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

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.

[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.