Front Page Titles (by Subject) 17: The Turnabout of the Libertarians - Government by Judiciary: The Transformation of the Fourteenth Amendment
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17: The Turnabout of the Libertarians - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 
Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
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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:
By the 1950s the political atmosphere had changed. The legislative process, even at its best, became resistant to libertarian, humanitarian, and egalitarian impulses. At worst, the legislatures became repressive, in the libertarian view, because of the Cold War, increased crime, the fear of social disorder, and perhaps, the strength of established economic and political power . . . [I]n the new era these impulses were not shared so strongly and widely as to realize themselves through legislation. They came to be felt after the early 1950s by a majority of the Supreme Court Justices, perhaps by the fate which puts one man upon the Court rather than another, perhaps because the impulses were felt more strongly in the world of the highly educated.5
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:
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act.15
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:
changes in our fundamental law be made only when and if they have been subjected to the degree of deliberation and commanded the preponderance of assent, involved in adoption and ratification of a constitutional amendment . . . [T]he requirement was agreed upon (what legitimacy has our scheme of government had except as a compact?) and unilateral change involves usurpation, at least as much when effected by a court as by a majority in Congress. If one thinks the more-than-simple majorities required for constitutional change are too onerous, one disagrees with the Constitution itself.16
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
Constitution is flexible . . . Your point of view depends on whether you’re winning. The constitution isn’t the real issue in this; it is how you want to run the country, and achieve national goals. The language of the Constitution is not at issue. It is what you can interpret it to mean in the light of modern needs. In talking about a “Constitutional crisis” we are not grappling with the real needs of running the country but are using the issues for the self-serving purpose of striking a new balance of power . . . Today, the whole Constitution is up for grabs.59
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:
when the Court gives the language of the Constitution an unforeseen application, it does so, whether explicitly or implicitly, in the name of some underlying purpose of the Framers . . . [T]he federal judiciary . . . has no inherent general authority to establish norms for the rest of society . . . When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect.62
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,
discloses not a single case, in a century and a half, where the Supreme Court has protected freedom of speech, press . . . against Congressional attack. It reveals no instance . . . where the Court has intervened on behalf of the underprivileged—the Negro, the alien, women, children, workers, tenant farmers. It reveals, on the contrary, that the Court has effectively intervened, again and again, to defeat Congressional attempts to free the slave, to guarantee civil rights to Negroes, to protect workingmen, to outlaw child labor, to assist hard-pressed farmers, and to democratize the tax system.69
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:
I had rather ask for an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.90
For him those definitions were to be read in light of the explanations made to those who ratified the Constitution.91
[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.
[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).
[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.
[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  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.
[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.
[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.