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 Original Intention

the american scene

english sources

james hutson’s critique of the sources

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

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

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

21

Arguments for Judicial Power of Revision

Chief Justice Marshall

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

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

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

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

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

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

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

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

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

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

Mr. Justice Holmes

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

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

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

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

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

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

Mr. Justice Frankfurter

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

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

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

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

Professors Thomas C. Grey and Louis Lusky

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

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

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

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

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

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

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

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

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

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

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

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

22

“Trial by Jury”: Six or Twelve Jurors?

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

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

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

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

A Jury of the Vicinage

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

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

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

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

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

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

23

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[13.]Id. 182.

[14.]Id. 184.

[15.]Id. 92.

[16.]Id. 97.

[17.]Id. 173.

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

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

[20.]2 Farrand 321, 325, 615–616.

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

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

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

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

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

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

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

[28.]See supra note 19.

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

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

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

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

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

[34.]252 U.S. at 433–434.

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

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

[37.]Id. 610–611.

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

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

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

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

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

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

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

[45.]Supra Chapter 15 note 57.

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

[47.]Supra Chapter 11 at note 27.

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

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

[50.]Id. 647.

[51.]Supra Chapter 14 at note 72.

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

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

[54.]See supra at note 17.

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

[56.]Id. 706, 705.

[57.]Id. 705.

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

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

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

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

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

[63.]Id. 13–14.

[64.]See supra Chapter 12 note 13.

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

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

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

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

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

[69.]Supra note 1 at 716.

[70.]Supra Chapter 14 at notes 25–26.

[71.]Id. at notes 28–35.

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

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

[74.]Supra Chapter 13.

[75.]Supra Chapter 12.

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

[77.]Lusky 19.

[78.]Id. 274.

[79.]Id. 263–264.

[80.]Id. 6.

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

[82.]Id. 6.

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

[84.]Lusky 270, 318.

[85.]Id. 21.

[86.]Id. 81.

[87.]Supra at notes 10–18.

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

[89.]Supra Chapter 16 at note 8.

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

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

[92.]Supra Chapter 17 at note 15.

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

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

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

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

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

[3.]399 U.S. at 89–90.

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

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

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

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

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

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

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

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

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

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

[14.]3 Elliot 658.

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

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

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

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

[19.]Supra note 4 at 155b.

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

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

[22.]3 Elliot 467.

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

[24.]3 Elliot 569.

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

[26.]Id. 93 note 35.

[27.]Id. 93.

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

[29.]3 Elliot 573.

[30.]Id. 658.

[31.]399 U.S. at 93–94.

[32.]Quoted, id. 94.

[33.]Id. 94–96.

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

[35.]See infra note 39.

[36.]399 U.S. at 92–93.

[37.]Id. 96.

[38.]Id. 96–97.

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

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

[41.]See supra Chapter 1 note 57.

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

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

[44.]Id. 95.

[45.]Id. 97.

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

[47.]3 Elliot 544.

[48.]Supra note 42.

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

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

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

[52.]Supra Chapter 18 note 3.

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

[1.]3 Elliot 186.

[2.]4 Elliot 194.

[3.]Supra Chapter 17 at note 15.

[4.]Supra Chapter 7 at note 61.

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

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

[7.]Id. 35.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[36.]Lusky 20.

[37.]Supra Chapter 15 at note 18.

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