furnished by his colleagues, all addressed to checking encroachments on reserved powers, into unlimited power of review. No one remotely intimated that there would be judicial power to rewrite the Constitution.37 Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts;38 and such State jealousy was met by the Judiciary Act of 1789 which withheld from the inferior federal courts jurisdiction of cases “arising under” the Constitution.

Even with respect to the policing function, Justice James Iredell, who had been one of the most cogent advocates of judicial review, stated in 1798 that the power to declare a legislative act “void is of a delicate and awful nature, [hence] the Court will never resort to that authority but in a clear and urgent case.” 39 In M’Culloch v. Maryland Chief Justice Marshall indicated that something like a “bold and plain usurpation to which the constitution gave no countenance” was required “to invoke the judicial power of annulment.” 40 And in 1824 he averred that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” 41 For Chief Judge Cardozo, Marshall’s statement was the expression “of an ideal,” which “Marshall’s own career” illustrates “is beyond the reach of human faculties to attain.” 42 It would be more accurate to say, as Charles L. Black pointed out, that it reflected the colonists’ conception that “ Law is a body of existing and determinate rules,” which “ is to be ascertained ” by the judge by consulting “statutes, precedents and the rest,” and that “the function of the judge was thus placed in sharpest antithesis to that of the legislator,” who alone was concerned “with what the law ought to be.” 43 So Marshall understood the judicial role: “Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law ” 44 —that is, by the legislators or the people gathered in Convention.

Marshall, it needs always to be remembered, had fought on behalf of judicial review in the Virginia Ratification Convention and was well aware of the views entertained by the Founders. His 1824 statement confirms that among the presuppositions the Founders brought to the several conventions was a bias against judicial discretion and policymaking. There is no evidence whatsoever that these presuppositions were thrown overboard in the creation of the judiciary. To the contrary, the established presumption is that the Founders created a judiciary in familiar terms, except insofar as they envisaged its “policing” function. Judicial alteration of the fundamental law ran counter to their belief in a “fixed Constitution”; it was altogether outside their contemplation, as Hamilton made plain.45 Justice Frankfurter, therefore, was close to the mark in stating that the Framers were on guard “against the self-will of the courts.” 46

Supplementary Note on Exclusion of the Judiciary

17

The Turnabout of the Libertarians

Why did the libertarians, after decades of berating the Court for reading its laissez-faire predilections into the Constitution and imposing its own economic policy on the nation,1 turn around and defend it for pursuing the same course with respect to libertarian values? One may view the turnabout merely as another illustration of “whose ox is gored”;2 but perhaps the explanation lies deeper. Arthur Sutherland explained that between 1920 and 1940 academe “viewed the federal judiciary with dismay” and was “deeply imbued with faith in majorities.” A “change of political theory developed” between 1938 and 1948, deriving from “Hitler’s popularity among the German people, public support of the Un-American Activities Committee and McCarthy Hearings” and so on, for “votaries of unreviewed majoritarianism” suddenly realized that “unrestricted majorities could be as tyrannical as wicked oligarchs . . . We could not say in plain terms that occasionally we have to select wise and able people and give them the constitutional function of countering the democratic process.” 3 Looking back in 1976 and writing with equally praiseworthy candor, Archibald Cox, who had played a major role as Solicitor General in persuading the Supreme Court to adopt some of the epochal decisions of the 1960s,4 stated:

Mark that these “impulses” were “not shared so strongly and widely as to realize themselves through legislation,” that they “were felt more strongly in the world of the highly educated,” and were realized through the “fate which puts one man upon the Court rather than another.” Because for the nonce the majority of the Court shared the predilections of the “highly educated,” the latter looked kindly upon the Court’s imposition of its will upon the people.6 But, as Myres McDougal wrote some years ago, “Government by a self-designated elite—like that of benevolent despotism or Plato’s philosopher kings—may be a good form of government for some, but it is not the American way.” 7 No intellectual but can from time to time be disappointed by the vox populi, whether it be by the choices it makes—Richard Nixon, for example—or its imperviousness to the cultural values intellectuals cherish. In some it leads to a sense of alienation from the commonality; but, as Winston Churchill observed, the alternatives to democracy are even worse. With Lincoln, I cling to faith in the ultimate good sense of the people;8 I cannot subscribe to the theory that America needs a savior, whether in the shape of a President or of nine—oftimes only five—Platonic Guardians.

It does not dispose of the uncomfortable historical facts to be told that “the dead hand of the past need not and should not be binding,” that the Founders “should not rule us from their graves.” 9 To thrust aside the dead hand of the Framers is to thrust aside the Constitution. The argument that new meanings may be given to words employed by the Framers10 aborts their design; it reduces the Constitution to an empty shell into which each shifting judicial majority pours its own preferences. It is no answer to argue, as did Charles Curtis, “we cannot have our government run as if it were stuck in the end of the eighteenth century when we are in the middle of the twentieth,” 11 because, as Willard Hurst replied, “the real issue is who is to make the policy choices in the twentieth century: judges or the combination of legislature and electorate that makes constitutional amendments.” 12 Since, for example, it would have been impossible to secure a desegregation amendment,13 the libertarians premise that submission of such an issue to the people by amendment is at all costs to be avoided. McDougal and Lans genteelly explained that because “the process of amendment is politically difficult, other modes of change have emerged.” 14 In less opaque terms, the cumbersomeness of the process authorizes the servants of the people informally to amend the Constitution without consulting them! That, however, collides head-on with Hamilton’s assurance in the midst of his defense of judicial review in Federalist No. 78:

Neither Frankfurter’s finely tuned antennae for ascertaining the inarticulate sentiments of the people, nor “even knowledge of their sentiments, can warrant” a “departure from” the Constitution by the Justices. Change, thus laid down the leading expositor of judicial review, must come via amendment. The reason was put in a nutshell by Bruce Claggett. The Constitution requires that:

It is not as if the difficulties of amendment were unperceived by the Founders. Patrick Henry argued in the Virginia Ratification Convention that “four of the smallest states, that do not collectively contain one tenth part of the population . . . may obstruct the most salutary . . . amendments.” 17 But James Iredell expressed the prevailing view: the Constitution “can be altered with as much regularity, and as little confusion, as any Act of Assembly; not, indeed, quite so easily, which would be extremely impolitic . . . so that alterations can without difficulty be made, agreeable to the general sense of the people.” 18 In Massachusetts, Charles Jarvis said, “we shall have in this article an adequate provision for all purposes of political reformation.” 19 In the First Congress, Elbridge Gerry, one of the important Framers and erstwhile President of the Continental Congress, stated: “The people have” directed a “particular mode of making amendments, which we are not at liberty to depart from . . . Such a power [to alter] would render the most important clause of the Constitution nugatory.” 20 In other words, Article V constitutes the exclusive medium of change, under the long-standing maxim that to name a particular mode is to exclude all others.21 And, as Gerry stated, “an attempt to amend” the Constitution in “any other way” but by Article V “may be a high crime and misdemeanor,” that is, an impeachable offense for subversion of the Constitution.22 Because arguments to the contrary are couched obliquely—for example, “each generation of citizens must in a very real sense interpret the words of the Framers to create its own Constitution” 23 —one is apt to overlook that these are arguments for “change” outside Article V, by the judicial “interpreters” rather than the people. Libertarians, in short, would read the exclusivity of Article V out of the Constitution and cede to the Court a power that is to be exercised only by the people, and then only in accordance with its terms. The “shackles” from which libertarians would free us had the sanction of the people expressed through their State conventions, whereas judicial revision represents only the will of judges who would circumvent submission of a change to the people.

The Court itself, however, has not been overeager to acknowledge the crown academe would press upon its brow; it has never in terms asserted a right to strike the shackles of the past. Though it has often repudiated the design of the Framers, it has done so by indirection, by resort to “lawyer’s history,” 24 to far-fetched theorizing in search of an anchor in the Constitution. Robert Bork justly comments that “The Supreme Court regularly insists that its results . . . do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution . . . Value choices are attributed to the Founding Fathers, not to the Court.” 25 Let Chief Justice Warren himself furnish an example: “The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital living principles that authorize and limit governmental power in our Nation. They are the rules of government.” 26 As Bork observes, “The way an institution advertises tells you what it thinks its customers demand.” 27 Were the issue put squarely to the American people whether they would elect to have the Court strike the “shackles” of the past or to live under the constraints of the Constitution, I doubt not that they would resoundingly prefer the “idiosyncratic purposes of the Framers” 28 to those of the Justices.29

Some have sought a rationale in common law affirmations. Alexander Bickel referred to Holmes’ statement that it is “revolting” to adhere to a rule of law, the grounds of which “have vanished long since.” 30 Holmes wrote in the frame of the common law, where the courts have long been entrusted with the task of shaping the law of contracts and the like. If the results were at times displeasing to Parliament, they could be overruled in easy fashion by an act of Parliament. Decisions of constitutional question cannot, however, be overruled by the legislature; resort must be had to the “cumbersome” amendment process—it took eighteen years to overrule the income tax decision!31 Then, too, if the common law is to serve as a model, it needs to be remembered that at the adoption of the Constitution judicial discretion was feared and confined by strict adherence to precedent as a curb on the “impermissible exercise of will,” 32 a course far removed from the present Court’s habit of leaving “precedents in a shambles.” 33 Nevertheless, a free and easy judicial approach to constitutional “adaptation” derived in no small part from the freedom American courts assumed in the early nineteenth century to reshape the common law for the benefit of an emerging entreprenurial system. Witting or unwitting, it was a carryover from a practice so plainly described by Chancellor Kent in extolling his own role in the shaping of American equity jurisdiction: “I might once & a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case.” 33a This remarkable confession that law was to be manipulated to achieve a desired result— “my views of the case” —might perhaps be extenuated in an area where courts had been left to make the initial choices. But no such authority was conferred in the policing of constitutional boundaries. For, as Judge J. Skelly Wright observed (in an article devoted to castigating the “self-appointed scholastic mandarans” who criticized the Warren Court): “Constitutional choices are in fact different from ordinary decisions . . . the most important value choices have already been made by the framers of the Constitution.” Judicial “value choices,” he continued, “are to be made only within the parameters” of those choices.34 If, as Judge Wright declared, even “imprecise” constitutional guarantees “provide a direction, a goal,” and “rule out many alternative directions, goals,” 35 all the more does the exclusion of suffrage from the Fourteenth Amendment, for example, leave no room for judicial choices such as “one man, one vote.”

“Instrumentalism” describes the approach derived from early-nineteenth-century common law practice, a view, Hans Linde points out, later expressed in the “realist canon” that new decisions are to “be measured by instrumental success in effecting a socially desirable outcome.” 36 But at the adoption of the Constitution judges were considered to be without discretion to alter the law. And “desired” by whom? Oft-times the “sense of the community” has turned on the opinion of a swing man, for example, Justice Owen Roberts, whose change of position in 1937 on minimum wages was perhaps not entirely coincidental.37 When the Court splits 5 to 4 it evidences a deep cleavage as to the “desired” result. Frequently an “outcome” that is stubbornly resisted by a dominant majority of the Court is quickly adopted upon the retirement of one or more Justices when their replacements transform the dissenting minority into a new majority. On the heels of a decision that declared the greenback law unconstitutional, President Grant “carefully chose men who he had reason to believe would uphold the Legal Tender Acts.” His hopes were gratified by a 5-to-4 reversal.38 Such swings of the pendulum are a commonplace of Supreme Court history: constitutional law is given a “new look” when a Warren succeeds a Vinson, a Goldberg succeeds a Frankfurter. The changes can be fateful. Vinson “held fast to the position that the judiciary should not be an aggressive instrument for invalidating school segregation.” 39 He was succeeded in the midst of the desegregation case by Warren,40 and Rodell tells us he learned from law clerks that “in conference at least three Justices came close to dissenting until their new Chief put on all the pressure he could wield.” 41 A similar “major turning point” marked the succession of Frankfurter by Goldberg.42 Citations can be multiplied. Should what is “socially desirable” for a nation of 200 million people turn on such accidents?43 Should grave national policy be the sport of circumstance? Justices themselves have inveighed against the creation of novel constitutional doctrine on so fortuitous a base.44 These shifts in opinion underscore Justice Jackson’s aphorism: “we are not final because we are infallible, but we are infallible only because we are final.” 45 Just as “perception of community standards varies” from Justice to Justice, so no agreement on such matters is to be found in academe, for law professors also are not agreed upon what results are “good.” 46 Were there such agreement, the judgment of cloistered scholars is no substitute for the will of the people.

Even when the Court is unanimous, it is not peculiarly fitted to be a thermometer of community feeling, as the Framers emphasized during their discussion of judicial participation in the Council of Revision. The Sixteenth Amendment attests that the Court did not represent the sense of the community when it declared the income tax unconstitutional.47 Its recent decision that the age-old death penalty for murder constitutes “cruel and unusual punishment” quite plainly is opposed to popular sentiment.48 So, too, the procedural safeguards required of States for criminals run counter to public opinion.49 Some consider that the Court’s rulings on obscenity do not reflect popular opinion;50 and in the result the nation is deluged by a flood of blatant pornography and filth that the people are powerless to deal with.51 Even desegregation, an undeniably noble goal, did not have52 and does not have the consent of the nation. The Report of the National Advisory Commission on Civil Disorders found “pervasive racism” across the country,53 as is evidenced by continued resistance in the North to busing. An admirer of Brown v. Board of Education, Anthony Lewis, ruefully wrote in May 1974 that the issues of race and poverty are “much more complicated, more intractable than we imagined.” 54 Soberly appraising the situation in the Fall of 1975 Derrick Bell, a black scholar, stated that “Today, opposition to desegregation is, if anything, greater than it was in 1954.” He referred to “nationwide opposition to meaningful implementation of school desegregation,” saying, “it should now be clear that Brown can [not] integrate our schools.” The “real sickness is that our society in all its manifestations is geared to the manifestations of white superiority.” 55 Bell’s careful bill of particulars raises large doubts whether the disease is curable by judicial fiat. This is not to deny that the side-effects of Brown in other areas of desegregation have been beneficial in the extreme. Here our focus is on the absence of a national consensus, the fact that the desegregation decree did not and still does not represent the “sense of the community,” but is rather a prime example of how the Justices imposed their will upon the people. Justice Black, who was ready enough to impose his own will, rightly declared that there is no “gadget which the Court can use to determine what traditions are rooted in the conscience of the people.” 56

If the argument of necessity can be made for desegregation because segregation is a reproach to our society, what need was there for the Court’s decision that the centuries-old requirement of trial by a jury of 12 was not binding on the present? No social urgency called for judicial tampering with what had been a central concern of the Founders.57 What urgent necessity dictated overthrow of the death penalty to which more than half of the States are attached? Such decisions confirm Hamilton’s prescient caution in Federalist No. 25: “every breach of the fundamental laws, though dictated by necessity, . . . forms a precedent for other breaches where the same plea of necessity does not exist at all.” 58

For a realistic and unusually candid disclosure of the uses of instrumentalism we are indebted to a member of the Nixon administration, Donald E. Santarelli, an Associate Deputy Attorney General, who described himself in April 1973 as in charge of “an idea shop,” which “work[s] on concepts” and “plans” for the President. He considered that the “separation of powers is obsolete,” that the

To my knowledge, the Nixon administration did not repudiate this interview, and it was tacitly confirmed by Richard Nixon himself. As said by Leonard Levy, “Nixon’s search for conservative strict constructionists has been more than a candid attempt to alter the trend of decisions, it is an acknowledgment that at the very apex of our government of laws and not of men, the men who interpret the laws, rather than the laws themselves, are the decisive factors.60 It is difficult to deny that “a result-oriented adjudication . . . is a corruption of the judicial process, that leaves too far behind the rule of law enforced by impersonal and objective judges.” 61

Instrumentalism, in short, substitutes the will of the Justices for that of the people. That requires more than jurisprudential justification, more than a response to the needs of a changing world; it calls for the informed “consent of the governed.” Although Justice Harlan, in measuring the impact of the Fourteenth Amendment on voting, stated that “the amending process is not the only way in which constitutional understanding alters with time . . . as conditions change the Constitution changes as well,” he went on to say:

In terms of this discussion, the limited goals of the Fourteenth Amendment were explained to the people; they gave their consent in conformity with Article V, and if their decision needs to be changed, let it be, as President Washington counseled, by action in the same constitutional manner: let the people decide.

Instead of searching for the “sense of community,” some would have the Court serve as a “national conscience,” as “an educational body . . . teachers in a vital national seminar.” 63 That notion, Wallace Mendelson stated, “sounds strange in the mouths of its liberal sponsors. By their standards, most of the Court’s teaching in this area has been erroneous” 64 —let alone that the Court has not been content merely to teach but has imposed its teachings on the nation. There is no need to dwell on the fact that judges of high stature—Black, Frankfurter, Learned Hand, and Robert Patterson—have rejected the roles of preacher, teacher, crusader;65 instead, let us examine how this “conscience” has served the nation. Careful scholars confirm Robert H. Jackson’s stricture: “time has proved that [the Court’s] judgment was wrong on most of the outstanding issues upon which it has chosen to challenge the popular branches.” 66 Consider first the Japanese relocation case, which stands as a dreadful precedent for racial concentration camps; the Court failed 70,000 Japanese at the very moment they stood most in need of protection against West Coast hysteria.67 From the very outset the Court gutted the minimal protection afforded the Negro by the Fourteenth Amendment. By a series of decisions, Leonard Levy said, “the Court crippled and voided most of the comprehensive program for protecting the civil rights of Negroes after the Civil War. These decisions paralyzed or supplanted legislative and community action and played a crucial role in destroying public opinion that favored meeting the challenge of the Negro problem.” 68 The record, said Henry Steele Commager, with respect to the pre-1937 Court,

So wretched a performance, I suggest, inspires little confidence in the Court as the “national conscience.” In their rapture over the Warren Court’s adoption of their predilections, the libertarians tend to overlook that “A single generation’s experience with judicial review . . . does not wipe out the experience of a century and a half.” 70 Already there are anguished outcries that the Burger Court is acting “against the law.” 71 But the name of the game is “Two Can Play”;72 once the legitimacy of judicial policymaking is recognized, new appointees may properly carry out the policies which they were appointed to effectuate.73

What the “national conscience” is at any given moment depends on shifting personnel and the nature of the appointees. The replacement of one or two Justices may result in a complete reversal of the prevailing conscience, as when Chief Justice Warren succeeded Chief Justice Vinson. How can we put our trust in a conscience that changes color with every judicial succession, itself subject to shifting political winds?

The conscience of the nation is a tender thing, and one may well shrink from entrusting it to some of the incumbents who have served over the years. Shall we prefer the Four Horsemen to Brandeis and Stone as keepers of the conscience? Learned Hand believed that judges “must be expected to express the points of view of the class to which they belong rather than that of the whole community.” 74 Justice Field’s close ties with the railroad barons of the West Coast furnishes one example,75 Chief Justice Taft another. Although Taft confessed to feeling “less acute and more confused” as he grew older, he felt duty-bound “to stay on the Court in order to prevent the Bolsheviki from getting control.” 76 Presumably Brandeis was one of the “Bolsheviki”;77 and Taft opposed the appointments of Cardozo and Learned Hand because they might “herd” with Brandeis.78 Justice Brewer’s overheated warnings against the “black flag of anarchism . . . and the red flag of socialism” 79 long furnished the rallying cry of the embattled Court, which felt duty-bound to save “society from itself.” 80

Now it was the turn of the libertarians to look to the Court as the savior of democracy. Edmond Cahn considered that it was incumbent upon a judge to shoulder his moral responsibility rather than to defer to community standards, preferring the “wisdom” of such a judge as Learned Hand.81 But Learned Hand in his wisdom wanted Platonic Guardians no more than did Elbridge Gerry 173 years earlier.82 It is disheartening to go over the roster of “wise and able men” to whom Arthur Sutherland would confide “the constitutional function of countering the democratic process.” Rodell justly refers to Truman’s “inept cronies”;83 the revulsion not long since against some proposed Nixon appointments, including an ineffable trio who shall here be nameless,84 illustrates that the nation’s salvation is dependent upon the “luck of the draw.” Anthony Lewis observed that “the run of Supreme Court appointments in our history has not been particularly distinguished.” 85 Levy more bluntly stated that they have run from “mediocre to competent” 86 —with a few distinguished exceptions such as Holmes and Brandeis, who often were relegated to dissent.87 Learned Hand, one of the wisest and most profound jurists, disclaimed any knowledge of how to choose Platonic Guardians.88 A succession of presidents have demonstrated that they know still less.

One who studies the course of events since the advent of the Warren era is struck by how short is the memory of man. One hundred years of judicial misrule have been wiped out by a fifteen-year interlude during which libertarian aspirations at length were gratified. Now the intellectuals eagerly embraced the Court as a “law-giver,” forgetful of Tocqueville’s comment on the then prevailing respect for the judiciary that imprudent appointments might bring forth evil fruit.89 Do we need Hitler or Indira Gandhi to remind us that the lesson of history is: put not your trust in saviors? The enduring strength of our institutions is not a little due to our veneration of the Constitution as the bulwark of our liberties. We need to take to heart a statement made by Jefferson when he was President and had been urged to take a dubiously broad view of his own powers:

For him those definitions were to be read in light of the explanations made to those who ratified the Constitution.91

18

Liberals and the Burger Court

Lamentations over the “regressive” course of the Burger Court in the field of civil liberties fill the air. The New York Times, for example, stated: “There was a time not so far distant when the United States Supreme Court was the staunch and ultimate defender of civil rights and liberties . . . [T]he Court seems clearly to be beating a path of retreat from its once proud forward position in this delicate and difficult area of the relationship between citizen and state.” 1 Undoubtedly the Court is tilting the scales from what many regarded as excessive tenderness toward criminals;2 it is haltingly attempting to return some criminal administration to the States.3 But, as Leonard Levy points out, “That the Nixon Court favored law-enforcement values” should come as “no surprise. Burger, Blackmun, Powell and Rehnquist got their seats on the bench because of their supposed or known lack of sympathy for the rights of the criminally accused.” 4 This, however, is only the latest of what G. E. White felicitously described as a “series of minor court-packing plans.” 5 Now that a new set of predilections is displacing their own, libertarians who rejoiced in the “creative” role of the “wise and able men” are despondent. But the “revolutionary” changes in the criminal process6 by the Warren Court had not won the assent of the people.7 And it cannot be gainsaid that the Burger Court rulings in this area are closer to the original design than were those of the Warren Court. For, as we have seen, the Bill of Rights was not made applicable to the States, either by its framers or in the 39th Congress.

Not that the Burger Court is abjuring lawmaking; its “six-man jury” decision furnished evidence to the contrary.8 It has not held that the Court has no business regulating State death penalties because the “cruel and unusual punishment” phrase of the Bill of Rights has no application to the States, or because, as Chief Justices Warren and Burger and Justice Black stated, it did not encompass a death penalty for murder.9 Instead, in Gregg v. Georgia and companion cases it has weighed whether a death penalty is or is not a “cruel and unusual punishment” on an apothecary’s scale.10 It would be inopportune to show in detail that the “strict constructionist” Burger Court clings as firmly to judicial governance as its predecessor.11 Archibald Cox observed that “the new Justices seem not to shrink from using constitutional law as an instrument of reform when an existing rule offends their preferences.” 12

It is more to the purpose to examine how the Burger Court has thrown “liberal” analysis into disarray, as Leonard Levy’s recent book Against the Law: The Nixon Court illustrates. Levy’s earlier studies give evidence of incisive analysis and a richly stocked mind; but Against the Law leaves one with a baffling sense of ambivalence, of seeming unawareness that his views are often incongruent. In what follows I am not to be taken as a partisan of the Burger Court, but rather as seeking to test Levy’s theories by his criticism of that Court. By way of background let us begin with his sympathetic introduction to a group of articles on the Warren Court. The phrases of the Constitution are “Delphic”; the Court

Levy continues in this strain in his commentary on the Burger Court: “From the beginning . . . the Court . . . read the Constitution to mean whatever it wanted. Despite pretenses to the contrary, the Court could do no other, for . . . American constitutional law exists in the collective eye of those who happen at any moment in time to dominate the Court.” 14 If this be so, how can the decisions of the “Nixon Court” be “Against the Law”? And “why,” to borrow Levy’s adoption of Justice Black’s rhetorical question, “have a written Constitution at all if its interpreters are left only to the admonitions of their own consciences?” 15 Is this reconcilable with Levy’s view that the Court “is and must be for all practical purposes a ‘continuous constitutional convention’ in the sense that it must keep updating the original charter . . . it simply cannot decide cases on the basis of what the Constitution says”?16

Given that constitutional law is “inevitably . . . result-oriented,” one can understand Levy’s view that any decision other than Brown v. Board of Education “would have been unthinkable, unbearable, unspeakable” 17 (though not to Chief Justice Vinson and Justices Reed and Jackson),18 that “strict constructionism means reversing the decision of Appomatox . . . a return to . . . Jim Crow.” 19 That is not a return that I should recommend, but is this not the very “reasoning backwards” so vigorously condemned by Levy: “In constitutional cases . . . the judge who first chooses what the outcome should be and then reasons backwards to apply a rationalization replete with rules and precedents has betrayed his calling; he has decided on the basis of prejudice and prejudgment, and has made constitutional law little more than the embodiment of his policy preferences, reflecting his subjective predilections.” 20 That, however, is “inevitable” once it is postulated that “our constitutional law is subjective in character and to a great degree result-oriented.” 21 Nevertheless Levy states that “result-oriented constitutional adjudication . . . is a corruption of the judicial process that leaves too far behind the rule of law enforced by impersonal or objective judges.” 22 He himself avers, however, “We may not want judges who start with the answer rather than the problem . . . but as long as mere mortals sit on the Court and must construe that majestic but muddy Constitution, we will rarely get any other kind.” 23 Yet he emphasizes in Against the Law that “result-oriented jurisprudence . . . [is a] judicial monstrosity that gains nothing when the Court reaches a just result merely because of its identification with underdog litigants.” 24

Now unless I am sadly at sea, it seems to me that Levy is riding off in opposite directions. He cannot at one and the same time maintain that the words of the Constitution “are empty vessels into which [a judge] can pour nearly anything he will” and then insist that the “ purpose of the Sixth Amendment was to bind the federal government to the system of trial by jury that was traditional and familiar. ” 25 On that analysis the words “trial by jury” are not “empty vessels” but have a fixed content. So, too, he has been unable to decide whether a result-oriented jurisprudence is “inevitable” or a “monstrosity.” It may be one or the other, but it cannot be both.26 The core of Levy’s complaint, unless I grossly misconceive his concluding remarks, seems to be against the Burger Court’s craftsmanship, its failure “to weigh criticism,” “to develop carefully reasoned judgments,” “to make bad law in the sense of being badly crafted.” 27 But, as he recognizes, “experts will doubtless disagree” about “the Nixon Court’s craftsmanship” as “they have about the Warren Court’s craftsmanship.” 28 Whether it be good or bad, however, is of no moment in a jurisprudence that is “inevitably . . . result-oriented.” The result, not the reasoning, is what counts.29

Some of Levy’s severest strictures are reserved for the Burger Court’s treatment of precedents: one new reading “left its precedents in shambles”; the Court “obliterates them.” 30 Yet, he considers that “precedents do not decide cases.” 31 And in disregard of precedents the Burger Court yields the palm to its predecessor. “The list of opinions destroyed by the Warren Court,” Philip Kurland observed, “reads like a table of contents from an old constitutional law casebook.” 32 It is difficult to agree that Chief Justice Burger “displayed an egregious contempt for precedents” when he rejected the “thesis that what the Court said lately controls over the Constitution.” 33 He may be indulged in returning to older precedents that the Warren Court had only recently discarded,34 particularly since, as Justice Henry Baldwin early observed, “There is no more certainty that a last opinion is more correct than the first.” 35 Let Levy sum up:

Such are the fruits of a value-oriented system which makes of “constitutional [case] law” a veritable whirligig. No rhetoric can disguise that this is but the kadi administering justice under a tree.

Where Levy entertained misgivings about judicial review but swallowed them,37 Charles Black was an uncurbed partisan of the Warren Court, a panegyrist of Justice Black who sought to justify the policymaking ways of the Court to man.38 Now Black has come forth with a semi-recantation, taking on himself some of the blame for encouraging a result-focused jurisprudence.39 The “fresh raw wound” caused by the Burger Court’s death penalty cases of July 2, 1976, set him to “wondering whether we liberals . . . may not be in part to blame for a . . . quite evident trend toward the point of view that reason doesn’t matter much, and can be brushed aside, if only the result is thought desirable.” 40 One should not be captious with a repentant sinner, but Black’s semi-recantation contains the seeds of further error; and, as one who wrote in 1942 that the test of constitutionality cannot be the embodiment of predilections which I share,41 I may be forgiven for seeking to lay those errors bare.

There is first Black’s repeated appeal to “reason.” 42 The recent death-penalty cases moved him to ask “whether we do well to entrust this Court with the job of a rational defense of ordered liberty—and even whether we did well to refrain from talking too loud about it when the same [Burger] Court without adequate reason given, decided the abortion case as it did.” 43 Like Professor Black, I too am a devotee of reason and well recall the richly deserved criticisms of the Warren Court, couched in terms of deplorable “craftsmanship” 44 —without a peep from Black.45 He himself recognizes that “painstaking reason often leads to different results in different minds” and that “no important result is dictated wholly by reason; there must lie at its heart a normative judgment not reachable by reason alone.” 46 In other words, “reason” starts from premises that another may reject. Chief Justice Warren proceeded in Reynolds v. Sims (reapportionment) from the Declaration of Independence and the Gettysburg Address, notwithstanding that the framers of the Fourteenth Amendment found that the Declaration had not deprived the States of control over suffrage, and that Lincoln saw no prospect of Negro “equality.” And he totally ignored the incontestable evidence that Justice Harlan spread before the Court that the framers excluded suffrage from the scope of the Amendment. Even now Black does not ask whether the Justices may displace the framers’ value-choices with their own “normative judgments.”

The frailty of “reason” is further illustrated by Black himself; he regards Brown v. Board of Education “as nearly syllogistic as a real law case can be. The Fourteenth Amendment, in the clear light of its history . . . forbade all discrimination against black people.” 47 He may be indulged for his inability to abandon a view to which he was committed as a member of the NAACP legal counsel in that case; he “threw all his passionate brilliance into the NAACP effort.” 48 But, to the astonishment of Kelly, Graham, and others, the “clear” neoabolitionist history they pressed on the court was branded by Chief Justice Warren—anxious though he was to rule in favor of desegregation—as “inconclusive.” How can we rely on “reason” that converts the very limited and “clear” purposes of the framers into a ban on “all” discrimination?

Black recalls that he “expressed some doubt about the application of the equal protection clause to legislative apportionment, in Baker v. Carr, but, looking back, I know that I muted that doubt.” Came Oregon v. Mitchell, and Professor Black perceived “that the plurality opinion of four was plainly wrong, and the deciding concurrence of Mr. Justice Black so egregiously wrong as to be . . . all but incredible.” 49 In justice to Justice Black, it deserves to be repeated that he recanted (though without so stating) with respect to apportionment for State offices, saying that he “agreed” with Justice Harlan’s demonstration that control over suffrage was deliberately left by the framers with the States.50 Of this Professor Black says not a word. One of the remarkable aspects of his address in fact is that not once does he advert to the historical limitations on judicial policymaking with respect to the Bill of Rights, segregation, and reapportionment set forth by Fairman, Bickel, and Harlan; he puts his trust in “reason.” Because reason can lead in different directions, however, the all-but-incontestable proof that suffrage was left by the framers to the States, offers a safer, surer mooring.

But to resume Professor Black’s threnody; looking back to the Warren Court’s extension of the school desegregation case “to other forms of segregation, involving neither schools nor children” in cases “decided per curiam and without opinion,” Black now wishes that he “had fullthroatedly joined Herbert Wechsler in his protest against this procedure, which was so self-evidently wrong that one is ashamed to have glossed it over just because the result was what one wanted and thought right.” 51 This was more than a departure from a lawyer’s “commitment . . . to reason”;52 it represents a departure from standards that led the people to place their trust in scholars. Like scientists, constitutional scholars, as Thomas Huxley said upwards of a century ago, should “respect nothing but evidence, and . . . believe that their highest duty lies in submitting to it, however it may jar against their inclinations.” 53 That duty carries with it, I submit, publication, not suppression, of scholarly findings.

Oregon v. Mitchell induced some soul-searching in Black: “What if all this is turned on us? If real reason goes out of fashion, can we be sure it will not happen? . . . Have we not, after all, asked for it?” 54 It is not unfair to conclude, I trust, that Black’s jeremiad illustrates once more the “whose ox is gored” adage. He held his peace when “the result was what one wanted and thought right,” but now protests against a departure from “reason” when he is “heartbroken that the legal killing of people is to be resumed.” 55 Not a word about the manifest preference of the people to the contrary, about the formidable evidence that the Fourteenth Amendment did not make the Bill of Rights applicable to the States, that the death penalty was not deemed a “cruel and unusual punishment” by the Framers—a view to which the Supreme Court adhered until 1972.56 Instead Black apparently remains faithful to a judicial power to revise the Constitution—if only it be clothed in “reason.”

19

The Legitimacy of Judicial Review

The most fundamental question of all, as Thomas Grey rightly stated, is “the legitimacy of judicial review itself,” 1 a question that goes beyond the scope of the power to its very existence, however limited. After remarking, “Whether this enormous power can fairly be deduced from the language of the Constitution, and whether the framers of that instrument intended to confer it on the Justices, has been the subject of vast learned controversy . . . unlikely ever to be resolved,” Joseph Bishop reassuringly stated, “No matter; the power exists.” 2 It is true that the power has long been exercised, but whether it “exists” —has constitutional warrant—is something else again. Edmond Cahn, however, opined that “it is too late to reopen the question of whether the Court ought to determine constitutional issues.” 3 On the contrary, it is never too late to challenge the usurpation of power; one gains no title by prescription against the government,4 still less against the sovereign people. Power reserved to the people by the Tenth Amendment cannot be taken over by “squatter sovereignty.” “It will not be denied,” Chief Justice Marshall stated, “that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this.” 5 In Erie Ry. Co. v. Tompkins the Court, per Justice Brandeis, branded its own course of conduct stretching over one hundred years as “unconstitutional,” 6 in a situation not nearly as important as the “enormous power” to impose the judicial will upon the nation. Usurpation—the exercise of power not granted—is not legitimated by repetition.7 The people, as John Adams inscribed in the Massachusetts Constitution of 1780, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution,8 above all, to exercise no powers not granted. We may not, therefore, shut our eyes to the issue of legitimacy.

In the course of a penetrating summary of the issues posed by judicial review, Leonard Levy states: “The charges of usurpation most certainly cannot be proved; it is without merit. The difficulty is that the legitimacy of judicial review in terms of the original intent cannot be proved either.” 9 This attempt at even-handed analysis overlooks the fact that under a Constitution which delegates and limits power, the burden is on a claimant to point to the source of his power—failing which, it is a usurpation.9a After dwelling on the materials which led him to conclude that the framers left a “very incomplete and extraordinarily ambiguous record,” 10 Levy comments on Charles Black’s argument that judicial review has been “legitimized by popular acquiescence, and therefore popular approval, over the course of American history.” In Black’s own words, “the people have, precisely through the political process, given the stamp of approval in the only way they could give approval to an institution in being—by leaving it alone.” To this Levy retorts: “The simple fact is that at no time in our history have the American people passed judgment, pro or con, on the merits of judicial review over Congress. Consent freely given, by referendum, by legislation, or by amendment is simply not the same as failure to abolish or impair.” 11 If in fact no provision for judicial review was made by the Constitution, Black’s argument would substitute for the constitutional machinery for change by amendment revision by tacit acquiescence. Neglect or inaction would excuse noncompliance with the amendment provision; usurpation would be legitimized by inertia. But, as Hamilton stated in Federalist No. 78, the Constitution is “binding” — “until the people have, by some solemn and authoritative act, annulled or changed the established form.” 12 The Black argument, which takes little or no account of historical roadblocks, is, as Willard Hurst said in an analogous context, “a way of practically reading Article V out of the Constitution.” 13

To read popular acquiescence in judicial vetoes as ratification of a judicial power to change the Constitution offends against still another requirement: complete disclosure. The people could rely on Hamilton’s rejection in Federalist No. 78 of the possibility that “the courts on the pretense of repugnancy, may substitute their own pleasure to the constitutional intention of the legislature,” on his representation that the judges had no warrant to depart from the Constitution. As Lusky put it, the people expect the Justices to view the Constitution as expressing “the will of those who made” it and “to ascertain their will.” 14 Until the Court candidly discloses—as Justice Jackson vainly urged—that it is “making new law for a new day,” the people can hardly be held to acquiesce in what they have not been told. They have been told that the Court speaks with the voice of the Constitution;15 they are constantly told that “the Constitution (not the Justices) requires.” And that cannot be converted into ratification of progressive judicial violation of its limits.

On Levy’s view that judicial review has no sure constitutional basis16 and that it has not been “approved” by the American people, it is, like Mahomet’s coffin, suspended in midair. Thus, the awesome power of judicial review is left altogether without footing. My own studies, set forth in Congress v. The Supreme Court (1969), convinced me that judicial review was contemplated and provided for by the Framers, albeit limited to policing constitutional boundaries and divorced from participation in policymaking. The fundamental importance of legitimacy impels me to comment briefly on Levy’s objections to the evidence avouched for it.

Levy begins by asking, if the Framers “intended the Court to have the power, why did they not provide for it?” 17 In my view they did. Article III, §2, extends the judicial power to cases “arising under this Constitution”; one who claims that a constitutional right was invaded presents such a case. Article VI, §2, provides that “This Constitution and the Laws . . . which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Federal judges and all federal and State officials were no less “bound” than State judges by the “supreme Law.” 18 If a judge is “bound” only by a law “in pursuance” of the Constitution, that is, consistent therewith, by necessary implication he is not bound by an inconsistent law.19 Obviously a judge would be required to make a preliminary decision whether or not he was “bound” by the law, exercising the judicial power to decide lodged in a federal judge by Article III.20 As said by Herbert Wechsler, federal judges “enforce the Constitution” because “they must decide a litigated issue that is otherwise within their [Article III] jurisdiction and in doing so must give effect to the supreme law of the land.” 21 In other words, a judicial issue is presented by the question whether a statute is the “supreme Law of the Land” and the Article III “judicial power” embraces such questions. Read together, Articles III and VI therefore confer the power of judicial review. Those who find it difficult to draw these deductions should bear in mind that the Framers so understood the two provisions, the evidence for which I have supplied in 86 heavily documented pages.22

Next Levy turns to “Corwin’s vacillations” which allegedly testify “to the confusing and inconclusive nature of the evidence.” 23 Undeniably Corwin swung like a pendulum, but the important question is not what he thought but what are the facts. Now the facts, set forth by Charles Beard, criticized by Corwin in 1913, but richly confirmed by Corwin in 1914,24 are in the words of his 1914 summary:

Only two men, Gunning Bedford and John Mercer, who carried little weight, expressed a contrary view.26 As Corwin stated, “on no other feature of the Constitution with reference to which there has been any considerable debate is the view of the Convention itself better attested.” 27 To these seventeen are added a number of prominent Founders, such as Oliver Ellsworth of Connecticut and John Marshall of Virginia, who spoke in the Ratification Conventions. After painstakingly sifting all the evidence I concluded that Beard and the 1914 Corwin evaluation were fully supported.28

A few comments seriatim on the selected items Levy would discredit will suffice. When the Convention discussed the “arising under” clause, Madison “expressed doubt about ‘going too far’ and advocated that jurisdiction over such cases be ‘limited to cases of a Judiciary Nature.’ ” 29 This merely sought to obviate a roving commission to declare legislation unconstitutional and to confine that function to properly litigated cases. Levy himself explains that the Court “cannot strike down an act at will, however unconstitutional, it must wait passively for a zealous litigant to raise a real case or controversy over which it has jurisdiction.” 30 The Convention did not see need to act on Madison’s suggestion because of the general belief that “the jurisdiction given was constructively limited to cases of a Judiciary Nature” 31 —to “cases or controversies.” Levy also stresses Madison’s inconsistent positions.32 Undoubtedly Madison was inconsistent over the years. Who is not? But if we look to what he said in the Federal and State Conventions—the proper frame, as Corwin noted, because those utterances were meant to influence fellow delegates—there is actually little or no inconsistency. On July 23, 1787, Madison declared that “A Law violating a constitution established by the people themselves, would be considered by the judges as null and void,” 33 a view often expressed by other Founders, including Marshall in the Virginia Convention.34 On August 27 Madison stated: “The right of expounding the Constitution in cases not of this [Judiciary] nature ought not to be given to that Department.” 35 By plain implication, if the right was of a Judiciary Nature, “the right of expounding” was given, and “expounding” had been employed by the Members to include decisions on constitutionality, which embraced “laws of the United States [congressional acts] . . . in pursuance” of the Constitution.36

Then Levy turns to Hamilton: “it is not irrelevant” that Hamilton’s own plan made no provision “for any sort of judicial review.” 37 I suggest that it is utterly irrelevant. Hamilton did not propose to submit a complete scheme of government, but merely “to suggest the amendments which he should probably propose to the plan of Mr. R[andolph] in the proper stages of its future discussion.” The Randolph plan provided for a judiciary as a “check” on the legislature.38 Levy also depreciates Hamilton’s exposition of judicial review in Federalist No. 78 because it adopted Robert Yates’ demonstration (in opposition to adoption of the Constitution) that it provided for judicial review.39 Adoption of an opponent’s argument generally is a tacit tribute to its force. Levy explains that

If they did not mean what they were saying (as to which there is no evidence whatever),41 they were guilty of false representations to “allay” fears on which votes depended. Those who voted for adoption of the Constitution were entitled to rely on such representations; consequently, the Constitution is to be construed, in Jefferson’s words, in accordance with the “meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanation of those who advocated it.” 42 Let it be assumed that the remarks of Madison and Hamilton are open to Levy’s doubts, they cannot tip the scales against the clear recognition of judicial review by 15 members who spoke to the issue in the Convention, plus 6 or 7 delegates who spoke thereafter.43

Finally, Levy finds it “striking . . . that there were so few State precedents prior to the Convention.” 44 That is not surprising in view of the short span between 1776 and 1787, during most of which the States were fighting for survival. If some “precedents” are “spurious” in light of present-day research, the important fact is that they were thought to exemplify judicial review.45 What men think the facts are is more influential than the actual facts.46 Levy himself says, “The idea of judicial review was, nevertheless, rapidly emerging, a fact which adds retrospective significance to the few precedents.” 47 The decade preceding adoption of the Constitution was one of great intellectual ferment in which, Gordon Wood has shown, a revolution in political thinking was taking place.48 The postulate, for example, that sovereignty was in the people, that rights need not flow from the Crown, was far more revolutionary than judicial review.49 The Founders, as Corwin emphasized, took “Federalism, checks and balances, judicial review . . . not in the form of institutions tested and hammered into shape by practice, but as raw ideas.” 50 What has since become obscure to this generation was clear enough to a great contemporary, James Wilson, second only to Madison as an architect of the Constitution and chief advocate in Pennsylvania of its adoption. In 1790–1791 he was a Justice of the Supreme Court as well as a professor of law in Philadelphia. In the course of a series of Lectures on Law he declared that under the Constitution the effect of legislative “extravagancies may be prevented . . . by the judicial authority.” “Every transgression” of the constitutional “bounds of legislative power” shall thus be “adjudged and rendered vain and fruitless.” 51

Were the evidence that judicial review was contemplated and provided for by the Framers far less weighty, it should yet be preferred to a theory which rests judicial review on no evidence at all, for that represents a naked usurpation of power nowhere granted. If, however, judicial review is in fact derived from the text and history of the Constitution, it must be within the compass envisaged by the Framers—policing of boundaries and exclusion of policymaking reserved to the legislature. History cannot be invoked to establish the power, then discarded when seen to limit its scope.

Supplementary Note on the Role of the Court

activist theorizing

Thus the framers of the Fourteenth Amendment were altogether unlikely to enlarge the jurisdiction of the federal courts.

20

Why the “Original Intention”?

Current indifference to the “original intention” —shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments—is a relatively recent phenomenon. Those who would adhere to it are scornfully charged with “filio-pietism,” “verbal archeology,” 1 “antiquarian historicism that would freeze [the] original meaning” of the Constitution.2 We are told that the Framers intended to leave it “to succeeding generations [meaning judges] . . . to rewrite the ‘living’ constitution anew,” 3 an argument opposed to historical fact. The sole and exclusive vehicle of change the Framers provided was the amendment process; judicial discretion and policymaking were in high disfavor; all “agents and servants of the people” were to be “bound by the chains” of a “fixed Constitution.” Certainly Justice Story did not regard himself as holding a commission “to rewrite the ‘living’ constitution anew”:

Why is the “original intention” so important? The answer was long since given by Madison: if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable government, more than for a faithful exercise of its powers.” 5 A judicial power to revise the Constitution transforms the bulwark of our liberties into a parchment barrier. This it was that caused Jefferson to say, “Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” 6 Given a system founded on a dread of power, with “limits” to fence it about, those who demand compliance with those limits (pursuant to the counsel of four or five early State constitutions) are not to be charged with invoking the shades of the Framers in order to satisfy “the need for certainty . . . If we pretend that the framers had a special sort of wisdom, then perhaps we do not have to think too hard about how to solve pressing social problems.” 7 The issue rather is whether solution of those “pressing social problems” was confided to the judiciary.8

Effectuation of the draftsman’s intention is a long-standing rule of interpretation in the construction of all documents—wills, contracts, statutes—and although today such rules are downgraded as “mechanical” aids, they played a vastly more important role for the Founders. Hamilton, it will be recalled, averred: “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 9 That Hamilton was constrained thus to reassure the ratifiers testifies to prevailing distrust of unbounded judicial interpretive discretion.10 Some fifty years later, Justice Joseph Story, perhaps the greatest scholar who sat on the Supreme Court, emphasized that such rules provided a “fixed standard” for interpretation,11 without which a “fixed Constitution” would be forever unfixed. The Constitution, in short, was written against a background of interpretive presuppositions that assured the Framers their design would be effectuated.

The rules governing “intention” reach far back in legal history; but for our purposes it suffices that English case-law emphasis on effectuation of the “original intention” was summarized in Bacon’s Abridgment (1736)12 and restated in 1756 by Thomas Rutherforth,13 in a “work well known to the colonists.” 14 Rutherforth assimilated the interpretation of statutes to that of contracts and wills and stated that “The end, which interpretation aims at, is to find out what was the intention of the writer, to clear up the meaning of his words.” 15 And he concluded that “the intention of the legislator is the natural measure of the extent of the law.” 16 The influence of these presuppositions on the Founders is no matter of conjecture. On the heels of the Convention, Justice James Wilson, a leading participant, said: “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” 17 Not long thereafter Jefferson pledged as President to administer the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated . . . it.” 18 That view was echoed by Chief Justice Marshall, himself a participant in the Virginia Ratification Convention: if a word “was so understood . . . when the Constitution was framed . . . [t]he convention must have used it in that sense.” 19 It was reaffirmed by Justice Holmes: an amendment should be read in a “sense most obvious to the common understanding at the time of its adoption.” 20

Enchanted by judicial fulfillment of libertarian hopes, academe, on one ground or another, has endeavored to discredit “original intention,” to rid us of the “dead hand of the past.” 21 But neither has openly been repudiated by the Court. To the contrary, it has been the Court’s practice over the years to consult the intention of the Framers; the Court’s concern, as Louis Pollak remarked, “for the original intent of the framers of the Constitution remains high.” 22 An arresting example is furnished by the exchange between two “activists,” Justices Black and Goldberg, aligned on opposing sides. To Black’s condemnation of judicial “amendment,” Goldberg responded: “Of course our constitutional duty is to construe, not to rewrite or amend the Constitution! . . . Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and the purposes of the Framers.” 23 So, too, both Justices Black and Frankfurter, on opposite sides of the fence in Adamson v. California, invoked the original intention.24

To impeach the “original intention,” academicians sought to discredit resort to “legislative history” in general on the ground that the records are incomplete,25 that they are inconclusive because strewn with conflicting claims. Such charges are irrelevant to the records of the 39th Congress, a “complete” verbatim record of the entire debates. Insofar as there were conflicting opinions, the views of racist Democrats who sought to kill both the Civil Rights Bill and the Fourteenth Amendment carry no weight; those of a handful of radical dissentients for whom neither Bill nor Amendment went far enough are overborne by the will of the great Republican majority—for example, to leave control of suffrage to the States. That will is implicitly stated in the §2 curtailment of representation when a State denies or abridges suffrage—recognition of power to do so; it is unequivocally confirmed by the Report of the Joint Committee on Reconstruction, by those in charge of the Bill and the Amendment, and by many others in the course of the debates. On a centuries-old canon of interpretation, that intention is as good written into the text.26 When a legislature “has intimated its will, however indirectly,” Justice Holmes held, “that will should be recognized and obeyed . . . it is not an adequate discharge of duty for courts to say: ‘We see what you are driving at, but you have not said it.’ ” 27 The intention of the sovereign people, whether expressed in convention or through the amendment process, demands even greater obedience.

Another attempt to dissolve traditional bonds was by way of semantics. To demonstrate that “only present current meanings are pertinent,” 28 Charles Curtis delivered himself of a “profound discourse on the meaning of meaning,” 29 liberally sprinkled with Aristotelian essences and linguistics.30 But four years earlier, in an article giving some sage counsel to draftsmen, Curtis advised, “What the author of a legal document is trying to control is the future . . . to control this person’s conduct in the future” 31 —more graphically expressed in Jefferson’s “bind him down . . . by the chains of the Constitution.” If that be the purpose of drafting, as seems indisputable, it is aborted by a theory that leaves another person free to read his own meaning into the draftsman’s words. Commenting on Curtis’ “meaning of meaning,” Willard Hurst matter-of-factly pierced to the heart of the matter: “When you are talking about constitutional law, you are talking about the balance of power in the community and the question of how you find meaning boils down concretely here to who finds the meaning.” 32 May the Justices supplant the value-choices of the Framers with their own? An officeholder like Santarelli appreciated such realistic implications.33

If the Court may substitute its own meaning for that of the Framers it may, as Story cautioned, rewrite the Constitution without limit. But, Leonard Levy maintains: “Whatever the framers of the Fourteenth intended, there is no reason to believe that they possessed the best insights or ultimate wisdom as to the meaning of their words for subsequent generations . . . Words do not have fixed meanings. As Justice Holmes once remarked, a word is ‘the skin of living thought and may vary greatly in color and content according to the circumstances and time in which it is used.’ ” 34 Of course, were Holmes drafting he would use words in their present meaning, but that is a far cry from the view that he would feel free to substitute his own meaning in a subsisting document for that of bygone draftsmen. As we have seen, he felt bound to give effect to the intention of the legislators, and it will hereafter appear that he held that words must be given the meaning they had at the time they were set down.35 There is, moreover, a serious flaw in the Levy analysis, which appears more plainly in John Wofford’s statement that if “the meaning of a word is its use, and if its use can never be found apart from its context, then we need only add that an inseparable constituent of context is the time at which the use occurs to show that a past meaning can not bind the present.” 36 Now one who reads what another has written or seeks to interpret it does not in common usage really “use” the word. It is the writer who “used” it, and the traditional function of interpretation, as Rutherforth stated above 200 years ago, is to ascertain “what was the intention of the writer?” 37 On the Levy-Wofford analysis we are free to read Hamlet’s statement that he “can tell a hawk from a handsaw,” then meaning a heron, as if he referred to our pointed-tooth cutting tool because the meaning of “handsaw” has changed, reducing Shakespeare to nonsense.38 Even Humpty-Dumpty did not carry it so far as to insist that when Alice “used” a word he could dictate what she meant. With Willard Hurst, I would underscore that “if the idea of a document of superior authority” —the “fixed Constitution” to which the Founders were attached— “is to have meaning, terms which have a precise history filled content to those who draft and adopt the document [such as “due process” ] or to which they attach a clear meaning [such as “equal protection” ] must be held to that precise meaning.” 39 To hold otherwise is to convert the “chains of the Constitution” to ropes of sand.

Like the Constitution, the Fourteenth Amendment was written against the Bacon-Rutherforth background, clearly restated in 1860.40 Even Charles Sumner, archradical of the 39th Congress, was well aware that

A “transcript of their minds” was left by the framers in the debates of the 39th Congress, and they left abundant evidence that, for example, in employing “equal protection of the laws” they had in mind only a ban on discrimination with respect to a limited category of “enumerated” rights. Disregard of that intention starkly poses the issue whether the Court may “interpret” black to mean white, to convert the framers’ intention to leave suffrage to the States into a transfer of such control to the Supreme Court.

Supplementary Note on Original Intention

the american scene

english sources

james hutson’s critique of the sources

This is an attestation that the records confirmed his recollection. Because few constitutional cases nowadays arise under the 1787 Constitution, Hutson’s critique has little practical consequence. Nevertheless a historian may take exception to Hutson’s criticism of the 1787 records.

On several occasions it has fallen to me to trace a particular issue through the several Conventions, and I have found remarkable unanimity. That all reports were unreliable in such particulars is highly improbable. Widely scattered “inexpert” transcribers do not commit one and the same error unless they are engaged in a widespread conspiracy. Thus:

(1) There was remarkable unanimity in the Federal Convention, The Federalist, and the Ratification Conventions that the Senate was to participate in making treaties, not merely to rubber-stamp them after they had been made by the President. The unanimity on so important an issue deserves a detailed account.

21

Arguments for Judicial Power of Revision

Chief Justice Marshall

Where early claims to extraconstitutional power were made in the name of “natural law,” the present fashion is to invoke the “living Constitution” when it is sought to engraft or amputate a limb.1 Commentators at a loss to justify judicial arrogations fall back on Marshall’s sonorous reference to a “constitution intended to endure for ages to come.” 2 In an oft-quoted apostrophe, Justice Frankfurter declared that it “expressed the core of [Marshall’s] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.” 3 It has become a mythic incantation.4 Chief Justice Hughes, when confronted by the “mortgage moratorium”-“impairment of contract” problem, declared:

At best Marshall’s dictum represents a self-serving claim of power to amend the Constitution. In Justice Black’s words, “in recalling that it is a Constitution ‘intended to endure for ages to come,’ we also remember that the Founders wisely provided for the means of that endurance: changes in the Constitution are to be proposed by Congress or conventions and ratified by the States.” 7 Claims to the contrary need to be measured by Lord Chief Justice Denman’s observation that “The practice of a ruling power in the State is but a feeble proof of its legality.” 8 Such judicial claims stand no better than the bootstrap “precedents” created by a number of presidents for reallocation to themselves of the warmaking power confided to Congress, in justification of single-handed commitments of the nation to war, as in Vietnam.9 But the fact is, as I shall show, that Marshall’s words have been removed from context, that he flatly repudiated the revisory power Hughes attributed to him, and that other Marshall utterances also show that the conventional view of M’Culloch does not represent the “core of his constitutional philosophy.”

Marshall’s dictum was uttered in M’Culloch v. Maryland; the issue was whether the Constitution empowered Congress to establish the Bank of the United States, and that turned on whether a bank was a proper means for execution of other expressly granted powers. Marshall reasoned that a government “intrusted with such ample powers” as “the great powers, to lay and collect taxes; to borrow money; to regulate commerce,”

Manifestly, this was merely a plea for some freedom in the “choice of means” to execute an existing power, not for license to create a fresh power at each new crisis. Marshall himself flatly denied such license-claims in a pseudonymous debate with Judges Spencer Roane and William Brockenbrough of Virginia.

M’Culloch immediately had come under attack. To Madison the Court’s ruling seemed

Thus, the chief architect of the Constitution rejected the replacement of the amendment process by judicial revision as an “assumption of powers never meant to be granted.” Even more severe strictures were published by Roane and Brockenbrough. Marshall leapt to the defense under a pseudonym; speaking to the “intended to endure for ages” phrase, he said:

Again and again he repudiated any intention to lay the predicate for such “extension by construction.” There is “not a syllable uttered by the court” that “applies to an enlargement of the powers of congress.” 13 He rejected any imputation that “those powers ought to be enlarged by construction or otherwise.” 14 He emphasized that “in all the reasoning on the word ‘necessary’ the court does not, in a single instance, claim the aid of a ‘latitudinous’ or ‘liberal’ construction.” 15 He branded as a “palpable misrepresentation” attribution to the Court of the view of the “necessary and proper clause” “as augmenting those powers, and as one which is to be construed ‘latitudinously’ or even ‘liberally.’ ” 16 “It is not pretended,” he said of the “choice of means,” “that this right of selection may be fraudulently used to the destruction of the fair landmarks [Madison’s term] of the constitution.” 17 Finally, the exercise of the judicial power to decide all questions “arising under the constitution and laws” of the United States “ cannot be the assertion of a right to change that instrument. ” 18 Slender as was the justification for invocation of Marshall’s dictum prior to Gerald Gunther’s discovery of Marshall’s Defense, it has been shattered altogether by Marshall’s categorical disclaimer of judicial “right to change that instrument.” 19

Before leaving M’Culloch, account should be taken of a proposal in the Federal Convention to authorize Congress “to grant charters of incorporation.” Rufus King pointed out that it “will be referred to the establishment of a Bank, which has been a subject of contention” in Philadelphia and New York. Modified to apply only to canals, it was voted down 8 to 3.20 Louis Pollak points out that “This legislative history was known at the time M’Culloch v. Maryland was decided, for Jefferson had utilized it in his 1791 memorandum to Washington opposing the Bank Bill.” 21 As a successor to Jefferson as Secretary of State, Marshall had more reason than most to know. His omission to notice it is the more puzzling in light of his allusion to the heated debate on the subject in 1789.22 For the moment discussion of a possible clash between word and deed may be deferred to examination of other Marshall opinions—strangely never mentioned in the “living Constitution” incantations—which adhere to the “constitutional philosophy” he proclaimed in the Roane-Brockenbrough debates.

In Ogden v. Saunders, Marshall stated that the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers.” 23 In Gibbons v. Ogden he stated that if a word was understood in a certain sense “when the Constitution was framed . . . [T]he convention must have used it in that sense,” and it is that sense that is to be given judicial effect.24 In Osborn v. Bank of the United States, he stated: “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature” 25 —that is, of the “original intention.” In Providence Bank v. Billings, he stated: “The constitution . . . was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body and its relation with its constituents furnish the only security . . . against unwise legislation generally,” echoing Gerry’s rejection of judicial “guardians.” 26 These statements are irreconcilable with the interpretation Hughes put on the M’Culloch dictum. Their significance was summed up by Marshall’s associate, Justice Henry Baldwin, who, after noting Marshall’s “a constitution we are expounding,” went on to say, “no commentator ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.” 27

The evidence, I submit, calls for an end to the incantatory reliance on Marshall’s “a Constitution . . . to be adapted to the various crises of human affairs.” If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.28

Mr. Justice Holmes

Another lofty dictum canonized by proponents of judicial lawmaking is that of Justice Holmes in Missouri v. Holland:

The magic spell of the superb literary artist must not blind us to the narrow issue actually decided; for it is a fundamental tenet of case law that all statements in a case are to be confined to that decision.30 At issue was whether the treatymaking power extended to an agreement with Great Britain for the protection of migratory birds which annually traversed parts of the United States and of Canada. Addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, Holmes held, “Wild birds are not in the possession of any one; and possession is the beginning of ownership. The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away.” He therefore found that the “States are individually incompetent to act,” that the national interest in such migratory birds was of the “first magnitude” and “can be protected only by national action in concert with that of another power,” 31 and concluded that “it is not lightly to be assumed that in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.” 32 Holmes might have cited Hamilton’s explanation that the treaty power was to have “the most ample latitude—to render it competent to all the stipulations which the exigencies of national affairs might require.” 33 Instead he rose to one of his great rhetorical flights:

The reader will indulge an attempt at more pedestrian analysis. The Tenth Amendment, on which Missouri relied, provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Given that in this area a State is “incompetent” to act, it could hardly lay claim to a “reserved” power to do so. According to Hamilton, a power to enter into “ all the stipulations which the exigencies of national affairs might require” had been delegated to the United States. It follows that a plenary treaty power did not invade a nonexistent State power.35 Consequently Missouri v. Holland furnishes no warrant for encroachment upon actual, reserved State powers, nor for revision of express or implicit constitutional provisions because a new day has dawned.

The cases which confirm that Holmes respected and adhered to the intention of the draftsmen may for the moment be deferred while we consider Holmes’ dicta in Gompers v. United States: “ [the] provisions of the Constitution . . . are organic living institutions transplanted from English soil. Their significance is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth.” 36 Like “living constitution” the words “the line of their growth” have become a shibboleth of judicial lawmaking, for a Constitution, be it remembered, “grows” only by judicial accretions. Gompers merely involved the meaning of a common law term, “contempts” of court, and the legal meaning of that term could no more be ascertained by resort to a dictionary than could that of “trial by jury” or “habeas corpus.” For that purpose resort to the common law was essential, and in traditional fashion Holmes looked to the common law for the “origin” and “line of growth” of contempts. The issue was whether a criminal contempt lies for violation of an injunction. Justice Holmes held: “So truly are they crimes that . . . in the early law they were punishable only by the usual criminal procedure” and in England still “are tried that way.” 37 By this “origin” and “line of growth” he was not remotely claiming judicial power to “change” the Constitution, but was giving a common law term its traditional meaning.

Other Holmes opinions confirm that such a claim was far removed from his thinking. In Johnson v. United States he held that when a legislature “has intimated its will . . . that will should be recognized and obeyed.” 38 Although this referred to a statute, Holmes scarcely attached more importance to the will of a legislature than to that of the people met in convention. Indeed, he applied the parallel rule to an Amendment in the subsequent case of Eisner v. Macomber: “I think that the word ‘incomes’ in the Sixteenth Amendment should be read in ‘a sense most obvious to the common understanding at the time of its adoption.’ ” 39 Earlier, in Lochner v. New York, he had protested against the majority’s identification of its economic predilections with the Fourteenth Amendment,40 and a few years after Gompers, in Baldwin v. Missouri, he stated:

In short, Holmes deplored judicial invasion of rights reserved to the States, condemned uncurbed judicial discretion to identify personal predilections with constitutional mandates, and recognized the perversion of due process that made such practices possible—all of which is diametrically opposed to the current reading of the Gompers and Holland dicta. Those who march under the pennons of those dicta have overlooked Holmes’ statement that “I do not expect or think it desirable that the judges should undertake to renovate the law. That is not their province.” 42

Mr. Justice Frankfurter

Proponents of a power to “adapt” the Constitution to current needs also quote a dictum of Justice Frankfurter in Youngstown Sheet & Tube Co. v. Sawyer: “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss that life has written about them.” 43 Once again this is a statement lifted from its context. Frankfurter had in mind the rule that a long-standing executive interpretation illuminates an ambiguous provision: “In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on ‘Executive Power’ vested in the President.” To avert a too-sweeping implication he explained that “Deeply embedded traditional ways of conducting a government cannot supplant the Constitution or legislation; but they give meaning to the words of the text or supply them,” 44 that is, if the meaning is otherwise obscure.

That Frankfurter did not refer by such a “gloss” to judicial encrustations is inferable from his assertion on another occasion of a right to look to the Constitution itself rather than to what his predecessors had said about it.45 Then, too, in United States v. Lovett he had distinguished “broad standards,” which “allow a relatively wide play for individual legal judgments,” from “very specific provisions” such as the prohibition of “bills of attainder,” which must be read as “defined by history. Their meaning was so settled by history that definition was superfluous.” 46 To be sure, he placed “due process of law” among the “broad standards”; in this, however, he was mistaken, for history leaves no doubt that there was no “substantive” due process, that due process did not apply to legislative action but was confined to procedure in the courts, as was unmistakably expressed by Hamilton in 1787. The purely “procedural” content of due process was, in the words of Charles Curtis, “as fixed and definite as the common law could make a phrase.” 47 Frankfurter himself adverted to the “fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” 48 Under his own criterion respecting common law terms—they must be read as “defined by history” —we cannot, to borrow from one of his opinions, “extend the definitions . . . Precisely because ‘it is a constitution we are expounding’ . . . we ought not to take liberties with it.” 49 And precisely because, in Frankfurter’s own words, “there was a deep distrust of a federal judicial system” 50 in 1787, and of the courts in 1866 as well, we should not read “due process” to confer untrammeled lawmaking power on the judiciary. Although the “deepest conviction” he cherished was that “no five men, or nine, are wise enough or good enough to wield such power over an entire nation,” 51 it was not deep enough to overcome his confidence in his own wisdom when he ascended to the bench.52

To convert the Marshall-Holmes-Frankfurter statements into constitutional dogma is both to disregard how narrow were their actual decisions and their reaffirmations that judges are under a duty to effectuate the original understanding and to respect the historical meaning of common law terms. Reliance on those statements for a doctrine of judicial power to “change” the Constitution only exposes the hollowness of the case for judicial revisionism.

Proponents of a “living Constitution” often twit me with the discrepancy between Marshall’s deeds and his words. It is true that some of his decisions may be regarded as judicial lawmaking. Willard Hurst observed that “To rule that a corporation charter enjoyed the protection of a ‘contract’ under the constitutional provision [impairment of contracts clause] was a clear-cut act of judicial law-making.” 53 And if knowledge can be brought home to Marshall that the Convention had specifically rejected a proposal for incorporation of banks, his disclaimers respecting M’Culloch might be regarded as “fraudulent.” 54 But such examples afford a sad triumph for revisionists. To do what one disclaims as he acts is a reproach to any man, all the more when it is done by the oracles of the law whom we are urged to regard as the “national conscience.” Of no one should more fastidious morality be required than of the Supreme Court.

Professors Thomas C. Grey and Louis Lusky

Sensible of the deficiences of conventional arguments for judicial lawmaking, Thomas Grey and Louis Lusky have proffered new theories on which the function should be based. Grey would invoke a continuing “natural law” tradition, while Lusky finds that the Founders conferred an “implied right” of judicial revision.

Grey espouses the Court’s “role as the expounder of basic national ideals of individual liberty and fair treatment, even when the content of these ideals is not expressed as a matter of positive law in the written Constitution.” 55 He concedes, however, that “such a role . . . is more difficult to justify than is the role assigned by the pure interpretive model,” his label for Justice Black’s restrictive view of judicial review.56 That view, he states, “is one of great power and compelling simplicity . . . deeply rooted in our history and in our shared principles of political legitimacy. It has equally deep roots in our formal constitutional law.” 57 The “grave difficulties” that attend the lawmaking model explain the judicial tendency, he continues, “to resort to bad legislative history” to support desired results. If “judges resort to bad interpretations in preference to honest exposition of deeply held but unwritten ideals, it must be because they perceive the latter mode of decision-making to be of suspect legitimacy.” 58

To answer the “question whether in our Constitution we have actually granted this large power to our judges” he briefly sketches an argument that he hopes to expand and document later.59 His posits that the generation that framed the Constitution was attached to “the concept of a ‘higher law’ protecting ‘natural rights,’ and taking precedence over ordinary positive law . . . Thus in the framing of the original American constitutions it was widely accepted that there remained unwritten but still binding principles of higher law. The Ninth amendment is the textual expression of this idea in the Federal Constitution.” It was “widely assumed,” he states, “that judges would enforce as constitutional restraints the unwritten natural rights.” 60 Since Grey postponed documentation for these propositions, detailed commentary is not possible. Robert Cover concluded, however, that the Founders were attached to positive rather than to natural law.61 Judicial review was an innovation that had excited the animosity of several State legislatures;62 its proponents advocated it in restricted terms: the policing of constitutional “limits.” 63 My own study of the records of the Federal Convention uncovered no intimations that natural law would empower judges to rise above the positive limitations of the Constitutions; evidence to the contrary may be postponed to examination of the Lusky thesis, for that evidence, I consider, refutes both the Grey and Lusky theories.

Here it may suffice to inquire in what way the “Ninth amendment is the textual expression” of the “idea” that “there remained unwritten but still binding principles of higher law.” Were they binding on the courts? The Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Because certain nonenumerated rights are “retained by the people,” it does not follow that federal judges are empowered to enforce them. Apart from “diversity” suits between citizens of different States, fashioned to “insure fair dealing between citizens of different States,” 64 federal jurisdiction is limited to cases “arising under this Constitution,” for example, one invoking Fourth Amendment guarantees. It needs at least to be asked whether federal courts are authorized to enforce extraconstitutional “rights” that have neither State nor federal sanction. An implication to the contrary may be drawn from Madison’s explanation in the First Congress immediately following his reference to the Ninth Amendment. If the guarantees of the Bill of Rights, he said, would be incorporated in the Constitution, the “independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights.” 65 The appeal to the Ninth Amendment was made by Justice Goldberg in Griswold v. Connecticut,66 but the cases he cited lend no support for invocation of the Ninth Amendment; they involve either Bill of Rights guarantees that the Court has embodied in the Fourteenth Amendment, or rights like those of the right to travel or to associate which the Court found protected by the “liberty” of the Fifth and Fourteenth Amendment due process clauses.67 In short, when the Court deemed a right worthy of protection it grounded intervention on the Bill of Rights or the Fourteenth Amendment, rendering resort to the Ninth Amendment superfluous. For me, as for Justice Black, the Amendment “was passed not to broaden the powers of this Court . . . but . . . to limit the Federal Government to the powers granted.” 68

Grey considers that the Fourteenth Amendment likewise was influenced by “natural rights”:

Prior to the Civil War the courts were most inhospitable to “natural rights” as Robert Cover convincingly shows in his review of the fugitive slave cases.70 Even in a “property” case, Wynehamer v. The People, the court dismissed claims based on “natural law” and fabricated a novel theory of “substantive due process.” But that theory found no favor with other courts71 until the Supreme Court, under ceaseless prodding by Justice Field, embraced it in the 1890s. It is true that the framers embodied “fundamental human rights” in the Civil Rights Act and thence in the Fourteenth Amendment, but those were regarded as restricted in scope and enumerated, for example, the right to own property, to contract; “political and social” rights were unmistakably excluded.72 The equality (only partially) envisaged in the Declaration of Independence plainly found no place in the thinking of the framers of the Fourteenth Amendment.73 Grey’s reference to the “constitutional theory” of a “wing of the anti-slavery party” that allegedly “was the formative theory” underlying §1 invokes the Graham-tenBroek-Kelly theory, which simply cannot stand up against the historical facts.74 In the history of the Fourteenth Amendment, it may confidently be stated, there is not a glimmering of intention to authorize judges to enforce rights beyond those enumerated in the Civil Rights Act. Far from endowing the judiciary with a broad power to enforce “natural rights” going beyond those so enumerated, the courts were pointedly omitted from the §5 power to enforce even the rights granted by §1.75

Lusky, who sought an improved rationale for judicial intervention in behalf of libertarian ideals as long ago as 1938, when he aided Justice Stone in fashioning the Carolene Products footnote,76 was at last driven to ask: “ By what right does [the Court] revise the Constitution?” 77 His attempt to supply an answer by way of a theory of “implied power” to do so is set forth in his book By What Right? Many of his comments on the cases are rewarding, but strange is his line of demarcation. Down to 1961 or 1962 “the Court maintained its traditional passive posture,” 78 but after 1962 it engaged in “a dazzling display of seemingly freehand constitution-making without apparent concern for the intention of the Constitutors.” 79 Few would regard Brown v. Board of Education (1954) as exemplifying the Court’s “passive posture”; the evidence set forth in Chapter 6 hereof demonstrates that it was “making new law for a new day. ” In fact, Lusky praises “the tremendously valuable work it has done in the past third of a century.” It “has performed splendidly” as the “citadel of the republic—the main instrument for societal self-perfection,” 80 a performance far removed from a “passive posture.”

Lusky’s anxiety was aroused by the “neoprivacy” (contraceptive and abortion) cases, where the discredited “substantive due process began to reappear . . . under a different banner bearing the watchword privacy.” 81 These are the cases he regards as “usurpation of power.” 82 Yet neither the constitutional text nor its history forbid judicial interference with State regulation of the right of privacy, whereas the history of the Fourteenth Amendment plainly does preclude such interference with State control of suffrage and segregation. We may therefore with Justice Harlan view the State reapportionment cases “as a much more audacious and far-reaching judicial interference with the state legislative process . . . than the comparatively innocuous use of judicial power in the contraceptive case.” 83 Presumably Lusky considers that the desegregation and reapportionment cases meet the criteria he suggests for employment of the “implied power” to revise the Constitution, but he himself recognizes that whether those tests are “so vague as to be illusory” poses a question “on which the validity of the [implied power] must stand or fall.” 84 Examination of that question may be dispensed with because, as will appear, his argument for existence of the “implied power” is fundamentally defective, and because the materials I shall set out to demonstrate that defect equally dispose of Grey’s resort to “natural law.”

Lusky bases his “implied power” to “revise the Constitution . . . exercising the prerogatives of a continuing constitutional convention,” upon a sweeping assumption:

This assumes the answer to the very question in issue: did the Framers empower the judges to revise the Constitution. It assumes that the Framers handed the constitution-changing function to a “surrogate,” whose crystal-gazing as to effectuation of their “political philosophy” is made a substitute for the express terms of the Constitution. Such divination recalls the Chinese emperor’s “mandate from heaven.” Lusky’s assumption does in fact do “violence . . . to known historical facts.”

He considers that Marshall “unfolded the doctrine of implied powers” in M’Culloch v. Maryland, drawing on Marshall’s statement that, given ample powers, the government “must also be entrusted with ample means for their execution.” 86 But ample means to execute existing powers cannot stretch to their expansion or to creation of new powers. Marshall himself disclaimed “any extension by construction of the powers of Congress”; he held that the judicial power “cannot be an assertion of a right to change” the Constitution.87 The generation that framed the Constitution was devoted to a “fixed constitution”; courts “were not regarded as instruments of social change.” 88 Judicial participation in legislative policymaking was forthrightly rejected; despite arguments by George Mason and James Wilson that judicial review confined to violation of some constitutional provision would not allow judges to set aside oppressive though constitutional laws, the Framers would not, as Elbridge Gerry stated, make judges the “guardians of the people.” 89 Now Lusky would have it that the Framers turned policymaking over to the judges in toto, constituting them a super legislature, notwithstanding Hamilton’s reassuring quotation of Montesquieu: “of the three powers—the judiciary is next to nothing.” 90

Hamilton alone presents an insuperable obstacle to the Grey-Lusky theories. Presumably inspired by States’ Rights distrust of a federal judiciary,91 he averred that the Constitution is “binding” on all, including the peoples’ representatives, who have no “warrant” to make “a departure” from it “until the people” have changed it by a “solemn and authoritative act,” 92 that is, by amendment. He stated that “the intention of the people [ “ought to be preferred” ] to the intention of their agents.” That he meant to leave no room for displacement of that “intention” by the Justices is underscored by his scornful dismissal of the notion that “the courts on the pretense of a repugnancy may substitute their own pleasure [for] the constitutional intentions of the legislature.” 93 As Lusky himself comments, this “is hard to square with anticipation of judicial constitution-making power.” 94 It is not “hard to square,” it is impossible—as Hamilton’s further statement that judges would be impeachable for “deliberate usurpations on the authority of the legislature” confirms. What “usurpations” could there be if judges were empowered to act as “surrogates” of the Founders or to enforce the wide-open spaces of “natural law”? Both the Grey and Lusky theories set at naught the “limits” so carefully framed by the Founders; both would circumvent the Article V method of change by amendment.

22

“Trial by Jury”: Six or Twelve Jurors?

The increasingly free and easy judicial revision of constitutional norms is strikingly exemplified by Williams v. Florida,1 wherein the Supreme Court, for the first time in our history, held that a 6-man jury satisfies the requirement of trial by jury. By Justice White’s own testimony a 12-man jury has been the invariable common law practice since “sometime in the 14th century” —600 years. The Court held in 1930 that “it is not open to question . . . that the jury should consist of twelve men, neither more nor less.” 2 But because history furnishes no explanation why the number 12 was chosen, Justice White dismisses it as “an historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” 3 Adherence to a practice for 600 years renders its “accidental” origin irrelevant, for as Coke stated, “usage and ancient course maketh law” 4 —all the more when that usage is embodied with full awareness in a written Constitution. The case for the practical wisdom of 12 jurors has been made by Hans Zeisel, Leonard Levy and others,5 so I shall focus on Justice White’s extraordinary approach to constitutional interpretation.

From Chief Justice Marshall onward the meaning of common law terms or institutions, which had a fixed content at the time they were incorporated into the Constitution, is to be ascertained by resort to that content.6 With little short of disdain Justice White rejects that meaning as representing “mystical or superstitious insights into the significance of ‘12.’ ” 7 “Typical” of such “superstition” is a dithyramb by that great “mystic” Lord Coke, in his crabbed explication of Littleton on Tenures: “it seemeth to me, that the law in this case delighteth herselfe in the number of 12; for there must not onely be 12 jurors for the tryall of all matters of fact but 12 judges of ancient time for tryall of matters of law in the Exchequer Chamber . . . And that number of twelve is much respected in holy writ, as in 12 apostles. ” 8 When men are moved to make exalted, mystical-religious explanations, it is because they deeply venerate the established practice.

Trial by jury was a central pillar of the society the colonists sought to erect; for centuries it had served as cherished buffer against oppressive prosecutors and judges.9 Blackstone, whose Commentaries were widely circulated in the colonies, and whose influence on this issue can be traced into the very terms of a number of State constitutions and utterances of the Founders, stated, “the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.” 10 The North Carolina Constitution of 1776 provided that “the ancient mode of trial by jury . . . ought to remain sacred and inviolable.” 11 Massachusetts, New Hampshire, Pennsylvania, and Vermont provided that it “shall be held sacred”;12 Georgia, South Carolina, and New York, that it was “inviolate forever.” 13 In the Virginia Ratification Convention the Wythe Committee recommended an amendment: that “the ancient trial by jury is one of the greatest securities to the rights of the people, and is to remain sacred and inviolable.” 14 George Mason in Virginia termed it “This great palladium of national safety,” and James Iredell in North Carolina referred to it as “that noble palladium of liberty.” 15 No element of judicial proceedings or power aroused such anxious inquiry as did trial by jury. Every facet of an institution held “sacred” by the Founders, therefore, needs to be approached with respectful regard.

Except for partial rejection of a jury of the “vicinage,” of which more hereafter, there is no indication that any incident of trial by jury was to be more “sacred and inviolate” than another. To the contrary, the First Continental Congress laid claim to the “inestimable privilege of being tried by their peers of the vicinage, according to the due course of the common law”;16 this was repeated in the Maryland Constitution of 1776.17 South Carolina provided that “the trial by jury, as heretofore used . . . shall be forever inviolably preserved.” 18 That usage had been described by Coke as already “very ancient” 19 and was reformulated in Bacon’s Abridgment as calling for a “petit jury . . . precisely of twelve, and is never to be either more or less,” as Chief Justice Matthew Hale had earlier stated.20 This “most transcendent privilege,” Blackstone stated, required a jury of 12.21 In the Virginia Ratification Convention, Governor Edmund Randolph said: “There is no suspicion that less than twelve jurors will be thought sufficient.” 22 Julius Goebel adverted to “popular sensitivity regarding any tampering with the ‘inestimable right of jury trial,’ ” and concluded that “any suggestion that the jury system as then entrenched might be amended in any detail was beyond tolerance.” 23 In the Virginia Ratification Convention, Grayson, for example, stated that “it is generally thought by Englishmen, that [trial by jury] is so sacred that no act of the [omnipotent] Parliament can affect it.” 24 How can this be reconciled with Justice White’s refusal to “ascribe a blind formalism to the Framers”? Far from being “wholly without significance ‘except to mystics,’ ” 25 the Framers would have regarded tampering with the number “12” as shaking the very pillars of the temple.

A Jury of the Vicinage

Justice White attached great weight to the Framers’ refusal to embody in the Constitution a traditional component of trial by jury—that the jury be drawn from the “vicinage,” the “neighborhood, or in medieval England, jury of the county.” 26 Article III of the Constitution provides that the jury trial “shall be held in the State where the said Crimes shall have been committed”; it does not purport to direct how the jury shall be drawn, and no illumination is furnished by the “very scanty history” of the provision.27 It received opposing interpretations in the Virginia Ratification Convention: Madison met an objection “that there was no provision for a jury from the vicinage” with the reply “if it could have been done with safety, it would not have been opposed,” 28 implying that Article III did not require that jurors be drawn from the vicinage. On the other hand, Randolph, who also had been a delegate to the Federal Convention, stated in Virginia, “nor is a jury from the vicinage in criminal cases excluded. This house has repeatedly resounded with this observation—that where a term is used, all its concomitants follow.” 29 In the upshot, the Virginia Convention attached to its approval an amendment proposing trial by a jury of the vicinage.30 And Justice White remarked that “concern” over failure to “preserve the common law right to be tried by a ‘jury of the vicinage’ . . . furnished part of the impetus for introducing” the Sixth and Seventh Amendments.31

In the First Congress, Madison proposed a jury “of the vicinage, with the requisite unanimity for conviction, of the right of challenge, and other accustomed requisites.” 32 It passed the House but was rejected by the Senate; went to Conference and emerged in what ultimately became the final version of the Sixth Amendment: a “jury of the State and district wherein the crime shall have been committed.” This Justice White properly views as “a compromise between broad and narrow definition” of the term “vicinage.” 33 The compromise sprang from the fact noted by Madison that “In many of the States, juries . . . are taken from the State at large; in others, from districts of considerable extent; in very few from the County alone. Hence a dislike to the restraint with respect to vicinage.” 34 What this history proves, is that the “vicinage” States did not have the votes to overcome a constitutional modification of the common law in this respect. Does it follow that the Founders meant also to curtail the right to challenge jurors, for example, which the Virginia Ratifiers were assured had been left intact by Article III,35 or to abolish the “mystic” number “12”?

Justice White draws three negative implications, which cast “considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” 36 First, “the mere reference to ‘trial by jury’ in Article III was not interpreted to include” vicinage.37 But there was more than a “mere reference”: trial by jury was qualified by “shall be held in the State,” which raised differences of opinion whether or not vicinage was affected. At most, Article III modified the common law in that respect alone. Second, “provisions which would have explicitly tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were eliminated.” Justice White recognizes that this elimination is “concededly open to the explanation that the ‘accustomed requisites’ were thought to be already included in the concept of a ‘jury.’ But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect.” 38 The assumption that the “accustomed requisites” already were thought to be included in the concept of a “jury” was not left to speculation. The Ratifiers had been assured again and again in Virginia by John Marshall, by Edmund Pendleton, the Mentor of its highest court, and by Randolph, that the words “trial by jury” embraced all its attributes, such as the right to challenge jurors.39 Curtailment of the vicinage requirement responded to the preponderant State practice; but the nonvicinage States were no less attached to a jury of “12” than the “vicinage” adherents,40 so that curtailment of vicinage does not argue for abandonment of “12.” In Pierson v. Ray the Supreme Court refused to read comprehensive language to abolish a much less treasured common law practice in the absence of a specific expression of intent to do so.41 Here, where ratification by the people is involved, it is even more important to demand a specific expression of intention to discard the treasured unanimous verdict by a jury of 12. Nothing in the Sixth Amendment phrase “a jury of the State and district” warned the people that by ratification they would surrender those attributes of a jury trial. Then, too, although the Founders, in framing the treason clause, had drastically narrowed the definition of “treason,” Chief Justice Marshall looked to the common law for other aspects of “treason.” 42 Like Marshall, we may conclude that a partial departure from the common law with respect to vicinage does not spell wholesale repudiation of other concomitants of trial by jury, that to embrace the contrary view is to do violence to the Framers’ reverence for the institution.

Third, Justice White reasoned, “where Congress wanted to leave no doubt that it was incorporating existing common law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary Bill . . . provided in certain cases for the narrower ‘vicinage’ requirement which the House had wanted to include in the Amendment.” 43 Now, as Justice White noticed, “the Senate remained opposed to the vicinage requirement, partly because in their view the then-pending judiciary bill—which was debated at the same time as the Amendments—adequately preserved the common law vicinage feature—making it unnecessary to freeze that requirement into the Constitution.” 44 “Vicinage” was specifically named because compromise of a disputed point so required. So, too, Justice White reads the Seventh Amendment provision that in civil cases “no fact tried by a jury, shall be otherwise reexamined in any Court . . . than according to the common law” against adoption of the 12-man jury.45 Again this arose out of the need to resolve a particular controversy. Strenuous objections had been made in the Ratification Conventions to the provision for the Supreme Court’s appellate jurisdiction of “questions both of law and fact” on the ground that facts found by a jury should be unreviewable. No aspect of judicial review excited greater opposition;46 as Patrick Henry stated in Virginia: “The unanimous verdict of twelve impartial men cannot be reversed.” 47 From settlement of a particular controversial issue it cannot be deduced that the Framers thereby intended to discard rights that had not once been challenged. Justice White, in my judgment, did not succeed in justifying a departure from the rule that common law terms must be given the meaning they had at the time of adoption.48

When Madison sought to explain the relation of Article III to vicinage, he said: “It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary.” 49 There the real “necessity” was that Virginia stood in a decided minority in its attachment to “vicinage”; it could not muster votes to overcome resistance to this aspect of jury trial. Since trial by jury was a fabric woven of many strands—a “seamless web” —we should be slow to countenance a rent, particularly one not dictated by the most urgent need. What necessity impelled the Court to jettison the “very ancient” 12-man jury?

The Court had painted itself into a corner when it held that the Fourteenth Amendment made the “trial by jury” provision of the Bill of Rights mandatory on the States,50 a position, as we have seen, that is without historical warrant. Since some States employed less than 12 men, the Court, as Justice Harlan observed, recognized that the ‘incorporationist’ view . . . must be tempered to allow the States more elbow room in ordering their own criminal systems.” 51 The Burger Court is presently retreating from the Warren Court’s imposition of federal requirements on State practice,52 and it might well have concluded that the quite recent extension of the Sixth Amendment’s trial by jury to the States was ill-considered and, therefore, as Justice Harlan stated, the Burger Court’s decision in Duncan v. Louisiana should be overruled.53 Instead, it chose to rupture a 600-year practice in order to adhere to a dubious decision, illustrating what Washington and Hamilton had warned against: a usurpation to meet a great emergency breeds usurpations where no emergency exists.

23

Conclusion

The historical records all but incontrovertibly establish that the framers of the Fourteenth Amendment excluded both suffrage and segregation from its reach: they confined it to protection of carefully enumerated rights against State discrimination, deliberately withholding federal power to supply those rights where they were not granted by the State to anybody, white or black. This was a limited—tragically limited—response to the needs of blacks newly released from slavery; it reflected the hagridden racism that held both North and South in thrall; nonetheless, it was all the sovereign people were prepared to do in 1868.

Given the clarity of the framers’ intention, it is on settled principles as good as written into the text. To “interpret” the Amendment in diametrical opposition to that intention is to rewrite the Constitution. Whence does the Court derive authority to revise the Constitution? In a government of limited powers it needs always be asked: what is the source of the power claimed? “When a question arises with respect to the legality of any power,” said Lee in the Virginia Ratification Convention, the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” 1 Or, as James Iredell put it, a law “not warranted by the Constitution . . . is bare-faced usurpation.” 2 Hamilton made clear that action not warranted by the Constitution is no less a usurpation at the hands of the Court3 than of a President. The suffrage-segregation decisions go beyond the assumption of powers “not warranted” by the Constitution; they represent the arrogation of powers that the framers plainly excluded. The Court, it is safe to say, has flouted the will of the framers and substituted an interpretation in flat contradiction of the original design: to leave suffrage, segregation, and other matters to State governance. It has done this under cover of the so-called “majestic generalities” of the Amendment— “due process” and “equal protection” —which it found “conveniently vague,” without taking into account the limited aims those terms were meant to express. When Chief Justice Warren asserted that “we cannot turn back the clock to 1868,” 4 he in fact rejected the framers’ intention as irrelevant. On that premise the entire Constitution merely has such relevance as the Court chooses to give it, and the Court is truly a “continuing constitutional convention,” constantly engaged in revising the Constitution, a role clearly withheld from the Court. Such conduct impels one to conclude that the Justices are become a law unto themselves.5

Can it be, then, that in a civilized society there exists no means of ridding ourselves of such a blight as segregation? No cost, it can be argued, is too high to be rid of the incubus. Archibald Cox observes: “To have adhered to the doctrine of ‘separate but equal’ would have ignored not only the revolution sweeping the world but the moral sense of civilization. Law must be binding even upon the highest court, but it must also meet the needs of men and match their sensibilities,” and it is for judges to “make law to meet the occasion.” 6 But, as Cox recognized, these “libertarian, humanitarian, and egalitarian” impulses “were not shared so strongly as to realize themselves through legislation,” still less through an amendment. They were only realized through the “fate which puts one man on the Court rather than another.” 7 I cannot bring myself to believe that the Court may assume a power not granted in order to correct an evil that the people were, and remain, unready to cure. Justification of judicial usurpation—the label Hamilton attached to encroachments on the legislative function—on the ground that there is no other way to be rid of an acknowledged evil smacks of the discredited doctrine that “the end justifies the means.” 8 John Stuart Mill cautioned against man’s disposition “to impose [his] own opinions . . . as a rule of conduct on others.” 9 The Inquisition burned heretics at the stake to save their souls.

Then there are the costs to constitutional government10 of countenancing such usurpation. As the Court itself has demonstrated, unconstitutional action to cure a manifest evil establishes a precedent, as Washington and Hamilton warned, that encourages transgressions when such urgency is lacking. Time and again the Justices themselves have accused their brethren of acting without constitutional warrant. So to act is to act unconstitutionally; in another field the Court itself branded its own course of conduct over a hundred-year span as “unconstitutional.” 11 “In a government of laws,” Justice Brandeis cautioned, “existence of the government will be imperilled if it fails to observe the law scrupulously.” 12 Justice Frankfurter added that “Self-willed judges are the least defensible offenders against government under law.” 13 How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally? Respect for the limits on power are the essence of a democratic society; without it the entire democratic structure is undermined and the way is paved from Weimar to Hitler.14

Proponents of the “original understanding,” Sanford Levinson justly charges, are rarely prepared to press it all the way: “Thus opponents of the [Vietnam] war eager to return to the original understanding of the War Power are not likely to be eager to return to what was probably the rather conservative initial understanding of freedom of speech.” 15 Rigorous constitutional analysis halts at the door of particular predilections. Setting practical considerations aside for the moment, intellectual honesty demands that the “original understanding” be honored across the board—unless we are prepared to accept judicial revision where it satisfies our predilections, as is the current fashion. But that is to reduce “law” to the will of a kadi. The list of cases that would fall were the “original understanding” honestly applied is indeed formidable. As Grey summarizes, “virtually the entire body of doctrine developed under the due process clauses of the 5th and 14th amendments,” the core “requirement of ‘fundamentally fair’ procedures in criminal and civil proceedings,” and “everything that has been labeled ‘substantive due process’ would be eliminated,” even though it “must constitutionally free the federal government to engage in explicit racial discrimination,” for “there is no textual warrant for reading into the due process clause of the fifth amendment any of the prohibitions directed against the states by the equal protection clause.” He adds, “there is serious question how much of the law prohibiting state racial discrimination can survive honest application of the interpretive [ “original understanding” ] model. It is clear that the equal protection clause . . . was not intended to guarantee equal political rights, such as the right to vote or to run for office, and perhaps including the right to serve on juries.” 16 But because repudiation of the cases would have undesirable consequences, it does not follow that the prior determinations were authorized by the Constitution.17 Whatever may be the merit of Judge Joseph Hutcheson’s method of decision in common law cases—first a “hunch,” then a hunt for legal rationalization18 —such reasoning backward in constitutional cases displaces choices already made by the Framers. It perilously resembles the subordination of “law” to the attainment of ends desired by a ruling power which was the hallmark of Hitlerism and Stalinism.

Had it fallen to me, therefore, to decide some of the “substantive due process” and “equal protection” cases ab initio, I should have felt constrained to hold that the relief sought lay outside the confines of the judicial power.19 It would, however, be utterly unrealistic and probably impossible to undo the past in the face of the expectations that the segregation decisions, for example, have aroused in our black citizenry—expectations confirmed by every decent instinct. That is more than the courts should undertake and more, I believe, than the American people would desire. But to accept thus far accomplished ends is not to condone the continued employment of the unlawful means. If the cases listed by Grey are in fact in contravention of the Constitution, the difficulty of a rollback cannot excuse the continuation of such unconstitutional practices.

This is not the place to essay the massive task of furnishing a blueprint for a rollback. But the judges might begin by curbing their reach for still more policymaking power, by withdrawing from extreme measures such as administration of school systems—government by decree—which have disquieted even sympathizers with the ultimate objectives. Such decrees cannot rest on the assertion that the Constitution demands busing, when in truth it is the Justices who require it20 in contravention of the framers’ intention to leave such matters to the States. The doctrinaire extension of false doctrine compounds the arrogation. So too, greater restraint in reapportionment matters, the return of the administration of local criminal, libel, and obscenity law to the States would not only respond to constitutional limitations but to preponderant public sentiment. Judges should take to heart Justice Holmes’ admonition in Baldwin v. Missouri:

His counsel is heavily underscored by the manifest intention of the framers to limit federal intrusion into State internal affairs to a plainly described minimum.

All this may seem like idle theorizing in light of Justice Stone’s famous dictum that “the only check upon our own exercise of power is our own sense of self-restraint.” 21 Were this true, it would offend against one of the most fundamental premises of our constitutional system. “Implicit in the system of government [the Framers] designed,” Alpheus Thomas Mason stated, “is the basic premise that unchecked power in any hands whatsoever is intolerable.” 22 “Unchecked power” emphatically was not confided to the judiciary; as Hamilton wrote in Federalist No. 81, the Justices may be impeached for usurpation of legislative power.23 President Taft, no wild-eyed radical, acknowledged in 1911 that the judicial system was not working as it should, and stated, “Make your judges responsible. Impeach them. Impeachment of a judge would be a very healthful thing in these times.” 24 Cumbersome as impeachment is, it is yet not so difficult as amendment, which requires approval by three-fourths of the States. At one time Brandeis and Frankfurter, it needs to be remembered, favored an amendment that would remove the due process clause from the Constitution altogether.25 But such heroic measures would be unnecessary in the face of an aroused public opinion, a mighty engine, as President Nixon learned after the “Saturday Night Massacre.” 26 “The Court,” wrote Charles L. Black, “could never have had the strength to prevail in the face of resolute public repudiation of its legitimacy.” 27

A prime task of scholarship, therefore, is to heighten public awareness that the Court has been overleaping its bounds. “ [S]cholarly exposure of the Court’s abuse of its powers,” Frankfurter considered, would “bring about a shift in the Court’s viewpoint.” 28 Such awareness is a necessary preliminary for, as Mason observed, “only that power which is recognized can be effectively limited.” 29 Calls for disclosure of the Court’s real role have been made by both proponents and opponents of judicial “adaptation” of the Constitution. Justice Jackson, it will be recalled, called on the Justices in the desegregation case to disclose that they were “making new law for a new day”; and Judge Learned Hand declared that “If we do need a third [legislative] chamber it should appear for what it is, and not as the interpreter of inscrutable principles.” 30

Forty years ago the philosopher Morris R. Cohen wrote to Professor Frankfurter, “the whole system is fundamentally dishonest in its pretensions (pretending to say what the Constitution lays down when they [the Justices] are in fact deciding what [they think] is good for the country.)” 31 But Martin Shapiro argued: “Suicide is no more moral in political than in personal life. It would be fantastic indeed if the Supreme Court, in the name of sound scholarship, were to disavow publicly the myth on which its power rests . . . If the myth . . . is destroyed . . . the Court loses power.” 32 Power in the service of moral imperatives must not rest on a sham.33 It is not “scholarship,” but obedience to constitutional limitations that calls for a halt. “The foundation of morality,” said Thomas Huxley, “is to have done, once and for all, with lying.” 34 On a practical level, as Presidents Lyndon Johnson and Richard Nixon learned, nondisclosure to the people creates a credibility gap.35

The nation cannot afford to countenance a gap between word and deed on the part of its highest tribunal, a tribunal regarded by some as the “national conscience.” It should not tolerate the spectacle of a Court that pretends to apply constitutional mandates while in fact revising them in accord with the preference of a majority of the Justices who seek to impose their will on the nation. Richard Nixon learned at last that even a President cannot set himself above the law, that he is obliged “ ‘to take Care that the Laws be faithfully executed.’ It is necessary and right that the nine Justices be held to a like standard.” 36 “The people,” in the words of five early State Constitutions, “have a right to require of their . . . magistrates an exact and constant observance” of the “fundamental principles of the Constitution.” 37 Among the most fundamental is the exclusion of the judiciary from policymaking.

Let it not be said of us as Gibbon said of Rome: “The image of a free constitution was preserved with decent reverence. The Roman senate appeared to possess the sovereign authority, and devolved on the emperors all the executive powers of government.” 38 Here no Senate devolved the policymaking powers on the Court; they are self-conferred and survive only because the American people are unaware that there is a yawning gulf between judicial professions and practice. An end, I would urge, to pretence. If government by judiciary is necessary to preserve the spirit of our democracy, let it be submitted in plainspoken fashion to the people—the ultimate sovereign—for their approval.

Supplementary Note on the Conclusion

[1.]The American Supreme Court 132 (1960). “ ‘Government by Judiciary,’ is no idle phrase.” A. T. Mason and W. M. Beaney, American Constitutional Law 21 (1954).

[2.]See Walton Hamilton, “The Path of Due Process of Law,” in The Constitution Reconsidered 167 (C. Read ed. 1938); Charles G. Haines, The Revival of Natural Law Concepts 104–165 (1930). In Adamson v. California, 332 U.S. 46, 79 (1947), Justice Black said of an 1890 case that it “gave a new and hitherto undiscovered scope for the Court’s use of the due process clause to protect property rights under natural law concepts.”

[3.]Judicial review “should be confined to occasions when the statute or order was outside the grant of power to the grantee, and should not include a review of how the power has been exercised.” Learned Hand, The Bill of Rights 66 (1962); for confirmatory materials, see infra Chapter 16 at notes 20–26. Madison stated that none of the departments “ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.” Federalist No. 48 at 321. See infra note 5. “The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers.” Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 548 (1869).

[4.]Infra Chapter 16.

[5.]Article XXX provided that “the legislative department shall never exercise the executive and judicial powers . . . the executive shall never exercise the legislative and judicial powers . . . the judicial shall never exercise the legislative and executive powers.” 1 Poore 960. For the same utterance by Madison, see 1 Annals of Congress 435–436.

[6.]The “modern definition of ‘due process’ is merely the ‘natural justice’ . . . under a new name.” J. A. C. Grant, “The Natural Law Background of Due Process,” 31 Colum. L. Rev. 56, 65 (1931); Haines, supra note 2 at 305, 101, 103; Graham 239. Justice Black referred to the “ ‘natural law due process notion’ by which this Court frees itself from the limits of a written Constitution.” In re Winship, 397 U.S. 358, 381 (1970).

[7.]Madison stated, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” Federalist No. 48 at 321. One of the ablest of Justices, William Johnson, remarked on “the necessity of watching the advancement of judicial power, in common with all power.” Ramsay v. Allegre, 25 U.S. (12 Wheat.) 611, 616 (1827), concurring opinion. Justice Frankfurter commented that “Judicial power is not immune against this human weakness.” Trop v. Dulles, 356 U.S. 86, 119 (1958), dissenting opinion. See also infra Chapter 15 at note 37.

[8.]3 U.S. (3 Dall.) 386, 388 (1798).

[9.]Raoul Berger, Congress v. The Supreme Court 82–83 (1969).

[10.]3 U.S. at 398.

[11.]“The word natural is commonly taken in so many senses, and is of so loose a signification, that it seems vain to dispute whether justice be natural or not.” Quoted in Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 23 (1975).

[12.]3 U.S. at 398.

[13.]Herbert Muller, Uses of the Past 350 (1952).

[14.]Roscoe Pound, “Common Law and Legislation,” 21 Harv. L. Rev. 383, 393 (1908).

[15.]Cover, supra note 11 at 29. Cover comments that this “was never a part of the mainstream of American jurisprudence.” Id. John Adams and his compeers “used nature to take the measure of law [e.g. “fundamental rights” ] . . . but not as a source for rules of decision.” Id. 27. But see Haines, supra note 2 at 52–55. Morton Horwitz states that post-Revolution Americans regarded written constitutions as embodying the “ ‘will’ of the people,” and “tended to assert the ultimate primacy of the legislature and of statute law,” with the result “that the original natural law foundation of common law rules began to disintegrate.” There was a vigorous demand for codification because “ ‘the very nature of the constitution requires the judge to follow the letter of the law.’ ” “The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American History 287, 309–310 (1971). My reasons for concluding that the Founders clung to a “fixed Constitution,” to positive, not natural, law, are set forth infra Chapter 21 at note 88 to the end.

[16.]4 Elliot 543. In the Virginia Ratification Convention, Francis Corbin stated, “Liberty is secured, sir, by the limitation of its [the government’s] powers, which are clearly and unequivocally defined.” 3 Elliot 110. In the First Congress, James Jackson said: “we must confine ourselves to the powers described in the constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.” 1 Annals of Congress 489. See also infra Chapter 15 note 19. For additional citations to the Founders, see Berger, supra note 9 at 13–14.

[17.]10 U.S. (6 Cranch) 87, 135–136 (1810). This was echoed by Chancellor Kent in Gardner v. Newburgh, 2 Johns. Ch. 162, 166–167 (N.Y. 1816). But as Henry Steele Commager remarked, “the impressive thing is the paucity of such occasions in the first half a century of our history.” “Constitutional History and the Higher Law,” in The Constitution Reconsidered 225 (C. Read ed. 1938).

[18.]“John Marshall and the Judicial Function,” 69 Harv. L. Rev. 217, 225 (1955); see also infra Chapter 21 at notes 12–28.

[19.]See G. Edward White, The American Judicial Tradition 18, 26 (1976).

[20.]Berger, supra note 9 at 13–16.

[21.]National Ins. Co. v. Tidewater Co., 337 U.S. 582, 647 (1949), Frankfurter, dissenting opinion; see also Berger, supra note 9 at 260–264.

[22.]See infra Chapter 19 at note 16.

[23.]Entick v. Carrington, 19 How. St. Tr. 1029, 1065–1066 (1765).

[24.]John Marshall’s Defense of McCulloch v. Maryland 185, 182, 184 (G. Gunther ed. 1969), discussed infra Chapter 21 at notes 10–19.

[25.]17 F. Cas. (No. 9583) 332, 339 (C.C. D. Ohio, 1853).

[26.]Shaw stated, “an appeal to natural rights . . . was not pertinent! It was to be decided by the Constitution . . . and by the Law of Congress . . . These were to be obeyed, however disagreeable to our natural sympathies.” Account in The Liberator, Nov. 4, 1842, at 3, quoted in Cover, supra note 11 at 169. For Story see Cover, id. 171, 193. Still other cases were collected and analyzed by Cover, and he concludes that “The judiciary was superbly consistent in a wide variety of contexts in that positivist approach.” Id. 116.

Horwitz considers that “Story’s theory in the Commentaries is a pure will theory of law, anticipating the most advanced forms of modern, secular, amoral, legal positivism.” “The Conservative Tradition in the Writing of American Legal History,” 17 Am. J. Legal Hist. 275, 288 (1973).

[27.]Graham 117.

[28.]13 N.Y. 378 (1856).

[29.]Id. 430.

[30.]Justice Hubbard stated, “I am opposed to the judiciary . . . declaring a statute invalid upon any fanciful theory of higher law or first principles of natural rights outside the constitution.” Id. 453; see also id. 390–391, 476.

[31.]Edward Corwin, “The Decline of Due Process Before the Civil War,” 24 Harv. L. Rev. 460, 471 (1911). He stated that the court was “dismayed by the abolitionists quoting the same [natural rights] scripture to their purposes.” Id. Justice Comstock referred to the “great danger in attempting to define the limits” of legislative power, and said that “danger was less apparent” in Marshall’s time “than it is now, when theories, alleged to be founded in natural reason or inalienable rights but otherwise subversive of the just and necessary powers of government, attract the belief of considerable classes of men.” 13 N.Y. at 391.

[32.]“For instance, a law that any man who, after the age of fifty years, shall continue to live, shall be punished by imprisonment or fine would be beyond the power of the legislature. It would be so, upon the ground that he cannot be deprived of life, liberty, or property without due process of law.” 13 N.Y. at 420.

[33.]Corwin, supra note 31 at 474–475; Charles Warren, “The New ‘Liberty’ Under the Fourteenth Amendment,” 39 Harv. L. Rev. 431, 442–445 (1926). The Supreme Court dwelled on the procedural aspect of due process in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276–277 (1856). Although Dred Scott v. Sandford, 60 U.S (19 How.) 393 (1857), employed substantive due process for protection of property in a slave, over a vigorous dissent by Justice Curtis, that case outraged abolitionist opinion and was roundly condemned in the 39th Congress.

[34.]State v. Kieran, 5 R.I. 497, 506, 507 (1858) (emphasis added). Chief Justice Ames stated, “Surely, if any clause in the constitution has a definite meaning, which should exclude all vagaries which would render courts the tyrants of the constitution, this clause . . . can claim to have, both from its history and its long received interpretation. It is no vague declaration concerning the rights of property, which can be made to mean anything and everything; but an intensely practical, and somewhat minute provision, guarding the rights of persons accused of crime.” Id. 505. See also Charles Curtis, supra Chapter 11 at note 27.

[35.]Metropolitan Board of Excise v. Barrie, 34 N.Y. 657, 668 (1866).

[36.]Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1874). Following in the path of Iredell, Justice Clifford dissented: “Where the constitution of the State contains no prohibition upon the subject . . . neither the State nor Federal courts can declare a statute of the State void as unwise, unjust, or inexpedient . . . unless it be repugnant to the Constitution,” quoting Chief Justice Marshall: “The interest, wisdom, and justice of the representative body furnish the only security in a large class of cases not regulated by any constitutional provision [Bank v. Billings, 4 Peters 563].” 87 U.S. at 668–669.

[37.]Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 638 (1869), dissenting opinion. Compare Hamilton, infra Chapter 15 at note 43. “Justice Iredell’s scorn of natural law as a limitation on state legislative power might be applied equally well to due process. Since this concept provided no ‘fixed standard’ all the Court could properly say in raising it as a constitutional bar was that the legislature had passed an act that in the opinions of the judges was inconsistent with abstract principles of justice.” Mason and Beaney, supra note 1 at 412.

[38.]Haines, supra note 2 at 112; see also supra at notes 28–32. Professor Archibald Cox considers “the very persistence of such evocative, rather than sharply definitive, phrases, attests the strength of our natural law inheritance as authority for legal change.” The Role of the Supreme Court in American Government 113 (1976). He adds, “The Court’s persistent resort to notions of substantive due process for almost a century attests the strength of our natural law inheritance in constitutional adjudication.” Id. 113. To my mind it merely evidences unquenchable judicial thirst for extraconstitutional power, power that plainly was withheld. For recurrent criticism, see supra notes 6, 36, 37 and infra note 89; see also supra at notes 25–26; infra Chapter 21 at notes 60–63, 87–94. Cox himself has noted that the pre-1937 era “was marked by a vigorous reaction against natural law . . . There was a sense that the Justices made a mess of things when they attempted to enlarge their orbit.” Cox, id. 34. That era has been repudiated in the field of economic-substantive due process by the Court itself. Infra at notes 77–78. And proponents of “natural law” must explain why the Founders, who manifestly excluded the judiciary from policymaking, who distrusted judicial discretion, even denied its exercise, could leave the barn door wide to unlimited discretion under natural law.

[39.]Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 64 (1961); Wallace Mendelson, The Supreme Court: Law and Discretion 21 (1967). In 1917, a Negro leader “insisted on the powerful influence of Supreme Court decisions in snatching liberty from the hands of his race.” Phillip S. Paludan, A Covenant With Death 5 (1975). See also infra Chapter 17 at notes 67–69.

“For years,” Justice Douglas stated, “the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system.” Poe v. Ullman, 367 U.S. 497, 517 (1961), dissenting opinion. In Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), the Court itself referred to “our abandonment of the use of the ‘vague contours’ of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise . . . We refuse to sit as a ‘super-legislature to weigh the wisdom of legislation.’ ”

[40.]Supra Chapter 11 at note 2.

[41.]Curtis, supra Chapter 11 at note 27.

[42.]Griswold v. Connecticut, 381 U.S. 479, 520 (1965), dissenting opinion. Thereby the Court, as Robert G. McCloskey stated, was enabled “to invalidate any law that struck a majority of the members as ‘arbitrary’ or ‘capricious.’ Those wonderfully ambiguous definitions . . . permitted the judiciary to exercise or withhold [their judicial] veto in any given case, subject to no guiding principle except the judges’ own sense of discretion.” McCloskey, supra note 1 at 152.

[43.]Charles Fairman refers to “such obscurantist phrases as ‘the spirit of our free institutions’ [repudiated by Hamilton, infra Chapter 15 at note 46], ‘fundamental conceptions lying at the basis of our social compact.’ ” Mr. Justice Miller and the Supreme Court 1862–1890 3 (1939). It is a tribute to the power of ceaseless repetition that even a judge so critical of judicial activism as Justice Harlan should have stated: “the very breadth and generality of the Amendment’s provision suggest that its authors did not suppose that the nation would always be limited to mid-19th century conceptions of ‘liberty’ and ‘due process of law’ but that the increasing experience and evolving conscience of the American people would add new [meanings].” Duncan v. Louisiana, 391 U.S. 145, 174–175 (1968). I find some difficulty in reconciling this with his condemnation of the “reapportionment” decisions for arguably they responded to an “evolving conscience.” Compare infra Chapter 17 at note 62.

[44.]“The course of history,” he remarked, cast responsibilities upon the Court which it would be “stultification” to evade. Rochin v. California, 342 U.S. 165, 173 (1952). See also infra at note 141.

[45.]Frankfurter, supra note 18 at 228–229.

[46.]Arguments contrary to the application of due process to “matters of substantive law” had seemed “persuasive” to Justice Brandeis. Whitney v. California, 274 U.S. 357, 373 (1927), concurring opinion. Shortly thereafter, Justice Holmes stated, “Of course the words ‘due process of law,’ if taken in their literal meaning have no application to this case; and while it is too late to deny that they have been given a much more extended artificial signification . . .” Baldwin v. Missouri, 281 U.S. 586, 595 (1930). Like Brandeis, Judge Learned Hand “considered the whole concept of [substantive] due process a judicial fabrication.” Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 129 (1973).

[47.]Frankfurter justly stated that “a term gains technical content” by “the deposit of history”; “No changes or chances can alter the content of the verbal symbol of ‘jury.’ ” Rochin v. California, 342 U.S. at 169–170. Indisputably the “technical content” of “due process” was purely procedural, without a trace of “substantive” historical “content,” for which we need go no further than Hamilton. See also infra Chapter 21 at note 48.

[48.]Supra note 18 at 229.

[49.]New Republic (1926), quoted in Philip Kurland, Politics, the Constitution and the Warren Court xiv (1970).

[50.]Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 471 (1947), concurring opinion. But compare with Hamilton, infra Chapter 17 at note 15.

[51.]“The Search for Objectivity in Constitutional Law,” 57 Yale L.J. 571, 584–585 (1948). Among other things, given that a Justice “knows what he is looking for,” how does he “find it? By a Gallup poll? By editorials in leading newspapers . . . By the number of states which follow a given course?” Id. A Frankfurter disciple, Professor Louis Jaffe, stated, “There is no sure way to discover the conscience of the people . . . it is seldom that there is not a great contrariety of representative voices.” “Was Brandeis an Activist? The Search for Intermediate Premises,” 80 Harv. L. Rev. 986, 998 (1967). In fact, the Court “has demanded a number of social changes which do not command majoritarian support . . . [it] is now often declaring a rule that is unpopular.” Lusky 277.

[52.]Haley v. Ohio, 332 U.S. 596, 603 (1948), concurring opinion. This is squarely opposed to Hamilton’s assurance in Federalist No. 78. See infra Chapter 17 at note 15. Frankfurter also stated that a judge should “have antennae registering feeling and judgment beyond logical, let alone quantitative, proof.” Of Law and Men 39 (Philip Elman ed. 1956), introducing a psychic quality that is itself beyond measurement, and not a little resembles the Chinese emperor’s “mandate from heaven” of which he was the sole repository.

[53.]Furman v. Georgia, 408 U.S. 238 (1972). For a scathing critique of the decision, see Levy, Against the Law 389 et seq. In Gregg v. Georgia, 96 S. Ct. 2909, 2928 (1976), Justice Stewart acknowledged that “it is now evident that a large proportion of American society continues to regard [capital punishment] as an appropriate and necessary sanction,” pointing to legislative enactments in “at least 35 states” in the wake of Furman “that provide for the death penalty.”

[54.]Minersville School District v. Gobitis, 310 U.S. 586 (1940). Frankfurter utterly misconceived public opinion with respect to a compulsory flag salute in a public school. A. T. Mason, The Supreme Court: Palladium of Freedom 165 (1962). Even his close friend Harold Laski thought he was “wrong.” J. P. Lash, From the Diaries of Felix Frankfurter 69–70 (1975).

[55.]A. F. of L. v. American Sash Co., 335 U.S. 538, 556 (1949), concurring opinion. Experience has shown, said Professor Lusky, “that the Justices are not endowed with divine insight into the needs of a society.” Lusky 107.

[56.]Learned Hand, The Spirit of Liberty 14 (1952). [In the Chinese Exclusion Case, 130 U.S. 581, 600 (1889), the Court cited the Latin maxim leges posteriores priores contrarias abrogant: “Later laws abrogate prior laws that are contrary to them,” i.e., the last expression of the sovereign will control.]

[57.]Rochin v. California, 342 U.S. at 169. Dissenting from the majority’s condemnation of use of a stomach pump to obtain evidence of narcotic traffic, Justice Douglas, seeing that the outlawed practice “would be admissible in the majority of states where the question has been raised,” refused to hold that it violates the “ ‘decencies of civilized conduct’ when formulated by responsible courts with judges as sensitive as we are.” Id. 177–178.

[58.]Black was an “overpowering advocate” who believed that he “had a mission to impose his convictions on the nation,” Levy, Against the Law 36, a conviction shared by Chief Justice Warren and Justice Douglas. Lusky stated that Black “did his full share of judicial constitution-making, stoutly maintaining all the while that he was merely following directions set forth in the text of the Constitution and its Amendments . . . [finding] meanings . . . which none of his colleagues (or any one else) could find there.” Lusky 74. See also Kurland, supra note 49 at 4.

[59.]Griswold v. Connecticut, 381 U.S. at 511 note 4. He rang the changes on this view from Adamson v. California, 332 U.S. 46, 69 (1947), through Sniadach v. Family Finance Corp., 395 U.S. 337, 350, 351 (1969).

[60.]Rochin v. California, 342 U.S. at 176.

[61.]Id. 179; see supra note 57.

[62.]“Privacy in Connecticut,” 64 Mich. L. Rev. 283, 285, 287 (1965). Another Frankfurter disciple, Professor Louis Jaffe, wrote, “it must be admitted that the Frankfurterian formulation is somewhat deceptive . . . In a number of cases it is the essence of the problem that the public has been unable to clarify its conscience or formulate a position.” “The Court Debated—Another View” (1960), The New York Times Magazine, June 5, 1960, in Levy, Warren 199, 205. Justice Brennan also charged Frankfurter with subjective standards, unaware, as Leonard Levy stated, that his own “were no less imprecise . . . and subjective.” Levy, Against the Law 398.

[63.]See Braden, supra note 51 at 590–591; Mendelson, Supreme Court, supra note 39 at 25–26; Mendelson, Black and Frankfurter, supra note 39 at 69; Alexander Bickel, The Least Dangerous Branch 87–88 (1962).

[64.]Mendelson, Black and Frankfurter, id. 69; Braden, supra note 51 at 582–594.

[65.]Braden, id. 591, 593–594.

[66.]Kurland, supra note 49 at 180.

[67.]Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 747–748 (1964), dissenting opinion.

[68.]Harper v. Va. Board of Elections, 383 U.S. 663, 675–676 (1966), dissenting opinion (emphasis added).

[69.]In Oregon v. Mitchell, 400 U.S. 112, 124–125 (1970), Justice Black stated, “My Brother Harlan has persuasively demonstrated that the Framers . . . intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections . . . I agree as to the States’ power to regulate the elections of their own officials.”

[70.]“The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 699 note 108 (1960). Compare supra Chapter 7 at notes 47–53. Justice Frankfurter observed that “The Court is not saved from being oligarchic because it professes to act in the service of humane ends.” A. F. of L. v. American Sash Co., 335 U.S. at 555–556.

[71.]Baker v. Carr, 369 U.S. 186, 267 (1962), dissenting opinion.

[72.]Mendelson, Supreme Court, supra note 39 at 14.

[73.]Mendelson refers to the “ancient tradition of restraint which all American judges have professed—when their particular ‘preferred place’ values were not at stake.” Id. 13.

[74.]381 U.S. at 482; A. T. Mason, “The Burger Court in Historical Perspective,” 47 N.Y. State Bar J. 87, 89 (1975); cf. Justice White, infra note 121.

[75.]Mason, supra note 74 at 89.

[76.]381 U.S. at 484.

[77.]Dandridge v. Williams, 397 U.S. 471, 485 (1970); see supra note 39.

[78.]Ferguson v. Skrupa, 372 U.S. at 730.

[79.]“I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.” Baldwin v. Missouri, 281 U.S. 586, 595 (1930), dissenting opinion.

[80.]Lochner v. New York, 198 U.S. 45, 75 (1905), dissenting opinion.

[81.]Clark’s psychology was invoked by Chief Justice Warren in Brown v. Board of Education, 347 U.S. 483, 494 note 11 (1954).

[82.]Board of Education v. Barnette, 319 U.S. 624, 648 (1943), dissenting opinion.

[83.]Griswold v. Connecticut, 381 U.S. at 522, dissenting opinion.

[84.]2 John Locke, Treatise on Government, Chapter 2, quoted in J. R. Randall, The Making of the Modern Mind 343, 342 (1940).

[85.]1 Page Smith, John Adams 272 (1962). Anatole France made the point ironically: the poor are as free as the rich to sleep under a bridge. [ “For most men, to be deprived of . . . private property would be a far greater and more deeply felt loss of liberty than to be deprived of the right to speak freely.” Michael Oakeshott, Rationalism in Politics 44 (1962), quoted in James McClellan, Joseph Story and the American Constitution 236 (1971). Lynch v. Household Finance Corp., 405 U.S. 538 (1972): “. . . there is no real dichotomy between personal liberties and property rights.” ]

[86.]Mason, supra note 74 at 91.

[87.]1 Farrand 147. Justice William Paterson, a leading Framer, declared in 1795 that “The preservation of property, then, is the primary object of the social compact.” Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 309 (1795). Quoting Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765), the Supreme Court declared, “The great end for which men entered into society was to secure their property. That right is preserved sacred.” Boyd v. United States, 116 U.S. 616, 627 (1886).

[88.]Hand, supra note 3 at 50, 51. Commenting on the theory that “ ‘personal liberties’ deserve more stringent protection than ‘property rights’ because society should assign them greater value,” Archibald Cox justly observes that “The rationale merely asserts the conclusion.” “The New Dimensions of Constitutional Adjudication,” 51 Wash. L. Rev. 791, 797–798 (1976).

[89.]“What Mr. Justice Black has voted to do [in Adamson] is to abolish substantive due process in the economic field and preserve it in the field of civil liberties. This, however, represents a logical difficulty which is nearly insuperable. If substantive due process is a natural-law gloss in the economic field, it is just as much so in the field of civil liberties. There is no basis for rejecting the doctrine in the one case and adopting it in the other except the subjective preferences of the individual judge. History affords no justification for the choice made. Thus the judge who resorts to natural law to protect civil liberty is using the same techniques as the judges who resorted to natural law to protect economic liberty.” Stanley Morrison, “Does the Fourteenth Amendment Include the Bill of Rights?,” 2 Stan. L. Rev. 140, 167 (1949). Chief Justice Stone said as much in 1945, see infra at note 137. As late as 1956 the Court held that “as no constitutional guarantee enjoys preference, so none should suffer subordination.” Ullmann v. United States, 350 U.S. 422, 428 (1956). Professor Herbert Packer stated, “I find it extraordinarily difficult to draw a distinction between ‘economic’ legislation and legislation that affects ‘fundamental rights.’ ” “The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490, 493 (1971). See also Levy, Against the Law 239; Justices Black and Frankfurter, supra at notes 82 and 83.

[90.]Rodell, “The Crux of the Court Hullabaloo,” The New York Times Magazine, May 29, 1960, quoted in Levy, Warren 192, 195; Levy, id. 186; cf. Cox, supra note 88.

[91.]198 U.S. 45 (1905).

[92.]Morehead v. Tipaldo, 298 U.S. 587, 632 (1936), dissenting opinion. A revealing glimpse of the callousness of the class to which Lochner catered is afforded by the remark of Joseph Choate, the most eminent lawyer of his day, that he saw no reason why “a big husky Irish washerwoman should not work more than ten hours a day in a laundry if she and her employer so desired.” Quoted in Ernest Samuels, Henry Adams: The Major Phase 412 (1964).

[93.]165 U.S. 578 (1897); C. Warren, supra note 33 at 448. But Justice Holmes wrote, “The earlier decisions . . . began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract . . . It is merely an example of doing what you want to do, embodied in the word liberty.” Adkins v. Children’s Hospital, 261 U.S. 525, 568 (1923), dissenting opinion.

[94.]262 U.S. 390, 399 (1923).

[95.]“The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect ‘Life, Liberty and Property,’ ” 4 Harv. L. Rev. 365.

[96.]Supra note 33.

[97.]Shattuck, supra note 95 at 377; for Blackstone, see supra Chapter 2 at note 3.

[98.]Warren, supra note 33 at 440. [ “Prior to the Civil War American constitutional law and theory evince a quite surprising unconcern regarding ‘liberty’ . . . So far as the power of the states was involved, in brief liberty was the liberty which the ordinary law allowed and nothing more.” Edward S. Corwin, The Twilight of the Supreme Court 78 (1934) (emphasis in original).]

[99.]Prudential Ins. Co. v. Cheek, 259 U.S. 530, 538 (1922).

[100.]268 U.S. 652, 666 (1925).

[101.]Id. 672 (emphasis added). But compare supra note 93. [Justice Brandeis reported that “Holmes was against extending the Fourteenth Amendment. But that meant, Brandeis said, that ‘you are going to cut down freedom through striking down regulation of property, but not give protection’ (to freedom in other contexts).” Alexander Bickel, The Supreme Court and the Idea of Progress 27 (1978).]

[102.]Whitney v. California, 274 U.S. 357, 373, 375 (1927), concurring opinion.

[103.]“Can the Supreme Court Guarantee Toleration?” 43 New Republic 85, 87 (1925), quoted in Mendelson, Black and Frankfurter, supra note 39 at 54.

[104.]Supra note 24 at 190–191. “The criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital, 261 U.S. at 570, dissenting opinion.

[105.]Warren, supra note 33 at 441.

[106.]Id. 461. I have checked the constitutions of the original thirteen States and would add a qualification. Article XII of the 1776 Pennsylvania Constitution provided, “the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” A similar provision was contained in the 1786 Constitution of Vermont. 2 Poore 1542, 1869. The prohibition, however, is confined to the press. Most of the other States mention only free press.

[107.]Warren, supra note 33 at 434, 435; 1 Annals of Congress 435, 755.

[108.]September 11, 1804, quoted in Frankfurter, supra note 18 at 226; see also Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 22 (1971).

[109.]Palko v. Connecticut, 302 U.S. 319, 327 (1937).

[110.]Id. 325.

[111.]Duncan v. Louisiana, 391 U.S. 145, 153 note 20 (1968).

[112.]My search of the debates in the 39th Congress turned up two expressions (there may be others) respecting freedom of speech. Price remarked that “for the last thirty years a citizen of a free State dared not express his opinion on the subject of slavery in a slave State,” but at the same time he construed “privileges or immunities” to afford to a Northern visitor “the same protection” that a Southern State accorded to its own citizens. Globe 1066; see also the remarks of Broomall, id. 1263. Southern citizens, however, enjoyed no greater right to attack the sacred institution—the subject was taboo. Edmund Wilson, Patriotic Gore 4, 228, 365 (1962); Kenneth M. Stampp, The Peculiar Institution 211–212, 28 (1956). The free speech sought by Price, as in the case of other privileges, was that accorded by the States, provided that it was nondiscriminatory.

[113.]Paludan, supra note 39 at 263.

[114.]Warren, supra note 33 at 458–460.

[115.]302 U.S. at 324–325.

[116.]Id. 326, 325, quoted more fully supra at note 110.

[117.]See infra at note 139. “ [W]hether a particular right is denominated as ‘fundamental,’ ” Lusky comments, “depends upon a value judgment so broad” as to be unverifiable “by reference to any known standard.” Lusky 264. “ [T]here is no authoritative schedule of fundamental rights.” Jaffe, supra note 51 at 998.

[118.]Snyder v. Massachusetts, 291 U.S. 97, 114 (1934).

[119.]Lusky 107, 105; see also Jaffe, supra note 51 at 997.

[120.]The Court and the Constitution 80 (1951), quoted in Poe v. Ullman, 367 U.S. at 518–519, dissenting opinion. “Of course,” Roberts added, “. . . in this view, the due process clause of the Fifth Amendment . . . may be repetitious of many of the other guaranties of the first eight amendments and may render many of their provisions superfluous,” a result that argues against the “absorption” view.

[121.]Dissenting in Robinson v. California, 370 U.S. 660, 689 (1962), Justice White stated, “I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notion of ordered liberty. If this case involved economic regulation, the present Court’s allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon State legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.”

[122.]In re Winship, 397 U.S. 358, 381–382 (1970), dissenting opinion.

[123.]304 U.S. 144 (1938).

[124.]Lusky 108.

[125.]A. T. Mason, Harlan Fiske Stone: Pillar of the Law 513 (1956); Mason, The Supreme Court, supra note 54 at 151–159.

[126.]304 U.S. at 152–153 note 4.

[127.]Paul Murphy, The Constitution in Crisis Times, 1918–1969 at 182.

[128.]Mason, The Supreme Court, supra note 54 at 155. In his reply to Hughes, Stone stated that the footnote was a caveat, “without, however, committing the Court to any notion contained in it.” Id.

[129.]Lusky 109.

[130.]“The Court must take the responsibility for proclaiming its own superior fitness to attain the objective.” Lusky 112.

[131.]Infra Chapter 16.

[132.]Lusky 111–112.

[133.]Id. 19.

[134.]Braden, supra note 51 at 581.

[135.]Lusky 312.

[136.]Infra Chapter 15 note 1. Levy observes that to the eyes of “both the Court’s admirers and critics . . . the Justices seemed to consider themselves as movers and shakers of the country’s destiny rather than as impersonal spokesmen for the law.” Levy, Warren 5; cf. infra Chapter 17 note 55.

Professor Abram Chayes remarks that judicial action in the last two decades “adds up to a radical transformation of the role and function of the judiciary in American life . . . Its chief function now is as a catalyst of social change with judges acting as planners of large scale.” “The New Judiciary,” 28 Harv. L. Sch. Bull. 23, 24 (1976). To accomplish the reform, Archibald Cox states, the courts have been required “to formulate controversial programmes of affirmative action requiring detailed administration for protracted periods under constant judicial supervision.” Cox, supra note 38 at 77, a remarkable departure from the nay-saying role of the laissez faire Court. “The decrees thus directly regulate the lives of millions of people without a voice in the decision.” Id. 87. See infra Appendix B.

[137.]A. T. Mason, Security Through Freedom: American Political Thought and Practice 145–146 (1955). “Justice Stone was no rabid proponent of expanded judicial power.” Lusky 83. Justice Frankfurter was “vehemently opposed to the preferred freedom concept.” Mason, The Supreme Court, supra note 54 at 173. Judge Learned Hand likewise stated, “I do not think that the interests mentioned in the First Amendment are entitled in point of constitutional interpretation to a measure of protection different from other interests.” Hand, supra note 3 at 56. “As several of the Justices have noted in dissent, there is only a verbal difference between the ‘fundamental rights’ branch of the compelling governmental interest test and the now discredited due process of such cases as Lochner v. New York (1905). Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected.” Lusky 266.

[138.]Cox, supra note 38 at 50.

[139.]Hand, supra note 3 at 70; see also Justice Holmes, supra note 93.

[140.]Frankfurter, supra note 18 at 229, 231. In 1930, however, Professor Frankfurter wrote, “let us face the fact that five Justices of the Supreme Court are molders of policy, rather than impersonal vehicles of revealed truth.” “The Supreme Court and the Public,” 83 Forum 329, 334 (1930), quoted in A. T. Mason, “Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1397 (1962).

[141.]Richard Kluger, Simple Justice 681 (1976). Apparently this is based on a reconstruction of Justice Burton’s notes, id. 680. Compare with Frankfurter’s views supra at notes 49 and 72.

[142.]Poe v. Ullman, 367 U.S. at 540, dissenting opinion: “I believe that a statute, making it a criminal offense for married couples to use contraceptives” invades privacy “in the most intimate concerns of an individual’s personal life.” Id. 539.

[143.]“People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand.” Roosevelt and Frankfurter: Their Correspondence, 1928–1945 383 (M. Freedman ed. 1967). Shortly before Solicitor General Robert H. Jackson became a Justice he wrote, “This political role [ “continuous constitutional convention” ] of the Court has been obscure to laymen—even to most lawyers.” The Struggle for Judicial Supremacy xi (1941).

[144.]Miller and Howell, supra note 70 at 683.

[145.]Id.

[146.]Id. 676.

[147.]Id. 684; see also Levy, Against the Law 29, 30.

[148.]Levy id; Miller and Howell, supra note 70 at 689–693. “As dissenting Justices complain ever more often that the Court has revised rather than followed the Constitution, one’s readiness to discount their charges as disgruntled polemic becomes gradually less confident.” Lusky 75.

[149.]Graham 290 note 70, 291.

[1.]“The 15 years since [Warren] became Chief Justice have been years of legal revolution. In that time the Supreme Court has brought about more social change than most Congresses and most Presidents.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151. Justice Douglas complained that one decision entailed a “vast restructuring of American law.” Johnson v. Louisiana, 406 U.S 356, 394 (1972), dissenting opinion. Professor Lusky refers to “a revolutionary change in the criminal process.” Lusky 161. A. T. Mason, The Supreme Court: Palladium of Freedom 170 (1962): “On May 17, 1954, the Court initiated the greatest social revolution of this generation.” See also supra Chapter 14 note 136.

[2.]“Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703–705 (1975).

[3.]Id. 703.

[4.]Professor Frankfurter commented on Marshall’s “use of the commerce clause” to subject state authority “to such limitations as the Court finds it necessary to apply for the protection of the national community” as an “audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support of the Constitution. Indeed The Federalist in effect denied it.” The Commerce Clause Under Marshall, Taney and Waite 18–19 (1937). Had it been avowed it would have wrecked adoption of the Constitution. For the Founders’ jealous attachment to State sovereignty, see Raoul Berger, Congress v. The Supreme Court 260–264 (1969). That attachment was made explicit by the Tenth Amendment. That Marshall’s views have carried the day is of no moment in a discussion that seeks to build on first principles. See infra at note 15, infra at notes 29–30, 56–57.

[5.]I consider that Eugene V. Rostow failed to meet Henry Steele Commager’s attack on the antidemocratic administration of judicial review up to 1937. Rostow, “The Democratic Character of Judicial Review,” 56 Harv. L. Rev. 193 (1952); Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417 (1943). See infra Chapter 17 at note 69.

Leonard Levy finds the Rostow argument unconvincing and comments, it is “of comparatively recent vintage, raising the suspicion that the arguments have been concocted to rationalize a growing satisfaction with judicial review among liberal intellectuals and scholars.” Judicial Review and the Supreme Court 24 (Leonard Levy ed. 1967).

[6.]“Assessment of the Nixon Court’s craftsmanship is as subjective as the art of judging, and experts will doubtless disagree, as they have about the Warren Court’s craftsmanship.” Levy, Against the Law 438.

[7.]“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 949 (1973). Bruce M. Claggett suggests a “neutral principle,” the “intent of the framers which, where knowable, surely should be conclusive.” “Book Review,” 27 Harv. L. Sch. Bull. 3, 4 (1976).

[8.]A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661 (1960).

[9.]See infra Chapter 17 at notes 34–35, 62.

[10.]Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion.

[11.]Fred Rodell, “It Is the Warren Court,” The New York Times Magazine, March 13, 1966, in Levy, Warren 137, 142, 138–139. In both Brown v. Board of Education (desegregation) and Reynolds v. Sims (reapportionment), Rodell takes pleasure in recounting, “Warren was quite unworried that legislative history, dug from a library, might not support his reading.” Id. 142.

[12.]Levy, Warren 188.

[13.]E.g., “judicial decisions should be gauged by their results and not by . . . their coincidence with a set of allegedly consistent doctrinal principles.” Miller and Howell, supra note 8 at 690–691. Warren, said Paul Murphy, “had utilized the judiciary as a constructive policy-making instrument . . . Intent more upon social ends than upon legal subtleties and refinements, and candidly prepared to say so, he had pushed the nation, through his Court’s legal rulings, to take public actions that Congress was unprepared to recommend and the executive was incapable, unilaterally, of effectively securing.” Murphy, The Constitution in Crisis Times, 1918–1969 457 (1972). Apparently this meets with his approval, id. 466 et seq. He states that McCune (Nine Young Men 83 [1947]), praises the Black-Douglas-Murphy bloc because it “ ‘would seldom let red tape [!] stand in its way of arriving at an end it felt desirable.’ ” Id. 194.

[14.]Edmond Cahn, “Jurisprudence,” 30 N.Y.U.L. Rev. 150, 156–157 (1955). In the same way, Martin Shapiro assumed the existence of such power when he adverted to “Learned Hand’s eloquent plea for judicial abdication of most of the power of judicial review,” Law and Politics in the Supreme Court 24 (1964), when in fact Hand entertained grave doubts about its legitimacy and therefore would confine it to a narrow compass.

[15.]Lusky 79; see infra Chapter 17 at notes 15–22.

[16.]Although poles removed from Rodell’s uncritical subjectivity, Leonard Levy lends credibility to such views by his reference to “an antiquarian historicism that would freeze [the Constitution’s] original meaning . . . and was not intended to.” Levy, Judgments: Essays in American Constitutional History 17 (1972). The remarks of Jefferson and Madison plainly look the other way. See infra Chapter 20 at notes 5 and 18.

[17.]Supra Chapter 1 note 4; Berger, supra note 4 at 13–16.

[18.]Article XVIII, 1 Poore 959; New Hampshire (1784), Article 38, 2 Poore 1283; North Carolina (1776), Article XXI, 2 Poore 1410; Pennsylvania (1776), Article XIV, 2 Poore 1542; Vermont (1777), Article XVI, 2 Poore 1860.

[19.]“Discussion,” in Supreme Court and Supreme Law 75 (Edmond N. Cahn ed. 1954). James Iredell, who fought against great odds in North Carolina for adoption of the Constitution, stated, “The only real security of liberty . . . is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers.” 4 Elliot 130. In Virginia, Randolph said, “I hope that my countrymen will keep guard against every arrogation of power.” 3 Elliot 207. Iredell stated that “unlimited power . . . was not to be trusted without the most imminent danger, to any man or body of men on earth.” 2 G. J. McRee, Life and Correspondence of James Iredell 145–146 (1857–1858). See also Corbin, supra Chapter 14 note 16. The Supreme Court adverted to “Fear of unchecked power, so typical of our State and Federal Governments.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

[20.]Supra Chapter 14 at note 16.

[21.]Supra Chapter 14 at note 9.

[22.]Supra at note 11. Miller and Howell, supra note 8 at 683, label regard for the “intention of the framers” as a “filiopietistic notion.” Cf. Levy, Judgments supra note 16. Earlier McDougal and Lans gave vent to a string of spluttering expletives: “absolute artifacts of verbal archeology,” “strictly, a matter of concern only to rhetoricians,” “the idiosyncratic purposes of the Framers.” “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L.J. 181, 239 note 104, 291, 212 (1945). If laws were “scorned,” John Adams wrote, “in God’s name what is ever to be respected? What is there worth living for?” 2 Page Smith, John Adams 690 (1962).

[23.]In re Winship, 397 U.S. 358, 384 (1970), dissenting opinion. Chief Justice Waite declared in 1874 that “Our province is to decide what the law is, not to declare what it should be.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874). In Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820), Justice Story declared that the Court was “not at liberty to add one jot of power to the national government, beyond what the people have granted by the constitution,” dissenting opinion. For similar expressions by Chief Justice Marshall see infra Chapter 21 at notes 12–19.

[24.]Cardozo wrote that judges do not have “the right to ignore the mandate of a statute, and render judgment in despite of it.” Benjamin N. Cardozo, The Nature of the Judicial Process 129 (1921). It is said that when Holmes left the Massachusetts Court for the Supreme Court, “he was admonished to do justice. He responded thoughtfully that his job was merely to enforce the law.” Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 116 (1961). Holmes wrote, “I have said to my brethren many times that I hate justice, which means that I know that if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” The Mind and Faith of Justice Holmes 435 (M. Lerner ed. 1943). See also supra Chapter 14 at notes 37 and 103.

Writing of self-conscious judicial activism, Dean Acheson stated that a judge “may conscientiously be seeking to administer justice, but it is personal justice—the justice of Louis IX or Harun-al-Rashid—not that described on the lintel of the Supreme Court Building, ‘Equal Justice Under Law.’ ” Morning and Noon 69 (1965). Lusky suggests that some of the Court’s decisions may be inexplicable “except on the premise that the Justices consider themselves to be above the law —to be wholly unconstrained by pre-existing principle.” Lusky 101. Precisely this won praise from admirers of the Warren Court. Supra at note 11, and notes 11 and 13. See also Levy, supra Chapter 14 at note 136.

In defense of President Ford’s pardon of Richard Nixon, Assistant Secretary of Transportation Roger W. Hooker, Jr., stated, “I have never been entirely comfortable with the shibboleth [!] that ours is a nation of laws, not of men. It is true that for the most part it is and should be, but in times of extreme moral crisis throughout history, strong leadership has emerged to supersede the letter of the law and deliver us from the evils of vindictiveness.” Hooker, “A ‘Quiet, Undramatic’ Leader,” N. Y. Times, August 19, 1976, at 39. In short, Ford acted above the law to save us from an “extreme moral crisis”!

[25.]Miller and Howell, supra note 8 at 695.

[26.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

[27.]Massachusetts Constitution of 1780, Article XXX, 1 Poore 960, more fully quoted supra Chapter 14 note 5. The Framers made plain that the judiciary was not to exercise legislative power. Infra Chapter 16 at notes 8–12.

[28.]Documents of American History 65 (Henry Steele Commager ed. 7th ed. 1963).

[29.]“The colonials shared Bolingbroke’s belief in the fixity of the constitution.” Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, vol. 1, p. 89 (1971). “The principle that government must be conducted in conformity with the terms of the constitution became a fundamental political conception.” Id. 95.

In 1785 Madison stated that rulers “who overleap the great barrier which defends the rights of the people . . . are tyrants.” 2 James Madison, Writings of James Madison 185 (G. Hunt ed. 1900–1910). In the Connecticut Convention Oliver Ellsworth stated, Congress may not “overleap their limits.” 2 Elliot 196. For other citations see Berger, supra note 4 at 13–14.

[30.]Madison stated in the Convention that “it would be a novel and dangerous doctrine that a legislature could change the constitution under which it held its existence.” 2 Farrand 92. See infra Chapter 17 at notes 15–22.

[31.]8 Writings of Thomas Jefferson 247 (P. L. Ford ed. 1892–1899).

[32.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

[33.]Robert J. Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 8 (1971); see infra Chapter 17 at notes 34–35.

[34.]See infra Chapter 16 at notes 8–13.

[35.]“Letters of Camillus,” 6 Alexander Hamilton, Works of Hamilton 166 (H. C. Lodge ed. 1904). This was said of the President by the foremost advocate of a “strong” presidency. See also supra note 30.

[36.]Thurman Arnold, “Professor Hart’s Theology,” 73 Harv. L. Rev. 1298, 1311 (1960). [Speaking of the substitution “of the individual sense of justice,” Cardozo said, “That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921). See also id. 133, 152, 160.]

[37.]Quoted in Gertrude Himmelfarb, Victorian Minds 185 (1968).

[38.]Federalist No. 48 at 321, quoted more fully supra Chapter 14 note 7.

[39.]Trop v. Dulles, 356 U.S. 86, 119 (1958), dissenting opinion. Justice Black stated, “The history of governments proves that it is dangerous to freedom to repose such [law-making] powers in courts.” Katz v. United States, 389 U.S. 347, 374 (1967), dissenting opinion. See also supra Chapter 14 note 7, and John Dickinson, infra Chapter 16 at note 12.

[40.]Trop v. Dulles, 356 U.S. at 103.

[41.]“ [T]he choice was made by the Framers,” Justice Douglas declared, “a choice which sets a standard . . . The Framers made it a standard.” Rochin v. California, 342 U.S. 165, 178–179 (1952), concurring opinion. Justice Black stated that “when a ‘political theory’ embodied in our Constitution becomes outdated . . . a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional theory than the people of this country proceeding in the manner provided by Article V.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 678 (1966), dissenting opinion. Yet both Black and Douglas joined in the “reapportionment” decisions.

[42.]Article II, §1(8). Note John Adams’ insistence on “exact” observance of the “fundamental principles of the constitution,” supra at note 18, by which he surely included the text and the Framers’ explanations.

[43.]Federalist at 508; Berger, supra note 4 at 12–16.

[44.]Federalist No. 78 at 504.

[45.]Infra Chapter 16 at note 41.

[46.]Federalist No. 81 at 524.

[47.]Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Justice Douglas held that “specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees, that give them life and substance.” Webster, as A. T. Mason points out, “defines penumbra as a ‘marginal region or borderland of partial obscurity.’ ” “The Burger Court in Historical Perspective,” 47 N.Y. State Bar J. 87, 89 (1975). It is an odd conceit that “obscure borderland regions” lend “life and substance” to explicit guarantees. Nor does a region of “partial obscurity” offer the solid footing required for a novel intrusion into the relations of a State with its citizens that the Tenth Amendment protects.

[48.]Federalist No. 78 at 507. Justice Frankfurter explained that “The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process.” Board of Education v. Barnette, 319 U.S. 624, 650 (1943), dissenting opinion.

[49.]Lusky 72.

[50.]Federalist at 526–527. When I first considered this provision in 1969, it was in the context of the congressional power to make “exceptions” to the Supreme Court’s appellate jurisdiction, while arguing that that power could not have been designed to curb judicial “excesses,” citing Hamilton’s statement that the impeachment provision “is the only provision on the point which is consistent with the necessary independence of the judicial character.” Federalist No. 79 at 514. When I went on to quote James Wilson’s statement that judges were not to be “impeached, because they decide an act null and void, that was made in defiance of the Constitution,” Berger, supra note 4 at 290–291, I did not, because the point was not involved, draw the distinction between an exercise by the Court of its jurisdiction to police constitutional boundaries (infra Chapter 16 at notes 5–6, 26–27), which neither the impeachment nor the “exceptions” power can correct, and the usurpation of “legislative power,” which is an impeachable offense. The meaning of usurpation was made clear by Iredell: “If Congress, under pretense of executing one power, should in fact usurp another, they will violate the Constitution.” 4 Elliot 179. A congressional usurpation can be set aside by the Court; a judicial usurpation, as Hamilton stated, can be met by impeachment.

[51.]Raoul Berger, Impeachment: The Constitutional Problems 33, 39, 86 (1973). [Protesting against a congressional resolution that he had usurped power, President Andrew Jackson declared that the charge that “the President has usurped authority and power not conferred upon him by the Constitution and laws, and that in doing so he violated both . . . (such an act would constitute) a high crime—one of the highest indeed, which the President can commit—a crime which justly exposes him to impeachment by the House.” 3 James D. Richardson, comp., Messages and Papers of the Presidents 73 (1889–1905).]

[52.]Bickel, The Least Dangerous Branch 31 (1962).

[53.]“Those in power,” said Iredell, are “servants and agents of the people.” 4 Elliot 9. Archibald Maclaine stated in the North Carolina Convention that the people can “delegate power to agents.” Id. 161. See Hamilton, supra at note 35.

[54.]2 McRee, supra note 19 at 146. This was powerfully stated in the First Congress by Alexander White of Virginia: “This is a Government constituted for particular purposes only; and the powers granted to carry it into effect are specifically enumerated . . . If these powers are insufficient . . . it is not . . . within our power to remedy. The people who bestowed them must grant further powers . . . This was the ground on which the friends of the Government supported the Constitution . . . [otherwise] the Constitution would never have been ratified” in Virginia. 1 Annals of Congress 514–515.

[55.]Embarrassed by this incautious remark, Hughes explained that he was not picturing interpretation “as a matter of judicial caprice.” The Autobiographical Notes of Charles Evans Hughes 143 (D. J. Danielski and J. S. Tulchin eds. 1973). One need not charge Justices Field and Pierce Butler with “caprice”; it suffices that they sincerely identified their own predilections with constitutional dogma. Professor Frankfurter wrote to President Franklin Roosevelt that it is the Justices “who speak and not the Constitution.” Roosevelt and Frankfurter: Their Correspondence 1928–1945 383 (M. Freedman ed. 1967).

[56.]Eakin v. Raub, 12 S. & R. 330 (Pa. 1825), dissenting opinion. That view was expressed by Justice Holmes and quoted by Justice Brandeis in Erie Ry. Co. v. Tompkins, 304 U.S. 64, 79 (1938), when the doctrine of Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842), was branded “an unconstitutional assumption of power by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” [Acquiescence for no length of time can legalize a clear usurpation of power.” Thomas Cooley, A Treatise on the Constitutional Limitations 106 (8th ed. 1927).

There “can be no doubt that an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary.” Zweifon v. Mitchell, 516 F.2d 594, 616 (D. C. Cir. 1975). “No one acquires a vested or protected right in violation of the Constitution by long use.” Walz v. Tax Comm’n, 379 U.S. 664, 678 (1970). In constitutional questions, “when convinced of former error, this Court has never felt constrained to follow precedent.” Smith v. Allwright, 321 U.S. 619, 665 (1944).]

Justice Gibson’s opinion is often regarded as impugning judicial review in the federal courts; but Gibson was careful to distinguish between the Pennsylvania Constitution (of 1790, 2 Poore 1548), which contained neither a “supremacy clause” (Article VI, §2), nor an “arising under” clause (Article III, §2), and the federal Constitution, which does. 12 S. & R. at 345, 346, 347, 356, 357. Although Gibson spoke in the context of state powers and duties, federal judges too are “bound” only by “laws” of Congress that are “consistent with the Constitution.” Infra Chapter 19 at notes 18–21. Moreover, Gibson made no reference to expressions by the Founders in both the Federal and State Conventions that judicial review was contemplated, infra Chapter 19 at notes 25–28, presumably because they were not germane to the Pennsylvania Constitution under adjudication, and because they had not yet been published.

[57.]Chief Justice Burger “categorically” rejected the “thesis that what the Court said lately controls over the Constitution . . . By placing a premium on ‘recent cases’ rather than the language of the Constitution, the Court makes it dangerously simple for future Courts using the technique of interpretation to operate as a ‘continuing Constitutional Convention.’ ” Coleman v. Alabama, 399 U.S. 1, 22–23 (1970). Justice Douglas wrote, a judge “remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.” “Stare Decisis,” 49 Colum. L. Rev. 735, 736 (1949). Justice Frankfurter stated that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” Graves v. O’Keefe, 306 U.S. 466, 491–492 (1939), concurring opinion.

[58.]Jackson, The Struggle for Judicial Supremacy 322 (1941). And as Justice, one of the most gifted that served on the Court, Jackson “took the notion of a rule of law seriously,” G. E. White, The American Judicial Tradition 248 (1976); he deemed it inappropriate for judges “to seize the initiative in shaping the policy of the law.” And he “attacked the ‘cult of libertarian judicial activists’ on the Court whose attitude, he felt, ‘encourage[d] a belief that judges may be left to correct the results of public indifference to the issues of liberty.’ ” White, id. 246.

To “engage in result-oriented jurisprudence,” Leonard Levy wrote, is to leave “far behind the idea of the rule of law enforced by impersonal and impartial judges.” Levy, Against the Law 438. Wallace Mendelson stated, “we must begin again the unending struggle for the Rule of Law, for government by something more respectable than the will of those who for the moment hold high office.” The Supreme Court: Law and Discretion 40 (1967).

[59.]Arnold, supra note 36 at 1311.

[60.]Constitutionalism: Ancient and Modern 146 (rev. ed. 1947).

[61.]35 George Washington, Writings 228–229 (J. Fitzpatrick ed. 1940).

[62.]Federalist No. 25 at 158.

[1.]Benjamin F. Wright, The Growth of American Constitutional Law 18–20 (1942); see also A. T. Mason, The Supreme Court: Palladium of Freedom 67–70 (1962).

[2.]Griswold v. Connecticut, 381 U.S. 479, 514 note 6 (1965).

[3.]Flast v. Cohen, 392 U.S. 83, 107 (1968); Justice Frankfurter had cited it in Board of Education v. Barnette, 319 U.S. 624, 650 (1943): the Framers “denied such legislative powers to the federal judiciary [and] chose instead to insulate the judiciary from the legislative function.”

[4.]1 Farrand 21.

[5.]2 Farrand 78 (emphasis added).

[6.]2 id. 73 (emphasis added).

[7.]Id.

[8.]1 Farrand 97–98; 2 Farrand 75 (emphasis added). Wright stated, “Gerry is not alone in this, for the same point of view is expressed by almost every man who says anything at all on this subject in the Convention and in the ratification controversy.” “The judiciary,” Wright concluded, “would not be concerned with the policy, the reasonableness or arbitrariness, the wisdom of legislation.” Supra note 1 at 18, 244; see also id. 19–20.

[9.]2 Farrand 298.

[10.]1 Farrand 108; cf. id. 98.

[11.]2 Farrand 300.

[12.]Id. 299.

[13.]Mason, The Supreme Court, supra note 1 at 70, 94, 117; 1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 238 (1971).

[14.]Flast v. Cohen, 392 U.S. at 107. Through the due process clauses, A. T. Mason stated, the Court “became the final arbiter of public policy . . . the very authority the framers deliberately refused to confer under the proposed council of revision.” Mason, The Supreme Court, supra note 1 at 117. Yet Rodell could write that those who complain talk in “abstract phrases” — “judicial usurpation of legislative functions.” “The ‘Warren Court’ Stands Its Ground,” The New York Times Magazine, September 27, 1964, in Levy, Warren 208, 211.

[15.]Supra Chapter 14 at note 74.

[16.]Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 126 (1961).

[17.]Quoted in Mason, The Supreme Court, supra note 1 at 63: “Judicial review represents an attempt by American Democracy to cover its bet.”

[18.]Raoul Berger, Congress v. The Supreme Court 38–42, 29 (1969).

[19.]2 G. J. McRee, Life and Correspondence of James Iredell 145–146 (1857–1858).

[20.]2 Elliot 445.

[21.]Id. 196.

[22.]3 Elliot 553. For additional citations, see Berger, supra note 18 at 13–16.

[23.]Federalist No. 78 at 508. At another point he stated that the courts were an “excellent barrier to encroachments and oppressions of the representative body.” Id. 503.

[24.]1 Annals of Congress 438 (1789). “The Legislative powers,” Madison stated, “are vested in Congress, and are to be exercised by them uncontrolled by any of the Departments, except the Constitution has qualified it otherwise.” Id. 463.

[Story extolled the common law because it “controls the arbitrary discretion of judges, and puts the case beyond the reach of temporary feelings and prejudices.” James McClellan, Joseph Story and the American Constitution 98 (1971).

Madison stated in the Convention that “the collective interest and security were much more in the power belonging to the Executive than to the Judiciary department . . . in the adminstration of the former much greater latitude is left to opinion and discretion than in the administration of the latter.” 2 The Records of the Federal Convention of 1787 34 (Max Farrand ed. 1911).]

[25.]Letter to the Court, October 12, 1897, 168 U.S. 713, 717 (1897). Gouverneur Morris stated that it was the judicial function to reject a “direct violation of the Constitution.” 2 Farrand 299. The Court “gained its power as an agency trusted to establish and enforce constitutional limitations on the excessive use of governmental authority,” i.e., in excess of granted authority. Paul Murphy, The Constitution in Crisis Times, 1918–1969 154 (1972).

[26.]J. B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harv. L. Rev. 129, 135 (1893); Learned Hand, The Bill of Rights 66, 31 (1962). That control of executive discretion lies beyond the judicial function was held in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–170 (1803), and in Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515 (1840).

[27.]Cf. Murphy, supra note 25 at 154. Professor Kurland stated, “the Court would remain true to its function of preserving the original meaning of the Constitution if it were to act more aggressively to prevent the executive from overreaching his constitutionally limited function.” Politics, the Constitution and the Warren Court 17 (1970). “Throughout most of our history the form of the Supreme Court’s contributions to public policy was negative.” Archibald Cox, “The New Dimensions of Constitutional Adjudication,” 51 Wash. L. Rev. 791, 813 (1976).

[28.]“ [T]here were outrages in American life . . . no other arm of government was doing anything about them.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151, 159 (1968). See also Martin Shapiro, Law and Politics in the Supreme Court 247–248 (1964). In the words of Professor Lusky, the Court is “acting as a prime mover rather than a modulator of efforts at change initiated elsewhere . . . As a prime mover . . . it has demanded a number of changes which do not command majoritarian support.” Lusky 227. See also supra Chapter 14 note 136. For the transformation of the judicial function this has entailed, see Appendix B. See also infra Chapter 20 note 8.

[29.]“The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American History 287, 303 (1971).

[30.]Id. 296, 297, 298. Zephaniah Smith, Chief Justice of Connecticut, stated, “Judges have no power to frame laws—they can only expound them.” 1 Z. Smith, A System of Laws of the State of Connecticut 93–94 (1795–1796). Lord Mansfield’s reforming work “convinced Thomas Jefferson that a check need be established on the common law powers of judges.” Horwitz, supra note 29 at 310. This in the field of commercial, not constitutional, law.

[31.]Horwitz, id. 292. For additional materials illustrating the Founders’ aversion to judicial discretion, see Gordon Wood, The Creation of the American Republic 1776–1789 301–302 (1969). As one writer put it, if the judges “put such a construction on matters as they think most agreeable to the spirit and reason of the law . . . they assume what is in fact the prerogative of the legislature.” Wood, id. 302.

[32.]4 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 518 (Nottingham Soc. undated). Blackstone had written, “law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion.” 1 Blackstone, Commentaries on the Laws of England 62 (1765–1769). Wendell Phillips quoted Lord Camden: “The discretion of a Judge is the law of tyrants . . . In the best of times it is often times caprice—in the worst, it is every vice, folly and passion, to which human nature is liable.” Quoted in Robert Cover, Justice Accused: Antislavery and the Judicial Process 152 (1975).

[33.]Supra note 29 at 287.

[34.]Horwitz, supra note 29 at 309–326; Federalist No. 78 at 504, 510. Kent stated that without the common law, i.e., the precedents, “the courts would be left to a dangerous discretion to roam at large in the trackless field of their own imaginations.” 1 James Kent, Commentaries on American Law 373 (9th ed. 1858).

[35.]5 U.S. (1 Cranch) iii (1803). Cranch was a nephew of, and appointed by, President John Adams, and a classmate and esteemed friend of his cousin John Quincy Adams. Life in a New England Town: 1787, 1788. Diary of John Quincy Adams 21 note 2 (1903). Horwitz quotes an unpublished opinion on circuit by Justice William Johnson (1813) that to invite “judicial discretion” would “increase the oddity of the state of things” in that the judiciary “would be left at large to be governed by their own views on the Fitness of things.” Supra note 29 at 306–307.

[36.]Commonwealth v. Caton, published in 2 Letters and Papers of Edmund Pendleton 416, 422 (D. J. Mays ed. 1967).

[37.]For citations to Madison, Marshall, and Nicholas, see Berger, supra note 18 at 77, 140, 15.

[38.]Cf. id. 263.

[39.]Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798); Justice Chase said, “a very clear case.” Id. 395. Earlier, Iredell, rebutting criticism of judicial review by Richard Spaight (then a delegate to the Convention), had stressed that an Act “should be unconstitutional beyond dispute before it is pronounced such.” 2 McRee, supra note 19 at 175.

[40.]17 U.S. (4 Wheat.) 316, 402 (1819).

[41.]Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).

[42.]Benjamin N. Cardozo, The Nature of the Judicial Process 169–170 (1921). It is not merely an “ideal” but a requirement of the separation of powers, supra Chapter 15 at notes 27, 43–49. Marshall recognized judicial limits in his pseudonymous defense of M’Culloch v. Maryland, to meet stormy charges of judicial usurpation. See infra Chapter 21 at notes 12–19. Least of all can the judiciary say one thing and do another; it cannot afford conflicts between word and deed. Nor does Marshall’s disregard of constitutional bounds legitimate his displacement of the Framers’ “will” by his own.

[43.]Black, The People and the Court 160 (1960).

[44.]Osborn v. Bank, 22 U.S. at 866 (emphasis added).

[45.]The foregoing materials, to my mind, refute Bickel’s view that the Framers “certainly had no specific intent relating to the nature and range of the power” of judicial review. The Least Dangerous Branch 104 (1962).

[46.]National Ins Co. v. Tidewater Co., 337 U.S. 582, 647 (1949), dissenting opinion.

[1.]In the pre-1937 era, Archibald Cox states, “Historians and politicians were ‘proving’ that judicial review was a usurpation of power defeating the original intent. There was a sense that the justices made a mess of things when they attempted to enlarge their orbit, as they did in resisting government regulation of the economy.” The Role of the Supreme Court in American Government 34 (1976).

[2.]An unconscious example is Rodell’s statement in 1964: “Not since the Nine Old Men of unhallowed memory struck down the first New Deal almost 30 years ago . . . has any Supreme Court used its politico-legal power so broadly and boldly as did Earl Warren’s,” a performance that gave him joy, whereas the predecessors were “unhallowed.” Fred Rodell, “The Warren Court Stands Its Ground,” The New York Times Magazine, September 27, 1964, in Levy, Warren 208, 209.

[3.]“Privacy in Connecticut,” 64 Mich. L. Rev. 283–284 (1965).

[4.]See Ward Elliot, The Rise of a Guardian Democracy (1974).

[5.]Cox, supra note 1 at 35.

[6.]Writing in September 1976, Professor Joseph W. Bishop, Jr., stated, “Those who favor abortion, busing . . . and oppose capital punishment, call themselves and are generally regarded as liberals. But they obviously have no faith whatever in the wisdom or the will of the great majority of the people, who are opposed to them. They are doing everything possible to have these problems resolved by a small minority in the courts or the bureaucracy.” Bishop, “What is a Liberal—Who is a Conservative?,” 62 Commentary 47.

[7.]McDougal and Lans, “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L.J. 181, 577–578 (1945).

[8.]President Charles W. Eliot of Harvard University wrote, “I should like to be saved from loss of faith in democracy as I grow old and foolish.” Ernest A. Samuels, Henry Adams: The Major Phase 359 (1964).

[9.]Judicial Review and the Supreme Court 143 (Leonard Levy ed. 1967); Arthur S. Miller, “An Inquiry Into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of Separation of Powers,” 27 Ark. L. Rev. 584, 601 (1973).

[10.]Infra Chapter 20 at notes 28–39.

[11.]“The Role of the Constitutional Text,” in Supreme Court and Supreme Law 64, 68 (Edmond N. Cahn ed. 1954).

[12.]Willard Hurst, “Discussion,” in Supreme Court and Supreme Law, id. 75 (emphasis added). Hurst also disposed thereby of the citation to Holmes’ “The present has a right to govern itself.” Leonard Levy, Judgments: Essays in American Constitutional History 17 (1972). For Holmes’ views see infra Chapter 21 at notes 33–42.

[13.]Supra Chapter 15 at note 14.

[14.]McDougal and Lans, supra note 7 at 293. Chief Justice Burger stated, “however cumbersome or glacial, this is the procedure the Constitution contemplated.” Wheeler v. Montgomery, 397 U.S. 280, 284 (1970), dissenting opinion.

It is ironical that libertarians who argue for judicial “adaptation” of the Constitution because amendment is cumbersome should, like Eugene V. Rostow, state, “Given the possibility of constitutional amendment, there is nothing undemocratic in having responsible and independent judges act as important constitutional mediators.” “The Democratic Character of Judicial Review,” 66 Harv. L. Rev. 193, 197 (1952). Judges, in short, may alter the Constitution because resort to the people is onerous, but that very cumbersome process is recommended to the people to curb judicial infractions; cf. infra note 31.

[15.]Federalist No. 78 at 509. For a similar comment by Jefferson see infra at note 90. Compare this with Alexander Bickel’s view that “The Framers knew . . . that nothing but disaster could result for government under a written constitution if it were generally accepted that the specific intent of the framers of a constitutional provision is ascertainable and is forever and specifically binding, subject only to the cumbersome process of amendment.” The Least Dangerous Branch 106 (1962). See also Madison, 1 Annals of Congress 739. Elias Boudinot, erstwhile President of the Continental Congress, referred in the First Congress to “the great danger” in “modifying the principles of the Constitution.” We “may begin with the alpha and go to the omega, changing, reversing, and subverting every principle contained in it . . . [T]his never was the intention of our constituents; they never sent us here for the purpose of altering the system of Government; they reserved that power to themselves.” 1 Annals of Congress 530. See also Alexander White, supra Chapter 15 note 54.

[16.]“Book Review,” 27 Harv. L. Sch. Bull. 3, 4–5 (1976). See also supra Chapter 15 at note 61. For what consent meant to the Founders, see supra Chapter 15 at note 54.

[17.]3 Elliot 49.

[18.]4 Elliot 177.

[19.]2 Elliot 116. In the Virginia Convention, Judge Edmund Pendleton stated, “remote possible errors may be eradicated by the amendatory clause in the Constitution . . . the system itself points out an easy mode of removing errors which shall have been experienced.” 3 Elliot 303. This was a judge who had faced up to the issue of judicial review, supra Chapter 16 at note 36, and it speaks volumes that it never occurred to him that there might be an even easier judicial way of revision than the “easy mode” provided by Article V.

[20.]1 Annals of Congress 503 (1789).

[21.]See supra Chapter 12 note 11.

[22.]1 Annals of Congress 503 (1789); see Hamilton, supra Chapter 15 at note 50.

[23.]McDougal and Lans, supra note 7 at 215.

[24.]“The present use of history by the Court is a Marxist-type perversion of the relation between truth and utility. It assumes that history can be written to serve the interests of libertarian idealism. The whole process calls to mind the manipulation of scientific truth by the Soviet Government in the Lysenko controversy. The Court’s purposes may be more laudable . . . but the assumptions about the nature of reality are the same.” Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 157. Nevertheless Kelly applauded the decision in the desegregation case. Thomas Grey comments on the Court’s “resort to bad legislative history and strained reading of constitutional language to support results that would be better justified by explication of contemporary moral and political ideals not drawn from the constitutional text.” “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 706 (1975). See also Charles A. Miller, The Supreme Court and the Uses of History (1969).

[25.]“Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 3–4 (1971); see Grey, supra note 24.

[26.]Trop v. Dulles, 356 U.S. 86, 103 (1958).

[27.]Bork, supra note 25 at 4.

[28.]McDougal and Lans, supra note 7 at 291. Professor Lusky also prefers “misgovernment by law” to “enlightened government by decree.” Lusky 271. Hans Linde remarks that the “whole enterprise of constitutional law rests, after all, on the premise that the nation cares about its Constitution, not about its courts.” “Judges, Critics and the Realist Tradition,” 82 Yale L.J. 227, 256 (1972).

“In Professor [David] Truman’s terms, large numbers of, and perhaps most, Americans entertain certain expectations or values about the Court’s neutrality—values that have been called the ‘judicial myth’ [D. Truman, The Governmental Process 498 (1948)].” Martin Shapiro, Law and Politics in the Supreme Court 29 (1964). From childhood on the American expectation that the umpire will not espouse the cause of the opposing side is no “myth.” If judicial umpires alone are not impartial arbiters let that fact be made known. See infra Chapter 23 at notes 30–35.

[29.]Judicial idiosyncrasy finds ready illustration in Justice Douglas. For example, he joined in the decision in Williams v. Florida, 399 U.S. 78 (1970), holding that the phrase “trial by jury” did not require a jury of twelve. But he dissented when the Court held in Johnson v. Louisiana, 406 U.S. 356 (1972), that these words did not require a unanimous verdict, condemning “this radical departure from American traditions” — “two centuries of American history are shunted aside.” Id. 381, 383. For centuries both a 12-man jury and a unanimous verdict had been indissoluble components of trial by jury. See infra Chapter 22. Douglas weakly sought to distinguish the 12-man jury decisions because “neither evidence nor theory suggested the 12-man jury decision was more favorable to the accused than six.” Id. 382 note 1. On that analysis his appeal to history was superfluous. See also supra Chapter 14 at note 74.

[30.]Bickel, supra note 15 at 16. For a similar view, see Levy, Judgments, supra note 12 at 17. But compare Justice Holmes, infra note 32.

[31.]P. B. Kurland, Politics, the Constitution and the Warren Court 176–177 (1970); Raoul Berger, Congress v. The Supreme Court 207 (1969); Pollock v. Farmers Loan & Trust Co., 157 U.S. 429 (1895). Justice Brandeis stated, “In only two instances—the Eleventh and the Sixteenth Amendments—has the process of constitutional amendment been successfully resorted to, to nullify decisions of this Court.” Burnet v. Coronada Oil & Gas Co., 285 U.S. 393, 409 note 5 (1932), dissenting opinion.

[32.]Supra Chapter 16 at notes 30–35, 44. Even in the adjudication of common law cases, the norm was to leave “novel and unique” changes to the legislature, not “to replace a durable impersonal body of common law principles with intuitive individual notions of justice in a given case.” G. E. White, The American Judicial Tradition 277 (1976). Or, as Justice Holmes stated, “judges do and must legislate, but they can do so interstitially; they are confined from molar to molecular motions. A common law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it.” Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917), dissenting opinion.

[33.]Levy, Against the Law 260.

[33a.]Quoted in Morton J. Horwitz, The Transformation of American Law 125 (1977). This “transformation,” Horwitz justly concludes, “enabled emergent entreprenurial and commercial groups to win a disproportionate share of wealth and power in American society.” More crudely stated, the courts loaded the costs of an expanding industrial society on those least able to bear it— “forced subsidies to growth coerced from victims of the process.” Id. xvi.

[34.]“Professor Bickel, The Scholarly Tradition, and the Supreme Court,” 84 Harv. L. Rev. 769, 777, 784, 785 (1971). See also Hamilton, infra Chapter 21 at note 93; Linde, supra note 28 at 254; Justices Black and Douglas, supra Chapter 15 note 41; Cardozo, supra Chapter 15 note 24.

[35.]Wright, supra note 34 at 785; see supra at note 15.

[36.]Supra note 28 at 228–229.

[37.]White, supra note 32 at 193. Of the overruled decision, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), T. R. Powell said that 5 Justices invalidated the minimum wage law that 35 judges (including 4 Justices) held valid. Powell, Vagaries and Varieties in Constitutional Interpretation 40 (1956). Roberts, as Fred Rodell remarked, was “the perfect personification of the chanciness of government by judges. It was he who . . . changed his mind and his major votes three separate times . . . on the bed-rock issue of governmental power to regulate business; it was he who, by holding the decisive Court vote . . . was for years the most powerful person in the United States.” And he owed his appointment to the accident that Judge John Parker was turned down by the Senate. Rodell, Nine Men 221–222 (1955). Alexander Bickel observed that 5 to 4 opinions highlight “the fact that one man had the decision . . . It just makes unavoidable for everybody the awareness of the authoritarian nature of the institution, and of how narrowly that authority resides in one individual perhaps.” Hearings on the Supreme Court Before the Senate Subcomittee on the Separation of Powers 108, 90th Cong., 2d Sess. (June 1968).

[38.]R. H. Jackson, The Struggle for Judicial Supremacy 42 (1941). The overruled decision had been procured by Lincoln in the same fashion. He “confided that he chose Salmon Chase as Chief Justice . . . chiefly because ‘. . . we wish for a Chief Justice who will sustain what has been done in regard to . . . legal tenders.’ Chase had been Lincoln’s Secretary of the Treasury . . . and had supported the Legal Tender Acts.” Jackson, id. 32–33. Chase performed as expected and then came Grant’s turn.

In the same way, Richard Nixon selected men who would give effect to his desires. “That the Nixon Court favored law-enforcement values is no surprise. Burger, Blackmun, Powell and Rehnquist got their seats on the bench because of their supposed or known lack of sympathy for the rights of the criminally accused.” Levy, Against the Law 422. Dissenting in Boys Market v. Clerks’ Union, 398 U.S. 235, 256 (1970), from the discard of a 1962 precedent, Justice Black stated, “Nothing at all has changed, in fact, except the membership of the Court and the personal opinion of one Justice.” It has been said that American constitutional history may be viewed as a “series of minor courtpacking plans.” White, supra note 32 at 197.

[39.]Paul Murphy, The Constitution in Crisis Times, 1918-1969 309 (1972). “The Chief Justice [Vinson] found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Richard Kluger, Simple Justice 590, 589 (1976).

[40.]Cf. Cox, supra at note 5.

[41.]Fred Rodell, “It Is the Warren Court,” The New York Times Magazine, March 13, 1966, in Levy, Warren 136, 139. Rodell adds, “I tell this tale—and let him who can prove it wrong deny it—to illustrate the result-minded pragmatism and power of Earl Warren.” Id. After the first argument before Chief Justice Vinson, “Frankfurter . . . listed Clark—along with Vinson, Reed and Jackson—as probable dissenters if the Court had voted to overturn Plessy in the spring of 1953.” Kluger, supra note 39 at 612. Bickel, who had served as a law clerk to Justice Frankfurter when the desegregation case first was argued before the Vinson Court, stated, “there is reason to believe that had Chief Justice Vinson lived, something very different from the opinion read by Earl Warren . . . would have come down.” Alexander M. Bickel, “Is the Warren Court Too ‘Political?,’ ” The New York Times Magazine, September 25, 1966, in Levy, Warren 216, 217.

[42.]“Today [1964] the close civil liberties cases (as opposed, in legal parlance, to those involving Negroes’ civil rights), which used to come down predictably while Frankfurter sat, five to four against the liberty claimed, have for the past two terms come down just as predictably five to four the other way.” Fred Rodell, supra note 2 at 208, 211.

[43.]Murphy, supra note 39 at 428.

[44.]Such shifts, Justice Frankfurter stated, afford “fair ground for the belief that Law is the expression of chance . . . of unexpected changes in the Court’s composition and the contingencies in the choice of successors.” United States v. Rabinowitz, 339 U.S. 56, 86 (1950), dissenting opinion. Yet he regarded Vinson’s demise as providential. Supra Chapter 7 at note 47. To the same effect, Justice Black, supra note 38; Justice Stewart, Mitchell v. W. T. Grant Co., 416 U.S. 600, 636 (1974).

[45.]Brown v. Allen, 344 U.S. 443, 540 (1953), concurring opinion.

[46.]Levy, supra note 9 at 199–200; J. H. Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 944 (1973).

[47.]So too, Justice Holmes pointed out in Lochner v. New York, 198 U.S. 45, 75 (1905), that the majority was deciding the case “upon an economic theory which a large part of the country does not entertain,” dissenting opinion.

[48.]Furman v. Georgia, 408 U.S. 238 (1972); see supra Chapter 14 note 53.

Justice Black’s invocation to history in 1971 deserves notice: “These words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law . . . at the time the Constitution was adopted. It is inconceivable to me that the framers intended to end capital punishment by the [Eighth] Amendment.” McGautha v. California, 402 U.S. 183, 226 (1971), concurring opinion. See infra Chapter 21 note 39. The case for rejection of judicial policymaking and for a restricted judicial function is even stronger. Supra Chapter 16.

Like politics, adjudication makes strange bedfellows. Chief Justice Burger, dissenting in Furman v. Georgia, stated, “a punishment clearly permissible under the Constitution at the time of its adoption and accepted as such by every member of the Court until today, is suddenly so cruel as to be incompatible with the Eighth Amendment.” 408 U.S. at 381–382. And in Trop v. Dulles, 356 U.S. at 99, Chief Justice Warren stated that “the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”

[49.]In 1968, “a Gallup poll revealed that the majority believed that the Court was ‘too soft’ on criminals, protected their rights at the expense of society.” Levy, Against the Law 3. Richard Nixon rode into office in no small part because of his appeal to “law and order.” The “people think that the Court has contributed to the crime wave.” Kurland, supra note 31 at 95. Levy states that Congress regarded one such decision as “ ‘a harmful blow at the nationwide effort to control crime’ ” and enacted a countermeasure. Levy, Against the Law 252.

[50.]Professor Louis Jaffe stated it is overwhelmingly the case that “the ‘public conscience’ does not support the claim” of constitutional protection for “obscenity,” commenting that “the Legislatures, Federal and State, had openly and universally for upwards of 100 years seen fit to condemn obscenity.” “The Court Debated—Another View,” The New York Times Magazine, June 5, 1960, in Levy, Warren 199, 205; cf. Kurland, supra note 31 at 31, and J. W. Bishop, “The Warren Court Is Not Likely to be Overruled,” The New York Times Magazine, September 7, 1969, in Levy, Warren 93, 103.

[51.]Archibald Cox adds, “One wonders, too, whether the Supreme Court, in extending the protection of the First Amendment to sheer vulgarity, useful only in its ability to shock, does not give the vulgarities an imprimatur which contributes to the lowering of public discourse.” Cox, supra note 1 at 47–48.

[52.]Supra Chapter 15 at note 14.

[53.]Lewis M. Steel, “Nine Men in Black Who Think White,” The New York Times Magazine, October 13, 1968, in Levy, Warren 83, 91.

[54.]“A Time to Celebrate,” N.Y. Times, May 13, 1974, at 29. He added, “we seem unlikely to solve [the problems] soon, to the general satisfaction, in terms of either law or politics.” On October 16, 1976, Professor Charles Black stated, “To the victims of inequality, inequality is often perceived as a denial of liberty . . . The poor are indeed unfree . . . [But] reliance on the judiciary to correct this kind of unfreedom is tragically misplaced . . . [W]hat will be wanted, and indispensably needed, is that major shift of resources, and that systematic reorganization, which cannot succeed without very weighty action by the political branches. The most serious single mistake possible at this time would in my judgment be to write Congress off, and to try to tackle poverty by invoking the judicial power.” Address, “The Judicial Power as Guardian of Liberties,” before a symposium on “The Supreme Court and Constitutional Liberties in Modern America,” Wayne State University, Detroit, Mich.

[55.]Derrick Bell, “The Burden of Brown on Blacks: History Based on Observations on a Landmark Decision,” 7 N.C. Cent. L.J. 25, 26, 36 (1975). See also Thomas Sowell, “A Black ‘Conservative’ Dissents,” The New York Times Magazine, August 8, 1976, at 14. The issue of racial discrimination “has been fanned into the most protracted, rancorous, and divisive domestic blaze of the post-war era.” Chester E. Finn, Jr., “Book Review,” Commentary 78 (April 1976). Philip Kurland had written in 1970 that the segregation “cases demonstrate, I think, that rapid movement toward equality of the races is not attainable through the judicial process. The Court has moved faster than society is prepared to go.” Kurland, supra note 31 at 113.

[56.]Griswold v. Connecticut, 381 U.S. 479, 519 (1965). Levy numbers Black, Douglas, and Warren among the Justices who believed that “they have a mission to impose their convictions upon the nation,” to “mold its public policy,” Levy, Warren 110. “Earl Warren is the closest thing the United States has had to a Platonic Guardian, dispensing law from a throne without any sensed limits of power except what is seen [by him] as the good of society.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151, 161. Professor Louis Henkin stated, there is “a preference by some Justices for results which fit an image of the nation not projected by the Constitution and which the Justices cannot prove to be justified by history, need, the philosophy of the people, or anything better than the Justices’ faith or inclination.” Henkin, “Some Reflections on Current Constitutional Controversies,” 109 U. Pa. L. Rev. 637, 660 (1961).

[57.]For a powerful critique of the 6-man jury decision see Levy, Against the Law 259 et seq. My own studies have convinced me that the Founders unfailingly identified trial by jury with a jury of 12. See infra Chapter 22.

[58.]Federalist No. 25 at 158.

[59.]The New Yorker, April 28, 1973, at 32–34.

[60.]Levy, Warren 9.

[61.]Levy, Against the Law 438; cf. Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 192 (1973). An admirer of judicial policymaking averred that the Court “has ceased to be a student of law . . . It has become the crusading political philosopher of populism.” Shapiro, supra note 23 at 252.

[62.]Oregon v. Mitchell, 400 U.S. 112, 202–203 (1970) (emphasis added).

[63.]A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 689 (1960). Rostow, supra note 14 at 208. See also infra at note 81.

[64.]Wallace Mendelson, “Mr. Justice Frankfurter: Law and Choice,” 10 Vand. L. Rev. 333, 341 (1957).

[65.]Black: Jaffe, supra note 50 at 204–205; Frankfurter: “From the Wisdom of Felix Frankfurter,” 3 Wisdom 25 (1959), quoted in Griffith, supra note 61 at 209; Hand: The Bill of Rights 71 (1962); Patterson: Griffith, id. 88.

Miller and Howell, supra note 63 at 678, noted a “lack of consensus on the Court as to the appropriate role of the judiciary.”

[66.]Jackson, supra note 38 at x, 37; Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 J. Pub. Law 279, 292–293 (1957). The “Supreme Court, mainly during history, though not in recent decades, work[ed] as a buttress against the expansion of individual liberty and civil rights.” James McGregor Burns, “Dictatorship—Could It Happen Here?,” in Has the Court Too Much Power? 234, 236 (C. Roberts ed. 1974).

[67.]E. V. Rostow, “The Japanese-American Cases—A Disaster,” 54 Yale L.J. 489 (1945); Levy, supra note 9 at 20.

[68.]Levy, supra note 9 at 33–34. “Meanwhile,” Levy states, “millions of Negroes suffered lives of humiliation for five or more decades . . . because the Court betrayed the intent of the Reconstruction Amendments.” Id. 35.

[69.]Henry Steele Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417, 428 (1943). See also John Frank, “Review and Basic Liberties,” in Supreme Court and Supreme Law 109, 114 (Edmond N. Cahn ed. 1954).

[70.]Levy, supra note 9 at 23.

[71.]Levy, Against the Law, some aspects of which are discussed infra Chapter 18.

[72.]In 1942 I pointed out that the “reconstructed” Court was sanctifying the deplorable example of the “Four Horsemen” and that that stamp of approval might yet come back to haunt the libertarians. Raoul Berger, “Constructive Contempt: A Post-Mortem,” 9 U. Chi. L. Rev. 602, 604–605 (1942). For a similar expression, see Richard Goodwin, “The Shape of American Politics,” Commentary 25, 26–27 (June 1967), quoted in Kurland, supra note 31 at 18.

[73.]See supra at note 60.

[74.]Griffith, supra note 61 at 90; Hand, The Spirit of Liberty 203 (I. Dillard ed. 1952).

[75.]Graham 14, 102–103. For other justices with similar ties, see Fred Rodell, Nine Men 30–31(1955). Justice Samuel Miller wrote, “It is vain to contend with judges who have been at the bar the advocates for forty years of railroad companies . . . when they are called upon to decide cases where such interests are in contest.” Quoted in Charles Fairman, Mr. Justice Miller and the Supreme Court 374 (1939).

[76.]Levy, Judgments, supra note 12 at 98.

[77.]In 1920 W. H. Taft referred to “the new school of constitutional construction” led by Brandeis and Clarke, which tended to encourage “Socialist raids on property.” Taft, “Mr. Wilson and the Campaign,” 10 Yale Rev. (N.S.) 1 (October 1920), quoted in 1 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 347 note 1 (M. Howe ed. 1953).

[78.]A. T. Mason, The Supreme Court: Palladium of Freedom 122 (1962). Taft considered “Hand had proved his poor judgment in 1912, when he ‘turned out to be a wild Roosevelt man, a progressive.’ ” Id. See also White, supra note 32 at 179–180.

[79.]See supra Chapter 1 note 8.

[80.]Robert McCloskey, The American Supreme Court 165 (1960). Justice Field was convinced “that the salvation of democracy lay in a judicial trusteeship.” Graham 149.

[81.]Edmond Cahn, The Moral Decision: Right and Wrong in the Light of American Law 310, quoted in Griffith, supra note 61 at 158.

[82.]Hand, supra note 65 at 73; Gerry, supra Chapter 16 at note 8. Hand considered that the law “must be content to lag behind the best inspiration of its time until it feels behind it the weight of such general acceptance.” Supra note 74 at 15–16. See also supra at note 65. And always there is the question whether even “general acceptance” can dispense with amendment under Article V. See Hamilton, supra at note 15.

[83.]“It Is the Warren Court,” supra note 41 at 145.

[84.]Levy, Against the Law 44, 48.

[85.]“What Qualities for the Court?,” The New York Times Magazine, October 6, 1957, in Levy, Warren 114, 119. Writing of the Associate Justices, many of whom he knew personally, John Quincy Adams said, “Not one of them, except Story, has been a man of great ability. Several of them have been men of strong prejudices, warm passions, and contracted minds.” Quoted in Samuel F. Bemis, John Quincy Adams and the Union 406 note 79 (1956).

[86.]Judgments, supra note 12 at 105. He adds, “the politics of appointment . . . are surely not calculated to bring the ablest men to our supreme tribunal.” For a scathing critique of the run of appointments over the years, see Rodell, Nine Men. Robert G. McCloskey, a searching student of the Court, said that at any given time “You are not likely to find more than a handful who are capable of performing the rather awesome intellectual task that these ventures of [the Justices] involve. We have had on the Court in modern times, I would say offhand maybe three . . . Frankfurter, Jackson, and probably Harlan, but they in general, were swimming against the tide.” Hearings, supra note 37 at 109. Philip Kurland likewise testified that “the personnel of the Court is not up to the task that has been assigned to it.” Id. 149. Paul Freund, who as chief aide to the Solicitor General was in a position to observe the Court at close quarters, is quoted as saying that Justice George Sutherland “did not have a very ‘searching mind.’ McReynolds was a very ‘idiosyncratic’ man and was often ‘childish and peevish.’ ” Tim Cooper, “Freund: 40 Years of Supreme Court History Recalled.” 64 Harv. L.S. Rec. 1, 9 (1977).

[87.]Morris R. Cohen wrote to Frankfurter in January 1936, “you think in terms of Holmes, Brandeis and Cardozo, and you think more men of that type would make the Supreme Court a good institution. In this you ignore the fact that it is only by accident that men of that type can get on the Supreme Court and that when they do they are more likely to be on the minority side.” L. C. Rosenfield, Portrait of a Philosopher: Morris Raphael Cohen in Life and Letters 270 (1962), quoted in Joseph P. Lash, From the Diaries of Felix Frankfurter 55 (1975).

[88.]Hand, supra note 65 at 73.

[89.]“ [I]f the Supreme Court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war.” 1 Alexis de Tocqueville, Democracy in America 150 (1900).

[90.]Letter to Wilson Cary Nicholas, September 7, 1803, 8 The Writings of Thomas Jefferson 247 (P. L. Ford ed. 1897).

[91.]See infra Chapter 19 at note 42.

[1.]N.Y. Times, March 31, 1976, at 36; see also Nathan Lewin, “Avoiding the Supreme Court,” The New York Times Magazine, October 17, 1976, at 31.

[2.]Edward R. Korman, “Book Review,” 4 Hofstra L. Rev. 549, 556 (1976), refers to “the near hysterical response in certain quarters that accompanies every opinion of the ‘Nixon Court’ affirming the conviction of a murderer, rapist or robber.” Professor Louis Jaffe stated that judges “have been insensitive to the public’s need for a sense of security.” “Was Brandeis an Activist? The Search for Intermediate Premises,” 80 Harv. L. Rev. 986, 1002 (1967).

[3.]Cf. Stone v. Powell, 96 S. Ct. 3037 (1976), limiting the use of habeas corpus for review of state court convictions on the basis of illegally obtained evidence.

“Between 1937 and 1961 the Court’s constitutional rulings in criminal cases had rarely touched law enforcement and trial practices that were generally permitted by state law and were in widespread use.” Lusky 159. Justice Harlan, dissenting in Chapman v. Alabama, 386 U.S. 18, 46–47 (1967), stated, “I regard the Court’s assumption of what amounts to a general supervisory power over the trial of federal constitutional issues in state courts as a startling constitutional development that is wholly out of keeping with our federal system and completely unsupported by the Fourteenth Amendment where the source of such power must be found.” A swing of the pendulum was acknowledged by Justice Lewis F. Powell in an address on August 11, 1976, before the American Bar Association convention. The changes were due to a “ ‘leveling off’ in activism by the Court”; “a more traditional, and in my view, a sounder balance is evolving between the rights of accused persons and the right of a civilized society to have a criminal justice system that is effective as well as fair.” N.Y. Times, August 12, 1976, at 18.

[4.]Levy, Against the Law 422 (1974).

[5.]G. E. White, The American Judicial Tradition 197 (1976).

[6.]Lusky 161.

[7.]See supra Chapter 17 note 49. “The Court’s ‘coddling’ of criminals became a major issue in the 1968 elections; [after the election] new appointees were selected in part on their commitment to law enforcement and their hostility to ‘criminal forces.’ ” White, supra note 5 at 364–365.

[8.]Infra Chapter 22.

[9.]Supra Chapter 17 note 48.

[10.]Gregg v. Georgia, 96 S. Ct. 2909 (1976).

[11.]See infra Chapter 22.

[12.]“The New Dimensions of Constitutional Adjudication,” 51 Wash. L. Rev. 791, 803 (1976). Cf. Justice White, Roberts v. Louisiana, 96 S. Ct. 3001, 3020 (1976); see also Cox, The Role of the Supreme Court in American Government 34 (1976).

[13.]Levy, Warren 7, 9, 10. Why then criticize Justice Rehnquist’s approach as “that of an ideologue advocating the embodiment of his political choices in constitutional law”? Levy, Against the Law 58. And if “legal rules, legal precedents” and the like “do not decide cases” then Rodell was not “anti-intellectual” in dismissing the “look-it-up-in-the-library” intellectual. Supra Chapter 15 at notes 11–12.

Jefferson was lamenting that the Court had made of the Constitution “a thing of wax,” letter to Spencer Roane, September 6, 1819, 12 Works of Thomas Jefferson 135, 137 (Fed. ed. 1905). He had hoped that officials would be bound “from mischief by the chains of the Constitution.” See also infra Chapter 20 at note 6. So too, Learned Hand’s reference to words as “empty vessels” must be balanced against his confession of failure to understand the Court’s function as a “third legislative chamber” except as a coup de main. The Bill of Rights 55 (1962).

[14.]Levy, Against the Law 25.

[15.]Levy, Warren 186.

[16.]Levy, Against the Law 29–30. “Burger was quite accurate when he accused the Court of operating as a ‘continuing constitutional convention.’ It cannot operate in any other way.” Id. 230.

[17.]Levy, Warren 10, 20.

[18.]Supra Chapter 7 at notes 43–44, 54–55.

[19.]Levy, Against the Law 30–31.

[20.]Levy, Warren 186.

[21.]Levy, Against the Law 35.

[22.]Id. 438.

[23.]Id. 35.

[24.]Id. xiii.

[25.]Id. 289 (emphasis added).

[26.]So, too, affirmation that “inevitably . . . constitutional law is subjective,” supra at note 13, is incompatible with Levy’s statement that the Brennan-Marshall explanations “were like Band-Aids covering their very personal and humanitarian reading of present-day values,” Levy, Against the Law 398, as well they might do in “updating” the Constitution. For similar criticism see Robert H. Horn, “Book Review,” 88 Harv. L. Rev. 1924, 1925 (1975).

[27.]Levy, Against the Law 438–439. “His alarm arises more from the style, manners and rationale with which the decisions have been rendered than from the decisions themselves . . . he concentrates his detailed analytical criticism on the how instead of the what.” D. G. Stephenson, “Book Review,” 61 Va. L. Rev. 1338, 1341 (1975).

[28.]Levy, Against the Law 438.

[29.]Stephenson, supra note 27 at 1344, justly remarks, “ what the Court does has a greater and more lasting effect on its place in the political system than how it reaches its judgment.” One has only to compare the impact of the “desegregation case” with its inadequate reasoning. Levy, finding a decline in Justice Douglas’ analytical powers, remarks that “Douglas’s opinions provoked some of his liberal admirers to take the cynical position that if constitutional adjudication is basically result-oriented, Douglas voting for the ‘right’ side was better than any Nixon appointee voting the other way.” Levy, Against the Law 38. See Rodell, supra Chapter 15 at note 11, Chapter 17 note 41.

[30.]Levy, Against the Law 260, 423.

[31.]Id. 34.

[32.]Politics, the Constitution and the Warren Court 90 (1970). An ardent admirer of the Warren Court stated that “in a whole series of precedent-shattering decisions, the Court extended the protection of parts of the Bill of Rights well beyond old-established limits and set aside several past Court rulings to do so . . . [a] well-nigh unprecedented display of judicial power.” Fred Rodell, “The ‘Warren Court’ Stands Its Ground,” The New York Times Magazine, September 27, 1964, in Levy, Warren 209, 210.

[33.]Levy, Against the Law 28–29. Like Chief Justice Burger, Justices Douglas and Frankfurter claimed the right to look at the Constitution rather than what the Court had said about it. Supra Chapter 15 note 57.

Burger spoke in a “right to counsel” case, Coleman v. Alabama, 399 U.S. 1, 22 (1970), dissenting opinion. Levy notes that at the adoption of the Constitution, “the counsel clause . . . meant no more than the right to retain counsel of one’s choice at one’s own expense,” that it was only in 1938 that the Court held counsel must be supplied, and “that rule was not extended to state crime proceedings until 1963.” Levy, Against the Law 197. Similarly Levy complains that Kirby v. Illinois, 406 U.S. 682 (1972), “emasculated” United States v. Wade, 388 U.S. 218 (1967) (right to counsel at police lineup). Why should the Burger Court feel bound by a “precedent” first created only five years earlier? Levy notices that “Congress viewed Wade as a ‘harmful blow at the nation-wide effort to control crime.’ ” Levy, id. 252.

[34.]Consider Justice Brennan’s dissent in United States v. Ash, 413 U.S. 300, 326 (1973): “today’s decision marks simply another step towards the complete evisceration of the fundamental constitutional principles established by this Court only six years ago” (emphasis added).

Horn, supra note 26 at 1926–1927 comments, “In large part these decisions were less than a decade old when the Burger era opened. Professor Levy is entitled to regard them as ‘settled meanings of the Constitution’ (422) regardless of how greatly these Warren Court decisions unsettled what in some instances had been an apparently settled meaning since the Bill of Rights itself had been adopted,” i.e., for 150 years.

[35.]Livingston’s Executor v. Story, 36 U.S. (11 Pet.) 351, 400 (1837), dissenting opinion. See also Justice Jackson’s comment on judicial infallibility, supra Chapter 17 at note 45.

[36.]Levy, Warren 251.

[37.]“If there must be an answer, the most satisfying is the most equivocal or gingerly balanced, that of the mugwump caught in the classic stance with his mug on one side of the fence and his wump on the other.” Judicial Review and the Supreme Court 42 (Leonard Levy ed. 1967).

[38.]C. L. Black, The People and the Court (1960); Hugo Black and the Supreme Court: A Symposium, “Foreword” by C. L. Black (S. P. Strickland ed. 1967). As Levy observed, “the defense of judicial review has come mainly from those who have welcomed the trend of judicial decision in recent years and have rushed to the Court’s protection.” Supra note 37 at 24.

[39.]Address, “The Judicial Power as Guardian of Liberties,” before a symposium on “The Supreme Court and Constitutional Liberties in Modern America,” Wayne State University, Detroit, Mich., Oct. 16, 1976 hereinafter cited as Black, Wayne.

[40.]Id. 2.

[41.]Supra Chapter 1 at note 13.

[42.]The death-penalty “cases represented as definite an abandonment of the responsibility to justify a result by coherent reason as has ever occurred in the history of the Court.” Black, Wayne 4. He urges that the bar “never cease to call the Court to account, and to urge reason upon it,” id. 9, lest a “miasma of illegitimacy . . . hang about all judicial work.” Id. 10. Even more vital is it that the Court must act within the bounds of its authority for, as he states, it is “a prime political postulate that the government is not to travel outside its allocated sphere,” supra note 38 at 41, and that also goes for the judiciary.

[43.]Black, Wayne 7.

[44.]Black’s Yale colleagues, Alexander Bickel and Harry Wellington, wrote in 1957, “The Court’s product has shown an increasing incidence of the . . . formulation of results accompanied by little or no effort to support them in reason.” “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” 71 Harv. L. Rev. 1, 3 (1957). Dissenting Justices complained that the Warren majority failed to “confront complicated constitutional issues with professional expertise and consistency.” Levy, Warren 17. Kurland observed that “the defenders of the [Warren] Court do not tend to argue that the opinions are well reasoned.” Supra note 32 at 183. See also supra at note 28.

[45.]He considered protests against the “reasoning” in the Brown case as “wrong.” Black, Wayne 3. In other contexts he now bemoans his own silence, infra at note 51.

[46.]Black, Wayne 11.

[47.]Id. 2 (emphasis added). In 1959 he wrote that the case “was a debatable one.” Supra note 38 at 137. His Yale colleague, Bickel, wrote what Justice Frankfurter considered an “impressive” memorandum, and advised that “it is impossible to conclude that the 39th Congress intended that segregation be abolished.” Supra Chapter 7 at note 8.

[48.]Kluger 645.

[49.]Black, Wayne 3–4.

[50.]“My Brother Harlan has persuasively demonstrated that the Framers . . . intended to keep for themselves . . . the power to regulate elections . . . I agree as to the State’s power to regulate the elections of their own officials.” Oregon v. Mitchell, 400 U.S. 112, 124–125 (1970), concurring and dissenting in part.

[51.]Black, Wayne 8–9.

[52.]Id. 9.

[53.]Supra Chapter 1 epigraph.

[54.]Black, Wayne 4 (emphasis added).

[55.]Id. 2.

[56.]Supra Chapter 17 note 48.

[1.]“Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703 (1975).

[2.]“The Warren Court Is Not Likely to Be Overruled,” The New York Times Magazine, September 7, 1969, in Levy, Warren 93–94. See also E. V. Rostow, “The Democratic Character of Judicial Review,” 66 Harv. L. Rev. 193, 196 (1952). But see infra Chapter 21 at note 44.

[3.]Edmond Cahn, “Brief for the Supreme Court,” The New York Times Magazine, October 7, 1956, in Levy, Warren 28, 29; cf. Robert G. McCloskey, The American Supreme Court 17–18 (1960). But see infra Chapter 23 at note 2.

[4.]United States v. 1,629.6 Acres of Land, County of Sussex, Del., 503 F.2d 764, 767 (3d Cir. 1974); United States v. Oglesby, 163 F. Supp. 203, 204 (W.D. Ark. 1958); Blask v. Sowl, 309 F. Supp. 909, 914 (W.D. Wis. 1967).

[5.]M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). Hamilton stated that judicial “usurpations on the authority of the legislature” would be impeachable. Supra Chapter 15 at note 50.

[6.]304 U.S. 64, 77–78 (1938): referring to Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842), the Court held, “the unconstitutionality of the course pursued [by the courts] has now been made clear, and compels us” to “abandon” the “doctrine so widely applied throughout nearly a century.” For Justice Brandeis’ quotation from Justice Holmes, see supra Chapter 15 note 56.

[7.]Powell v. McCormack, 395 U.S. 486, 546–547 (1969): “That an unconstitutional action has been taken before surely does not render the same action any less unconstitutional at a later date.” See also Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 290 (1827).

[8.]Massachusetts Constitution, 1780, Part the First, Article XVIII, 1 Poore 959, quoted more fully supra Chapter 15 at note 18. See also supra Chapter 15 note 19.

[9.]Judicial Review and the Supreme Court 2 (1967); cf. McCloskey, supra note 3 at 8–9.

[9a.]See infra Chapter 23 at note 2.

[10.]Levy, supra note 9 at 3.

[11.]Id. 30–31. In the same essay, however, Levy earlier stated, “Long acquiescence by the people and their representatives has legitimated judicial review . . . Judicial review, in fact exists by the tacit consent of the governed.” Id. 12.

[12.]Quoted in full, supra Chapter 17 at note 15 (emphasis added).

[13.]Willard Hurst, “Discussion” in Supreme Court and Supreme Law 74 (E. Cahn ed. 1954). Learned Hand also adhered to amendment as the proper means of change. Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 83 (1973). Justice Black rang the changes on this theme, e.g., in Griswold v. Connecticut, 381 U.S. 479, 522 (1965).

The issue has generally been ignored by the instrumentalists. Yet it is central, for as Lusky asks, “does establishment of new constitutional rules by the Court offend Article V . . . which prescribes the amendment process? Does it outrage the principle of separation of powers? . . . In short, is the Court guilty of plain usurpation?” Lusky 79. Elbridge Gerry, as we have seen, regarded change outside Article V as a subversion of the Constitution and impeachable. Supra Chapter 17 at notes 20–22.

[14.]Federalist 507; Lusky 31–32.

[15.]Professor Felix Frankfurter wrote President Franklin Roosevelt, “People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course . . . it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand.” Roosevelt and Frankfurter: Their Correspondence 1928–1945 383 (M. Freedman ed. 1967). But as a Justice, sitting on the desegregation case, he could not bring himself to tell the people, as Justice Jackson urged, that the Justices were “declaring new law for a new day.” Supra Chapter 7 at notes 52, 55. See also supra Chapter 17 at notes 25–26.

[16.]Levy, supra note 9 at 2. After examining the arguments pro and con, Archibald Cox likewise concludes that the argument for judicial review “hardly adds up to conclusive proof that the basic charter, as originally adopted, conferred supremacy upon constitutional questions to the Judicial Branch.” The Role of the Supreme Court in American Government 16 (1976).

[17.]Levy, supra note 9 at 2.

[18.]Raoul Berger, Congress v. The Supreme Court 236–344 (1969).

[19.]To the Founders “in pursuance thereof” meant “consistent with.” Id. 228–236.

[20.]Id.

[21.]Quoted in id. 245 note 101.

[22.]Id. 198–284. Levy asserts that “Articles III and VI . . . established . . . judicial review . . . over the acts of the states, the subordinate agencies within the federal system, but not over the President and Congress.” Levy, supra note 9 at 7. But Article VI refers to “laws of the United States which shall be made in pursuance” of the Constitution; only congressional laws consistent with the Constitution are made the “supreme law of the land.” The companion argument—that only state judges are “bound” by the Constitution—would free every other official, state or federal, from constitutional bonds, an absurd result, and one incompatible with the Founders’ design. Berger, supra note 18 at 236–242. Levy’s inarticulate premise, that the Framers were more solicitous to protect Congress than the States from review, runs counter to historical fact. The Founders cherished the States as the bastion of their rights and feared the remote and new federal government; they sought to protect the States against federal incursions, and to do so initially confided judicial review to the State courts. Id. 258–278. They repeatedly referred to judicial review as a curb on congressional encroachments. Id. 13–14; Hamilton, supra Chapter 15 at note 50. See Hamilton, infra note 33.

[23.]Levy, supra note 9 at 3.

[24.]For a critique of Corwin’s 1913 review, see Berger, supra note 18 at 106–114. His reversion in 1937 to his 1913 view was colored by his espousal of the Court-packing plan as a means of halting the Court’s assault on the New Deal. For comment on some of his 1937 views, see Berger, id. at 114 note 312.

[25.]More fully quoted in Berger, id. 104–105.

[26.]Id. 69 note 109, 63.

[27.]Id. 105.

[28.]Id. 47–141.

[29.]Levy, supra note 9 at 5.

[30.]Id. 27–28.

[31.]2 Farrand 430.

[32.]Levy, supra note 9 at 4–6.

[33.]Berger, supra note 18 at 73. Following William Crosskey, Levy states this was “wrenched out of context to give the misleading impression that Madison supported judicial review over Congress,” whereas Madison referred “to the possibility that state judges would declare unconstitutional a state act in violation of the federal constitution.” Levy, supra note 9 at 4. But Levy himself calls attention to Hamilton’s explanation “that the Court’s power was intended to hold Congress in check, thereby safeguarding the States against national aggrandizement.” Levy, id. 6. The Founders were far more concerned about checking Congress than the States. Supra note 22. See also Madison’s statement that the Bill of Rights, aimed at Congress, would enable the courts to act as a bulwark. Infra Chapter 21 at note 65.

[34.]Berger, supra note 18 at 15–16.

[35.]Id. 74.

[36.]Id.; see also Index s.v. “Expounding.”

[37.]Levy, supra note 9 at 6; but see Hamilton, supra note 33.

[38.]1 Farrand 291, 28; Berger, supra note 18 at 19 note 53.

[39.]Levy, supra note 9 at 6. For Yates see Berger, supra note 18 at 201–202. Yates had been anticipated by James Iredell, an advocate of the Constitution and judicial review, in a reply to Richard Spaight, who had written him from the Convention. Berger, id. 82–83.

Levy also argues, supra note 9 at 7, that Hamilton argued in Federalist No. 78 “from general principles” rather than from the words of the Framers. Since he was defending their handiwork, he had to appeal to outside authority—the argument from principle.

[40.]Levy, supra note 9 at 6.

[41.]Laurent Frantz observed of a similar argument, “the issue is not what Madison really thought but how the First Amendment was presented to those who voted for its enactment.” “Is the First Amendment Law?—A Reply to Professor Mendelson,” 51 Calif. L. Rev. 729, 739 (1963).

[42.]Berger, supra note 18 at 120.

[43.]Id. 112–113.

[44.]Levy, supra note 9 at 8.

[45.]Berger, supra note 18 at 38–39.

[46.]Charles Evans Hughes said of the colonists’ reliance on Magna Charta, “It matters not whether they were accurate in their understanding of the Great Charter, for the point is . . . what the colonists thought it meant” in framing their own constitutional provisions. C. E. Hughes, The Supreme Court of the United States 186 (1928).

[47.]Levy, supra note 9 at 11.

[48.]The Creation of the American Republic 1776–1787 389, 524, 555, 564, 589 (1969); the changes proceeded at a rapidly accelerating pace, id. 92, 259, 300, 318.

[49.]Id. 344–389.

[50.]Berger, supra note 18 at 46.

[51.]Id. 150–151.

[1.]Myres McDougal and Asher Lans, “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L.J. 181, 212, 214, 291 (1945).

[2.]Leonard Levy, Judgments: Essays in American Constitutional History 17 (1972).

[3.]A. S. Miller, “An Inquiry Into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of the Separation of Powers,” 27 Ark. L. Rev. 584, 595 (1973). The Constitution was “not intended to” “freeze its original meaning.” Levy, supra note 2. Professor Miller might have cited Edward Corwin, who, in 1925, dismissed “speculative ideas about what the framers of the constitution . . . intended it should mean” because “the main business of constitutional interpretation . . . is to keep the constitution adjusted to the advancing needs of time.” American Constitutional History 108 (Mason and Garvey eds. 1964).

[4.]1 Story, Commentaries on the Constitution of the United States §426 at 325–326 (5th ed. 1905). “It is not the function of the courts or legislative bodies . . . to alter the method [for change] which the Constitution has fixed.” Hawke v. Smith, 253 U.S. 221, 227 (1920). See also supra Chapter 17 at notes 15–22.

[5.]Supra Chapter 1 note 7; see infra note 38.

[6.]See supra Chapter 17 at note 90.

[7.]Miller, supra note 3 at 595–596.

[8.]“ [S]ince the mid-1950’s the Supreme Court also has become the principal agent of change within our political order. Tackling political issues that the ‘political’ branches could not, would not, or dared not touch, the Court assumed the responsibility for political innovation, forcing changes long blocked by a Congress or by state legislatures dominated by minority elements.” Rondel G. Downing, “Judicial Ethics and the Political Role of the Courts,” 35 L. & Contemp. Prob. 94, 102 (1970). See also supra Chapter 16 note 28.

[9.]Supra Chapter 16 at note 34 (emphasis added). This conception was deeply rooted in the common law. Chief Justice Fortescue, Corwin tells us, was guided by maxims which “constituted the very substance of the peculiar science of the judges”; and Coke paid reverence to such “fundamental points of the common law,” among them, borrowed from Coke by “early American judges and lawyers,” are “the numerous rules for the construction of written instruments which were originally adapted from the same sources to the business of constitutional construction.” E. S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” 42 Harv. L. Rev. 149, 365, 370, 371 (1928).

[10.]Jefferson expressed confidence in the judiciary if “kept strictly to their own department.” 5 The Writings of Thomas Jefferson 81 (P. L. Ford ed. 1892–1899).

[11.]1 Story, supra note 4, §400 at 305. The object of such standards is to avoid “the passions and prejudices of the day.” Id.

[12.]Matthew Bacon, A New Abridgment of the Laws of England, “Statute” I (5) (1736). Citations herein are to the 3d ed. 1768. Justice Story stated that “Bacon’s Abridg. title Statute I contains an excellent summary of the rules for construing statutes.” 1 Story §400 at 305 note 2.

[13.]Institutes of Natural Law (1754–1756).

[14.]Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 12 (1975). Some of Rutherforth’s criteria are quoted in 1 Story §402.

[15.]2 Rutherforth, supra note 13 at 307, 309. Story likewise stated, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties.” 1 Story §400.

[16.]2 Rutherforth, supra note 13 at 364.

[17.]1 The Works of James Wilson 75 (McCloskey ed. 1967).

[18.]4 Elliot 446.

[19.]Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824). See also infra note 39.

[20.]Eisner v. Macomber, 252 U.S. 189, 220 (1920), dissenting opinion.

[21.]Supra Chapter 17 at note 9. McDougal and Lans, supra note 1 at 545: the “dead cannot bind the living.”

[22.]Louis Pollak, “The Supreme Court Under Fire,” 6 J. Pub. L. 428, 441 (1957). “ [A]ll questions of constitutional construction,” Justice Horace Gray stated, are “largely a historical question.” Sparf v. United States, 156 U.S. 51, 169 (1895), dissenting opinion. Bickel brushed aside “the proposition that the original understanding is simply not relevant. For arguments based on that understanding . . . have been relied on by judges well aware that it is a constitution they were expounding.” Alexander M. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv. L Rev. 1, 3–4 (1955).

[23.]Bell v. Maryland, 378 U.S. 226 (1964). Black: “changes in the Constitution . . . are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court.” Id. 342, dissenting opinion; Goldberg, id. 288, concurring opinion.

[24.]332 U.S. 46, 63–64, 72–73 (1947). For Frankfurter, see also supra Chapter 14 note 44.

[25.]John Wofford, “The Blinding Light: The Uses of History in Constitutional Interpretation,” 31 U. Chi. L. Rev. 502, 504–506 (1964). The intentions of the Framers “are clothed in mystery.” Miller, supra note 3 at 596. Miller goes further: “even if that history is clear, it is really not relevant.” Id. 598. Compare with Bickel, supra note 22, and with Miller and Howell supra Chapter 1 note 25.

[26.]Bacon’s Abridgment, “Statute” I (5): “A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within the letter.” The principle has often been applied by the Supreme Court. See supra Chapter 1 note 24.

[27.]Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908); quoted in Keifer & Keifer v. R.F.C., 306 U.S. 381, 391 note 4 (1939).

[28.]“The Role of the Constitutional Text” in Supreme Court and Supreme Law 64, 68 (Edmond N. Cahn ed. 1954).

[29.]Paul A. Freund, “Discussion,” in id. 71.

[30.]Curtis, id. 68–70.

[31.]C. P. Curtis, “A Better Theory of Legal Interpretation,” 3 Vand. L. Rev. 407, 423 (1950).

[32.]Willard Hurst, “Discussion,” in Supreme Court and Supreme Law 74 (Edmond N. Cahn ed. 1954).

[33.]Supra Chapter 17 at note 59.

[34.]Levy, supra note 2 at 71 (emphasis added).

[35.]Infra Chapter 21 at notes 38–42.

[36.]Wofford, supra note 25 at 523.

[37.]Supra at note 15 (emphasis added).

[38.]Paul Brest states, “suppose that the Constitution provided that some acts were to be performed ‘bi-weekly.’ At the time of the framing of the Constitution, this meant only ‘once every two weeks’; but modern dictionaries, bowing to pervasive misuse, now report ‘twice a week’ (i.e., semi-weekly) as an acceptable definition. To construe the definition now to mean ‘semi-weekly’ would certainly be a change of meaning (and an improper one at that).” Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 146 note 38 (1975).

That has been the accepted view: “The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now . . . ‘Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.’ ” South Carolina v. United States, 199 U.S. 437, 448, 449 (1905). See also Hawke v. Smith, 253 U.S. at 227. On the opposite view constitutional limitations are writ on water.

[39.]W. Hurst, “The Process of Constitutional Construction,” in Supreme Court and Supreme Law 55, 57 (Edmond N. Cahn ed. 1954). From the beginning the courts looked to the common law for the meaning of constitutional terms. Chief Justice Marshall declared with respect to the word “treason,” “It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning.” United States v. Burr, 25 F. Cas. (No. 14,693) 55, 159 (C.C. Va. 1807). See also Ex parte Grossman, 267 U.S. 87, 108–109 (1925); United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898). In the Convention, John Dickinson cited Blackstone to show that ex post facto means retroactivity in criminal cases. 2 Farrand 448. See also supra Chapter 11 note 5; infra Chapter 22 notes 6 and 42.

[40.]Vaughan Hawkins, “On the Principles of Legal Interpretation, With Reference Especially to the Interpretation of Wills,” 2 Jur. Socy. Papers 298 (1860): in the interpretation of written language . . . the object is a single one—to ascertain the meaning or intention of the writer—to discover what were the ideas existing in his mind, which he desired and endeavored to convey to us . . . we desire . . . to know what the writer meant by the language he used. Quoted in Curtis, supra note 31 at 407.

[41.]Globe 677.

[1.]The “doctrine of the living Constitution amounts to little more than willful disregard of the express or implied intent of the framers.” James McClellan, Joseph Story and the American Constitution 116–117 (1971). Thomas Grey more diplomatically states that “Our characteristic contemporary metaphor is ‘the living Constitution’ . . . sufficiently unspecific to permit the judiciary to elucidate the development and change in the content of those rights over time.” “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 711 (1975).

[2.]Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. C. Rev. 1 , 75; cf. Louis Pollak, “The Supreme Court Under Fire,” 6 J. Pub. L. 428, 441 (1957).

[3.]Frankfurter, “John Marshall, and the Judicial Function,” 69 Harv. L. Rev. 217, 218–219 (1955). That utterance, Frankfurter said, requires “a spacious view in applying an instrument of government ‘made for an undefined and expanding future.’ ” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596 (1952). Compare the severely restricted gloss Marshall put upon his words, infra at notes 12–18. And compare the Founders’ views as to change by amendment. Supra Chapter 17 at notes 15–22.

[4.]“It is important,” said Justice Frankfurter, “not to make untouchable dogmas of the fallible reasoning of even our greatest judge.” Frankfurter, supra note 3 at 219.

[5.]Many are the instances in which the Framers did place an interpretation upon their words, or used words of known common law meaning. To phrase the issue in terms of what meaning they “ would have placed upon them” beclouds it.

[6.]Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 442, 443 (1934). Small as is my esteem of Justice Sutherland, I consider nevertheless that his dissent has a firmer historical base. My friends inquire whether I am not troubled to find myself in such company. Edmund Wilson called this “the ‘bed-fellow’ line of argument, which relies on producing the illusion of having put you irremediably in the wrong by associating you with some odious person who holds a similar opinion.” Edmund Wilson, Europe Without a Baedeker 154 (1966). To which I would add, “I would rather be right with my enemy than wrong with my friend.”

[7.]Bell v. Maryland, 378 U.S. 226, 342 (1964); cf. supra Chapter 15 at note 61; Chapter 17 at notes 15–22.

[8.]Stockdale v. Hansard, 112 E. R. 1112, 1171 (Q. B. 1839).

[9.]See Raoul Berger, Executive Privilege: A Constitutional Myth 75–88 (1974), for citations.

[10.]17 U.S. (4 Wheat.) 316, 407, 408, 415 (1819) (emphasis added).

[11.]H. C. Hockett, The Constitutional History of the United States 1826–1876 4 (1939); see supra Chapter 15 at note 61; Chapter 17 at notes 15–22; for the explanation of Madison’s anxiety see infra at note 20 and note 22.

[12.]John Marshall’s Defense of McCulloch v. Maryland 185 (G. Gunther ed. 1969) (emphasis added).

[13.]Id. 182.

[14.]Id. 184.

[15.]Id. 92.

[16.]Id. 97.

[17.]Id. 173.

[18.]Id. 209 (emphasis added).

[19.]Commenting on the impact of that Defense, Professor Gunther observes that “If virtually unlimited congressional [or judicial] discretion is required to meet twentieth century needs, candid argument to that effect, rather than ritual invoking of Marshall’s authority, would seem to me more clearly in accord with the Chief Justice’s stance.” Supra note 12 at 20–21.

[20.]2 Farrand 321, 325, 615–616.

[21.]Pollak, supra note 2 at 441 note 87.

[22.]Supra note 10 at 401. In the February 1791 debate Madison “well recollected that a power to grant charters of incorporation had been proposed in the General Convention and rejected.” 2 Annals of Congress 1896 (1791).

[23.]25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion.

[24.]22 U.S. (9 Wheat.) 1, 190 (1824); see supra Chapter 20 note 38; infra Chapter 22 note 6.

[25.]22 U.S. (9 Wheat.) 738, 866 (1824).

[26.]29 U.S. (4 Pet.) 514, 563 (1830).

[27.]H. Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States 100 (1837).

[28.]See supra note 19.

[29.]252 U.S. 416, 433 (1920).

[30.]Marshall dismissed his own dicta in Marbury v. Madison when they were pressed upon him in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821), saying that dicta do not receive the careful consideration accorded to the “question actually before the court.”

[31.]252 U.S. at 434, 433.

[32.]Id. 433. But Madison stated, “Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the Constitution.” 2 Annals of Congress 1900–1901 (February 2, 1791).

[33.]“Letters of Camillus,” 6 Hamilton, Works 183 (Lodge ed. 1904).

[34.]252 U.S. at 433–434.

[35.]Willard Hurst, who served as law clerk to Justice Holmes and wrote a valuable monograph on Holmes’ view of constitutional history, states that in Missouri v. Holland Holmes “in effect . . . says that when all other evidence of the Constitution-makers’ intent fails, we must yet be guided by what we know to be their most general objective . . . to provide a structure within which the future may settle its own problems.” “The Process of Constitutional Construction,” in Supreme Court and Supreme Law 55, 57–58 (Edmond N. Cahn ed. 1954) (emphasis added). This is no license to ignore “evidence of the Constitution-makers’ intent.”

[36.]233 U.S. 604, 610 (1914).

[37.]Id. 610–611.

[38.]163 F. 30, 32 (1st Cir. 1908).

[39.]252 U.S. 189, 219–220 (1920). In Weems v. United States, 217 U.S. 349, 389, 397 (1910), Justice Holmes joined in a dissent by Justice Edward White stating that the meaning of “cruel and unusual punishment” was to be derived from English and pre-1787 State practices.

[40.]198 U.S. 45, 75 (1905).

[41.]281 U.S. 586, 695 (1930) (emphasis partially added).

[42.]Oliver Wendell Holmes, Jr., Collected Legal Papers 239 (1920); see also supra Chapter 17 note 32.

[43.]343 U.S. at 610–611, concurring opinion.

[44.]Id. 610 (emphasis added).

[45.]Supra Chapter 15 note 57.

[46.]328 U.S. 303, 321 (1946), concurring opinion.

[47.]Supra Chapter 11 at note 27.

[48.]Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161–162 (1951), concurring opinion.

[49.]National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (1949), dissenting opinion.

[50.]Id. 647.

[51.]Supra Chapter 14 at note 72.

[52.]See supra Chapter 7 at notes 48–53, 63–65, and Chapter 14 at notes 140–141.

[53.]The Legitimacy of the Business Corporation in the Law of the United States 63 (1970).

[54.]See supra at note 17.

[55.]Grey, supra note 1 at 706.

[56.]Id. 706, 705.

[57.]Id. 705.

[58.]Id. 706; cf. supra Chapter 7 at notes 54–59.

[59.]Grey, supra note 1 at 715 note 49.

[60.]Id. 715–716. For the settled scope of “natural rights,” see Kelly, supra Chapter 2 note 55.

[61.]Chapter 14 at note 15. Professor Cox alludes to “a deep and continuing American belief in natural law.” The Role of the Supreme Court in American Government 16 (1976). For additional quotations from Cox, see supra Chapter 14 note 38.

[62.]Raoul Berger, Congress v. The Supreme Court 38, 40, 42 (1969).

[63.]Id. 13–14.

[64.]See supra Chapter 12 note 13.

[65.]1 Annals of Congress 439 (emphasis added).

[66.]381 U.S. 479, 492 (1965), concurring opinion. Compare with Chief Justice Marshall, supra at note 26. Dissenting, Justice Black replied, “the Ninth Amendment was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power to the Federal Government,’ those rights which were not singled out were intended to be assigned” to it. 381 U.S. at 519, quoting 1 Annals of Congress 439.

[67.]Cantwell v. Connecticut, 310 U.S. 296 (1940): First Amendment—freedom of religion; New York Times Co. v. Sullivan, 376 U.S. 254 (1964): First Amendment—freedom of speech; Kent v. Dulles, 357 U.S. 116 (1958) and Aptheker v. Secretary of State, 378 U.S. 500 (1964): Fifth Amendment “liberty” —right to travel; Gideon v. Wainright, 372 U.S. 335 (1963): Sixth Amendment—right to counsel; N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958): Fourteenth Amendment “liberty” —freedom of association; Bolling v. Sharpe, 347 U.S. 497 (1954): Fifth Amendment “liberty” —desegregated schools in District of Columbia.

Instead of employing the language of “natural rights” the Court has enjoyed equal freedom by resort to “fundamental rights”; we learn that some right is “fundamental” only after the Court attaches the label. Supra Chapter 14 note 117. But that judicial practice cannot draw on the embodiment of “natural law” in the Constitution.

[68.]Griswold v. Connecticut, 381 U.S. at 520.

[69.]Supra note 1 at 716.

[70.]Supra Chapter 14 at notes 25–26.

[71.]Id. at notes 28–35.

[72.]Supra Chapter 2 at notes 26–30, 35–36, 39.

[73.]Supra Chapter 4 at notes 57–66; Chapter 2 at notes 26, 30; Chapter 10 at note 6.

[74.]Supra Chapter 13.

[75.]Supra Chapter 12.

[76.]Supra Chapter 14 at notes 123–125.

[77.]Lusky 19.

[78.]Id. 274.

[79.]Id. 263–264.

[80.]Id. 6.

[81.]Id. 337; see also id. 336, 339–341.

[82.]Id. 6.

[83.]The quotation is in the paraphrase of Professor Paul Kauper, “Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case,” 64 Mich. L. Rev. 235, 256 (1965).

[84.]Lusky 270, 318.

[85.]Id. 21.

[86.]Id. 81.

[87.]Supra at notes 10–18.

[88.]Supra Chapter 16 at note 33. In the North Carolina Convention Timothy Bloodworth stated, “I wish to leave no dangerous latitude of construction.” 4 Elliot 50. Elbridge Gerry stated in the First Congress, “The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument.” 1 Annals of Congress 523. Chief Justice Marshall was well aware of the continuing vitality of such fears. Supra at notes 14–16.

[89.]Supra Chapter 16 at note 8.

[90.]Federalist No. 78 at 504n.

[91.]Supra at note 50; see also Berger, supra note 62 at 263, 267–269.

[92.]Supra Chapter 17 at note 15.

[93.]Federalist No. 78 at 506, 507.

[94.]Lusky 72. Lusky’s reliance on the practice of “successive generations of Justices,” id. 95, does not advance his argument because: (1) no chain of argument is stronger than its weakest link—the original source of the power; (2) what a wielder of power claims is but “feeble proof of its legality,” supra at note 8; and (3) usurpation is not legitimated by repetition. Powell v. McCormack, 395 U.S. 486, 546–547 (1969). His reliance on United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936), for a theory of “implied power,” Lusky 90, leans on a case that has been widely criticized, and as Justice Jackson pointed out, proceeded under a delegation from Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–636 note 2 (1952), concurring opinion; David Levitan, “The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory,” 55 Yale L.J. 467 (1946); Raoul Berger, “War-Making by the President,” 121 U. Pa. L. Rev. 29, 69–75 (1972); C. A. Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” 83 Yale L.J. 51 (1973).

Lusky handsomely discloses that some of his “most perceptive Columbia colleagues” view his “implied power” theory skeptically because “(1) it affirms the legitimacy of constitutional rules not rooted in the constitutional text. (2) . . . it suggests . . . that the Court . . . can itself initiate changes in the law.” Lusky 25. He advances his theory “not because it is more nearly ‘correct’ but because it is more useful.” Id. 26 (emphasis added).

[1.]399 U.S. 78 (1970).

[2.]Patton v. United States, 281 U.S. 276, 288 (1930). Among the remarkable aspects of Florida v. Williams is that Chief Justice Burger, appointed by President Nixon as a “strict constructionist,” “join[ed] fully in Mr. Justice White’s opinion for the Court.” 399 U.S. at 105. Yet on the very same decision day, he stated in Coleman v. Alabama, 399 U.S. 1, 22 (1970), dissenting opinion, “While I do not rely solely on 183 years of contrary constitutional interpretation, it is indeed an odd business that it has taken this Court nearly two centuries to ‘discover’ a constitutional mandate to have counsel at a preliminary hearing,” a statement even more applicable to the “discovery” that the 12-man jury was not an essential component of trial by jury.

[3.]399 U.S. at 89–90.

[4.]1 Coke, Institutes of the Laws of England 155a (London, 1628–1641).

[5.]For citations and discussion, see Levy, Against the Law 270–276.

[6.]See Chapter 20 notes 38, 39; Chapter 21 at note 24. In Townsend v. Sain, 372 U.S. 293, 311 (1963), the Court stated that the “historic conception of the writ [of habeas corpus] anchored in the ancient common law and in our Constitution . . . has remained constant to the present day.” See infra note 42, and supra Chapter 11 note 5; Chapter 20 note 39.

[7.]399 U.S. at 88; cf. Justice Holmes, supra Chapter 17 note 32.

[8.]Supra note 4. Justice White notes that “The singular unanimity in the selection of the number twelve to compose certain judicial bodies, is a remarkable fact in the history of many nations.” 399 U.S. at 89 note 23.

[9.]399 U.S. at 87.

[10.]4 Blackstone, Commentaries on the Laws of England 350 (London 1765–1769).

[11.]Article XIV, 2 Poore 1410. For complete discussion of colonial and State sources, and Founders’ utterances, see F. H. Heller, The Sixth Amendment to the Constitution of the United States 16–34 (1951).

[12.]Massachusetts (1780), Article XV, Declaration of Rights, 1 Poore 959; New Hampshire (1784), Article 20, 2 Poore 1282; Pennsylvania (1776), Article XI, 2 Poore 1542; Vermont (1777), Chapter I, Sec. XIII, 2 Poore 1860.

[13.]Georgia (1777), Article LXI, 1 Poore 383; South Carolina (1790), Article XI, Sec. 6, 2 Poore 1633; New York (1777), Article XLI, 2 Poore 1339.

[14.]3 Elliot 658.

[15.]Mason, id. 528; Iredell, 4 Elliot 148.

[16.]Resolve of October 14, 1774, quoted in Duncan v. Louisiana, 391 U.S. 145, 152 (1968).

[17.]Declaration of Rights, Article III, 1 Poore 817; “according to the course of that [common] law.”

[18.]Supra note 13. For similar provisions see North Carolina (1776), Article IX, 2 Poore 1409; Pennsylvania, Article IX, Sec. 6, 2 Poore 1554.

[19.]Supra note 4 at 155b.

[20.]Bacon’s Abridgment, “Juries” (A) at 234; 2 Hale, History of the Pleas of the Crown 161 (1736).

[21.]3 Blackstone 379; see also id. 358, 365.

[22.]3 Elliot 467.

[23.]1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 141, 493 (1971).

[24.]3 Elliot 569.

[25.]399 U.S. at 103, 102.

[26.]Id. 93 note 35.

[27.]Id. 93.

[28.]3 Farrand 332; cf. infra note 34. Grayson, a Virginia opponent of adoption, charged that Article III abandoned “vicinage,” 3 Elliot 568–569, a view shared by Holmes in the Massachusetts Convention, 2 Elliot 109–110.

[29.]3 Elliot 573.

[30.]Id. 658.

[31.]399 U.S. at 93–94.

[32.]Quoted, id. 94.

[33.]Id. 94–96.

[34.]Quoted, id. 95 note 39. In the Pennsylvania Ratification Convention James Wilson had stated, “there is no particular regulation made, to have the jury come from the body of the county in which the offense was committed; but there are some States in which this mode of collecting juries is contrary to their established custom . . . In some states, the juries are not taken from a single county.” 2 Elliot 450.

[35.]See infra note 39.

[36.]399 U.S. at 92–93.

[37.]Id. 96.

[38.]Id. 96–97.

[39.]Pendleton: “It is strongly insisted that the privilege of challenging, or excepting to the jury, is not secured. When the Constitution says that the trial shall be by jury, does it not say that every incident will go along with it?” 3 Elliot 546; see also id. 547. Marshall re right of challenging: “If we are secure in Virginia without mentioning it in our Constitution, why should not this security be found in the federal court?” Id. 559. Randolph: “That the incident is inseparable from the principal, is a maxim in the construction of laws.” Id. 463; and see supra at note 29.

[40.]“The States which had adopted constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12 . . . or to have subsequently interpreted their jury trial provisions to include that requirement.” 399 U.S. at 98 note 45. Cf. Parker v. Munday (N.J. 1791), 1 Coxe’s L. Rep. 70, 71 (1816).

[41.]See supra Chapter 1 note 57.

[42.]United States v. Burr, 25 F. Cas. (No. 14,693) 55, 159 (C.C. Va. 1807): Treason “is a technical term . . . It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.” See also supra note 6.

[43.]399 U.S. at 97.

[44.]Id. 95.

[45.]Id. 97.

[46.]For citations see Raoul Berger, Congress v. The Supreme Court 286–287 (1969).

[47.]3 Elliot 544.

[48.]Supra note 42.

[49.]Quoted in 399 U.S. at 93 note 35.

[50.]“In Duncan v. Louisiana, 391 U.S. 145 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that, were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.” 399 U.S. at 86.

[51.]399 U.S. at 118, dissenting opinion.

[52.]Supra Chapter 18 note 3.

[53.]399 U.S. at 118.

[1.]3 Elliot 186.

[2.]4 Elliot 194.

[3.]Supra Chapter 17 at note 15.

[4.]Supra Chapter 7 at note 61.

[5.]“ [T]he Justices have given serious cause for suspicion that they have come to consider the Court to be above the law.” Lusky vii; and see id. 101. See Levy, supra Chapter 14 note 136; Murphy, supra Chapter 15 note 13; and Lewis, supra Chapter 17 note 56.

[6.]The Role of the Supreme Court in American Government 110 (1976). Cox does not regard the segregation decisions as “wrong even in the most technical sense,” id. 109, although he states, “Plainly, the Court was not applying customary constitutional principles.” Id. 60.

[7.]Id. 35.

[8.]Lord Chancellor Sankey stated, “It is not admissible to do a great right by doing a little wrong . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.” Quoted by Chief Justice Warren in Miranda v. Arizona, 384 U.S. 436, 447 (1966). Levy observes that scholars “cannot be ignored and cannot be gainsaid when they insist that any means to a justifiable end is, in a democratic society, a noxious doctrine.” Levy, Warren 190.

[9.]More fully quoted, infra note 20.

[10.]Cox states, “Nearly all the rules of constitutional law written by the Warren Court relative to individual and political liberty, equality, criminal justice, impress me as wiser and fairer than the rules they replace. I would support nearly all as important reforms if proposed in a legislative chamber or a constitutional convention. In appraising them as judicial rulings, however, I find it necessary to ask whether an excessive price was paid for enlarging the sphere and changing the nature of constitutional adjudication.” Cox, supra note 6 at 102.

[11.]Erie Ry. Co. v. Tompkins, 304 U.S. 64, 77–78 (1938).

[12.]Olmstead v. United States, 277 U.S. 438, 485 (1928).

[13.]“From the Wisdom of Felix Frankfurter,” 3 Wisdom, No. 28, p. 25 (1959), quoted by Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 209 (1973).

[14.]As Professor Charles Black stated, when urging noninterference with the Warren Court, “constitutional legality is indivisible . . . the right to wound one part of the body as you may desire is the right to destroy the life.” The People and the Court 190 (1960). Madison said, “It is our duty . . . to take care that the powers of the Constitution be preserved entire to every department of Government; the breach of the Constitution in one point, will facilitate the breach in another.” 1 Annals of Congress 500.

In a review of Alexander Bickel’s last work, The Morality of Consent, Professor Alan M. Dershowitz states that Bickel saw “the Nixon Presidency and Watergate as the ‘utterly inevitable’ consequence of the undisciplined liberalism and ‘result-orientation’ of the Warren Court.” Dershowitz comments, “A strange relationship, probably wrong and surely overstated.” “Book Reviews,” The New York Times Book Review, September 21, 1975, at 1. But Nixon’s “idea” man, Donald Santarelli, quite plainly had learned from the Warren Court. Supra Chapter 17 at note 59.

Jefferson “foresaw that if the Constitution were ever destroyed, it would be destroyed by construction or interpretation, in final analysis, by the federal judiciary.” Caleb P. Patterson, The Constitutional Principles of Thomas Jefferson 70 (1953).

[15.]S. Levinson, “Fidelity to Law and the Assessment of Political Activity,” 27 Stan. L. Rev. 1185, 1200 note 68 (1975).

[16.]Grey, “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 710–712 (1975). An earlier illustrative list had been furnished by Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 11–12 (1971). If effect be given to the framers’ intention, the decision in Strauder v. Virginia, 100 U.S. 303 (1879), that Negroes must be permitted to serve as jurors, was wrongly decided. See Chairman Wilson, supra Chapter 2 at note 26, the colloquy between Wilson and Delano, and remarks by Moulton and Lawrence, supra Chapter 9 at notes 25–27.

[17.]Supra Chapter 14 at notes 103–104.

[18.]J. C. Hutcheson, “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell L.Q. 274, 287 (1929). See also Martin Shapiro, Law and Politics in the Supreme Court 15 (1964).

[19.]Justice Stevens recently expressed a similar view. Runyon v. McCrary, 96 S. Ct. 2586 (1976), presented the issue whether the federal Act of 1866 prohibits private schools from excluding qualified children on racial grounds:

There is no doubt in my mind that that construction of the statute would have amazed the legislators who voted for it . . . [S]ince the legislative history discloses an intent not to outlaw segregated schools at that time, it is quite unrealistic to assume that Congress intended the broader result of prohibiting segregated private schools. Were we writing on a clean slate, I would therefore vote to reverse.Concurring opinion.

[20.]Cf. Lino A. Graglia, Disaster by Decree (1976). Justice Rehnquist reminded us of John Stuart Mill’s statement, “The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power.” Mill, On Liberty 28 (1885), quoted in Furman v. Georgia, 408 U.S. 238, 467 (1972), dissenting opinion.

[20a.]See supra Chapter 21 at note 41.

[21.]United States v. Butler, 297 U.S. 1, 79 (1936), dissenting opinion.

[22.]“Myth and Reality in Supreme Court Drama,” 48 Va. L. Rev. 1385, 1405 (1962).

[23.]Quoted supra Chapter 15 at note 50.

[24.]Quoted in Joseph P. Lash, From the Diaries of Felix Frankfurter 113 note 3 (1975). See also Lusky 80. The Supreme Court, by Justice Frankfurter, stated, “Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment.” Rochin v. California, 342 U.S. 165, 172 (1952).

[25.]Louis Jaffe, “Was Brandeis an Activist? The Search for Intermediate Premises,” 80 Harv. L. Rev. 986, 989 (1967). In 1924 Frankfurter stated that “The due process clause ought to go.” “The Red Terror of Judicial Reform,” 40 New Republic 110, 113, reprinted in Frankfurter, Law and Politics 10, 16 (Macleish and Pritchard eds. 1939).

The requirements for amendment or impeachment, it may be suggested, are so onerous as to render the Court’s decisions all but irrevocable. “ [I]f the policy of the government is to be irrevocably fixed by the decisions of the Supreme Court,” said Lincoln in his First Inaugural Address, “the people will have ceased to be their own rulers.” Quoted in Morton Keller, Affairs of State 17–18 (1977).

[26.]Attorney General Elliot Richardson resigned rather than discharge Special Prosecutor Archibald Cox at the insistence of President Nixon. Deputy Attorney General William Ruckelshaus was discharged for refusal to discharge Cox.

[27.]The People and the Court 209 (1960).

[28.]Quoted in Lash, supra note 24 at 59. Rodell referred to “the reverential awe-bred-of-ignorance, with which most Americans regarded the Court” in 1937. Nine Men 247 (1955). Professor Charles Black urges that lawyers “never cease to call the Court to account, and to urge reason upon it. Inadequate reason, lack of responsiveness to counter-argument [as in Reynolds v. Sims] —these are self-wounding sins in any court.” Address, “The Judicial Power as Guardian of Liberties,” before a symposium on “The Supreme Court and Constitutional Liberties in Modern America,” Wayne State University, Detroit, Mich., Oct. 16, 1976, at 9. Arrogation of power withheld is far worse.

[29.]Mason, supra note 22 at 1405. Mason states, “once the public recognizes the personal nature of the judicial power, it would become difficult for the judiciary to function at all.” Id. 1399.

[30.]The Bill of Rights 70 (1962); see also A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661, 695 (1960).

[31.]Letter to Felix Frankfurter, January 27, 1936, L. C. Rosenfield, Portrait of a Philosopher: Morris Raphael Cohen in Life and Letters 270 (1962), quoted in Lash, supra note 24 at 55. There is a “credibility gap between the Court’s pretensions and its actions.” P. B. Kurland, Politics, the Constitution and the Warren Court xxiii (1970).

[32.]Supra note 18 at 27; see also supra Chapter 7 at notes 56–57.

[33.]Cf. Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 1146 (1975).

[34.]Quoted in H. T. Mencken, Treatise of Right and Wrong 197 (1934).

[35.]“The contrast between morality professed by society and immorality practiced on its behalf makes for contempt of law.” On Lee v. United States, 343 U.S. 747, 758–759 (1952), Justice Frankfurter, dissenting opinion.

[36.]Lusky 20.

[37.]Supra Chapter 15 at note 18.

[38.]1 Gibbon, The History of the Decline and Fall of the Roman Empire 215 (Nottingham Soc. undated) (emphasis added). He said of the Roman emperors that “they surrounded their throne with darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed.” Id. 303.