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

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.

[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.