The Legacy of Constitutionalism: The hoebner Era Reconsidered

...But more often they have a good faith, informed disagreement on their hands...

...In The Common Law, Holmes demonstrated that, in historical fact, there was little about the common law that was either transcendent or immutable...

...Joseph A. Rehyansky OVER HERE: VETERANS IN THE NEW AGE D o n ' t look back...

...Thus private property could be condemned and taken for public purposes, but only upon payment of fair compensation...

...Like so many lawyers, Siegan writes about courts and the Constitution as though they were self-contained mechanisms His focus is too narrowly professional...

...Despite the profound differences which developed among Justices Black, Reed, Frankfurter, and Douglas on many other issues, they all continued throughout their careers to exemplify the trait which led FDR to appoint them in the first place: profound deference to the legislature in matters of economic policy...

...epitomized by the Warren Supreme Court~ Nixon chose the same method that Roosevelt had to settle for thirty years earlier, the always chancy one of filling vacancies on the Court with new justices whose views gave promise that they would work to curb the abuses of the past...

...No small order, that...

...So you think Hitler wasn't wrong, really wrong...

...Foremost among these is a sturdy and reflective sense, in part a historical sense, of the difference between those choices in public policy which are excluded by the Constitution and those which merely ought to be excluded by the good sense of the American people and their elected representatives...

...To ensure the effectiveness of these limitations v i s ~ v i s the active branches of government, the executive and the legislature, in which both the power and occasional temptation to transgress them would reside, the Framers envisioned--"provided" would be inaccurate since nothing in the Constitutton expressly so provides--that the courts, both federal and state, and the Supreme Court in the final instance, would be empowered and obligated to invalidate any exertions of governmental authority, including legislation, which they found to be inconsistent with said limitations...

...The justices of the Locbner era, so long the object of ridicule iand contempt at the hands of glib liberals, were overdue for the kind of appreciation Siegan brings to their work...

...objectively wrong, no...

...Though I do tend to be fairlytolerant about other social practices...

...but Nixon's efforts in this regard were flawed from the outset by his tendency to confuse potential appointees' fundamental judicial philosophy with their supposed positions on specific issues which the 1968 campaign had put in the forefront...

...This is, of course, much easier said than done...

...And during most of it nobody, it seemed, wanted us there...

...Constitution were prepared, albeit some quite reluctantly, to commit the infant Republic to the fundamental premise of popular sovereignty, they also harbored considerable trepidation about what Madison called " t h e tyranny of the m a j o r i t y , " and had been schooled as well by their pre-Revolutionary experience with the British Parliament to distrust the notion of legislative omnicompetence...

...In those called to fill judicial office, however, subtler and more exalted moral and intellectual commitments are required...

...Manifest/~tions of professional Vietnam veteran syndrome--a personality and behavior disorder at least three times as obnoxious as the post-traumatic stress syndrome currently in vogue--have been much with us through 1981: from the veterans' protests and their fizzled opera bouff[ hunger strike of the spring and early summer, through the continuing controversy over the design and meaning of the Vietnam Veterans' Memorial in Washington, to the recent discharge emitted by Mr...

...What is needed most is a remedy for what might be called the hypertrophy of judicial review, which is symptomatic of both the present era and that of Lochner despite the almost diametrical opposition of the...

...ernmcnt could offer...

...The latter group, far more than the former according to Siegan, displayed true fidelity to the constitutional ideals of the Framers and ~ad a sounder understanding of the pl~-ce of judicial review in the American polity...

...Self-righteous, dogmatic, moralizing, and absolutist, many contemporary judges have been all too willing to wrap their personal" ideological predilections in the mantle of the Constitution making of the courts what George Will aptly described as "instruments of administered enlightenment," the fulcrum of power most favored by the "new class...

...Another 153,303 suffered what the Department of Defense 1981 Almanac calls "wounds not mortal": an imprecise category that lumps together those permanently blinded or paralyzed or maimed with those who got cuts, scratches, or bruises, or a temp...

...The scope of legitimate curtailment of property rights was quite narrowly defined, however, by the institutions of the common law of England as developed to what most of the Founders regarded as the stage of its ultimate perfection in eighteehth-century practice and as distilled in theory in the pages of Blackstone's Commentaries...

...Nixon proved far less prescient with his appointments...

...the wheel had com~" nearly full circle, and a new political mandate developed to curb the excesses of the imperious judiciar...

...There is much in this book that is useful and insightful, and that has long needed saying...

...Louis Brandeis, Oliver Wendell Ho|mes, Earl Warren, William Douglas, and Hugo.Black, among other luminaries of the liberal judicial pantheon, are severely taken to task, while such "tTlivrr~r,.~ ~ffChicag~ Press...

...From my point of view, animated and informed by a set of often inchoate principles oozing with import for ethics, politics, and more, they may be repugnant, even intolerable...

...The Framers, in other words, would have been astounded to find that pornographers, for example, had become singled out for special judicial solicitude, while producers of more mundane goods, such as automobiles or farm machinery, were left to the mercies of untrammeled majoritarianism...

...This is described, located precisely in time by reference to specific critical decisions, and elaborately deplored, but not really accounted for...

...Roosevelt's failure to pack the Supreme Court, even at the height of his popularity and power, suggests that drastic institutional restructuring along the lines of legislation currently proposed to abolish various categories of federal jurisdiction is not the answer...

...Siegan points out _9 while the Framers of the U.S...

...In fact, it is Holmes's famous dissent in Lochner that invariably inspires admiration, especially his mordant remark: "The Fourteenth Amendment does not enact Mr...

...Justice Blackmun's authorship of Roe v. ff/ade, the seminal abortion decision which many regard as the most extravagant judicial usurpation of legislative authority in American history, is doubtless an extreme case, but, Justice Rehnquist aside, the Nixon appointees have done disappointingly little to restrain ideologically inspired crusading by the federal courts...

...organk rclarh~n o| t}lt-' t_ltizt"n to theStateorof'/at.,s~'z/dzre It remade for pet,pie .!tundamentallv diffcring vj(.v,,s, and the a~.cl...

...That is why, in my judgment, a relatively small band of malcontented semi-professional Vietnam veterans, in concert with the ideologues, simps, and media panderers still looking for opportunities to validate the positions they espoused during the war have been able to focus a sizeable portion of the public's concern on their "plight...

...The conferral of enhanced authority coincided, in other words, with vastly increased occasions for its exercise...

...It was, rather, the gritty, uncouth product of pragmatic adjustment, logical compromise, and constant evolution, shaped over centuries by "considerations of policy and social advantage...

...This may have been simply bad luck...

...This emergent majority, moreover, grew increasingly impatient with judges who regularly nullified legislation having broad popular support on the basis of such doctrinaire shibboleths as "'liberty of contract...

...I regret still more to report that attempts to argue for such a view often meet with chilly receptions, or worse yet horror and revulsion: "Then you think when two people disagree on a moral or political question, it need not be the case that one is wrong...

...I . f objectivity is to mean that values are (somehow) really out there, and subjectivity that we arbitrarily choose them, then it seems quite legitimate (and tempting) to say that values are neither subjective nor objective...

...9 . . In every case . . . the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power . . . or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual . . . to enter into those contracts in relation to labor which May seem to him appropriate . . . for the support of himself and his family...

...As a mechanic might be expected to appraise an engine solely in terms of its efficiency and smoothness of performance--what else, after all, does one expect from an engine?--so lawyers are prone to appraise judicial performance primarily with reference to criteria of essentially professional interest only, such as coherence of doctriP.e, the candor and craftsmanship of opinions, the deft balancing of freedom and constraint in the handling of precedent, and so forth...

...Anyone even cursorily acquainted with that history, particularly as it relates to the post.Civil War era, wilt confront in these pages "a quite familiar account of the great Supreme Court cases and major doctrinal developments, but with the conventional designations of heroes and villains almost totally reversed...

...This enlargement of federal judicial authority was significant particularly be'cause it occurred just when state governments, in response to industrialization and the emergence of more sharply divergent economic interest groups, were about to embark upon a number of reform measures at odds with laissez-faire policy...

...The transition from the state of nature to the condition of civil society entailed, according to Locke...

...The definition of judicially protected liberty was therefore expanded to include the newly minted "liberty of contract," which quickly took on a decidedly active, e n t r e p r e n e u r i a l - - o n e is tempted to say Gilderian--cast...

...It could, moreover, 14 THE AMERICAN SPECTATOR JANUARY 1982 justly be subject to reasonable regulation by law in order to prevent one person's property from being used to diminish the value of a n o t h e r ' s (e.g., by abatement of a nuisance), or to protect the public weal (e.g., by regulation of natural monopolies...

...The lesson of this era in constitutional history--that the American people would not indefinitely tolerate a judicially imposed economic philosophy substantially at odds with the one prevailing in the political arena--was originally discerned and then trumpeted by liberals in the heyday of their legislative ascendancy...

...The dynamics and mterrelatior~ships of such influences can be discerned only through an imaginative and encompassing exercise of the historical sense, particularly the sense of wha.t the past forecloses in the future...

...And no doubt they will also find themselves in strenuous disagreement with this conclusion, particularly if they believe that the institution of judicial review has fallen into a lamentable state of disrepair, or think that the least of its problems is that it does not patrol a broad enough precinct, or doubt that anything salubrious is likely to follow from its being encouraged to roam about the polity even more at large...

...A notable irony of the last few decades is that latter-day liberals have largely forgotten this lesson, while conservatives have taken it to heart...

...Felix Frankfurter, a La Follette supporter in the 1924 election, went so far as to urge in the New Republic that the due process clause of the Fourteenth Amendment be repealed by constitutional amendment...

...Roosevelt was extraordinarily lucky with his early appointments...

...But never, I think, do we step all the way back and make up a whole ~ew set...

...The discomfiture of such stalwart liberal foes of judicial intrusion into matters of commercial regu|adon as Jusdces William Brennan and Thurgood Marshall, when confronted by cases involving "commercial speech," campaign finance legislation, or efforts to curtail public lobbying advertising by corporations, wherein Firs~Amendment rights were successfully asserted, affords some ground for sly satisfaction...

...But in writing about American courts, the Supreme Court in particular, analysis which proceeds wholly within these terms of reference will not suffice...

...Only some elementary logical confusions mandate my keeping hands off...

...Most important was the adoption of the Fourteenth Amendment in 1868, which imposed upon the states the obligation to accord citizens due process as a matter of federal law, thereby giving federal courts jurisdiction to strike down state legislation on grounds far broader than previously available...

...Books such as The Common Law stirred currents of opinion in the realm of jurisprudential thought, but these by themselves would probably not have sufficed to bring down the temple of laissez-faire constitutionalism, To complete that process, the emergence of a practical political force prepared to challenge overweening judicial pretensions was needed...

...For the record, the chasm between them and me is as unbridgeable as the one between me and Jane Fonda...

...substituting the goal of deregulating the economy for Nixon's determination to get tough with criminals...

...Something undefined in my own temperament or character has kept me from feeling the way they do: cheated, embittered, unappreciated...

...and 57,685 of us did not live to see the year through...

...S iegan leaves out of his account the great forces at work in both American politics and jurisprudence which brought about the collapse of the old edifice and which make its restoration impossible...

...These can best be summed up in the following words of Justice Holmes, again from his Lochner dissent: But a c.nstituti()n t.-, rl()t irttt'nd('d rH cmb...,d,, a partl,.ular ('conomic the,,r,., whcthcr of" patt'r...

...Of course I can...

...Preeminent among such rights, which because anterior are superior to positive law, are those of acquiring, using, and disposing of property...

...You know--Frank, as in "Frank: A Vietnam Veteran--A Matter of Life and Death Special," brought to us this Veterans' Day last on public television, courtesy of WGBH Boston...

...Herbert Spencer's Social Statics...

...There are competing conceptions afoot, and so we have the working room to step back a bit and question particular commitments...

...This confusion was most clearly manifested by his frequent equation of "strict constructionists" with those who would "strengthen the peace forces" against criminals...

...This is because the constitutional role of American courts gives them a significant part to play in the formulation of public policy and, in the case of the Supreme Court, with increasing frequency, a decisive part as against the other branches of government...

...19.50...

...David Stockman and James Fallows, among others, stayed home, keeping company with all the others who were bright enough, principled enough, or slippery enough better to discern where their higher duties lay and how their country's best interests might more suitably be served...

...Were President Reagan to take Siegan's book seriously as establishing criteria for forthcoming Court appointments, he would run a large risk of making a mistake similar to Nixon's...

...emphasis added] For decades now, this opinion has been presented to students of constitutional law F o r a prolonged period, in fact until well into the twentieth century according to Siegan, the courts of this country, emboldened by the statesmanship and eloquence of John Marshall, well understood their responsibility and vigorously executed their function as preeminent guarantors of individual rights, including property rights, against majoritarian excess and legislative overreaching...

...Then you can't condemn strange practices in faraway societies...

...But we don't want arguments to show why Hitle'rs are wrong, really wrong...

...As Siegan rightly notes, the critical decision in the transformation of the venerable right not to be arbitrarily deprived of the ownership of property into the novel and expansive right not to be hindered in its exploitation and exchange was A l l g e y e r v. Louisiana, written by the esteemed Justice Rufus Peckham whose notorious Lochner opinion a few years later established him as the high" priest of laissez-fake constitutionalism...

...and I regret to report that I haven't such an account up my steeve...

...In support of this position, Siegan argues that the abandbnment of entrepreneurial activities to the unchecked whims of legislative will was in the first place "unconstitutional," since nothing in the Constitution warrants a judicial preference for some kinds of rights over other...

...We want to keep them out of power...

...They may be as fervid in their .devotion to competitive efficiency and minimal government as Justice Peckham ever was, but they' will not be able to unlearn the lessons which the intervening years have taught, especially to conservatives, about the proper role of.the judiciary and the prudent interpretation of the Constitution...

...This is because prospective Court appointees, regardless of whether "liberal" (i.e., welfarist, interventionist, redistributionist) or "conservative" (i.e., the opposite of the foregoing), will find themselves unable to replicate the vision and values of the Lochner-era jurists...

...At the risk of overdoing the engine metaphor, one gets the impiessitm from reading Siegan that FDR replaced a bunch of "sound" justices with "defective" ones, somewhat in the manner of changing sparkplugs, and this has caused the Supreme Court to misfire and malfunction ever since...

...To restore proper functioning, all that is required is that President Reagan and his successors fill future vacancies with new justices of the BradleyPeckham-McReynolds brand, and when the last of the defective variety have been replaced, judicial review will once again begin to purr on all cylinders...

...The qualities of mind and spirit required in those who would execute the awesome responsibility of judicial review are not easily discerned, nor is their persistence following appointment assured by any facile formula...

...acceptance of certain qualifications on the enjoyment of property and other natural rights in the interest of securing the practical protection for them which only organized society and effective gov...

...We went, all of us, through a scarifying and unearthly year, a year of risks and dirt and exhaustion, fear and homesickness, and very loud noises...

...Emboldened by the luminous triumph of the original desegregation decision, surely the most potent exertion of judicial authority in history and perhaps the most beneficent in its consequences, reformist judges began to jettison first one then another canon of judicial restraint, to the point where a good argument could be advanced that the federal courts now rival the federal bureaucracy as the nemesis of sound public policy and democratic selfgovernment...

...The publication last year of Bernard H. Siegan+s scholarly polemic Economic ldberties and the Constitution" was at: important event...

...9 . . The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words...

...I am pragmatist enough to think that should put an end to this issue...

...Frank Barber...

...The American people are likely to be at least as hostile to efforts to annul the established authority of the courts as to abuses in the exercise of that authority...

...Sure...

...By the time of President Nixon's election in 1968...

...But it's no coincidence that we tend to affirm strikingly similar values...

...The gravamen of Siegan's indictment of the modern Supreme Court is that, quite suddenly, unaccountably, and unjustifiably, it withdrew constitmional protection from a wide range of activities falling under the broad heading of economic...

...They are in no sense wards of the State...

...dent of our findin R certain oplnw, n-, natural and familiar or n o v e l and e,,'cn shllcklng i)ught n~H rt) ( . n t . lud(" our judgment up~,n the qUC-ll(~rl whr ~,tatutc~ ('nlbodylng them c~ml]ict v, lth ihe Con,-;litUlu>n ~f th(: Lnitcd ~tate,~ The above is one of t.he classic formulations of the case for judicial restraint...

...And since we don't run int~ cannibals and the like, I wonder why it matters one way or the other what we say about them...

...Such drastic measures were probably avoided only by Roosevelt's seizing the opportunity to appoint four new justices all sympathetic to the regulatory and interventionist role of government, shortly after the failure of his Court-packing plan in 1937...

...9 . . There is, in our judgment, no reasonable foundation for holding this [act] to be necessary or appropriate as a health law . . . . If this statute be valid . . . there would seem to be no length to which legislation of this nature might not go...

...So it must seem--and I get the impression that it does--to those of our Joserph A. Rebyansky is an enlisted veteran of service in Vietnam with George S. Patton Ill's l l t h Armored Cavalry Regiment, a contributor to National Review, and a lawyer...

...specific constitutional doctrine of each...

...Rather, they are to a large extent socially generated+ They have histories of their own, and in the process of becoming persons we are shaped by the values...

...Most modern constitutional historians charge the Locbner-era Court with giving unbridled vent to the dogmas of laissez-faire economics and Social Darwinism by insisting upon the norm of unfettered competition...

...That Siegan is led finally to prescribe so dubious a course as yet greater aggrandizement of authority on the part of an institution already surfeited with self-assumed authority sterhs from a pervasive shortcoming of this work, namely, the absence of a broad historical sense...

...And yes, I would be glad to stop, using force if necessary, a prospective cannibal, even though I know that on his view what he's doing is acceptable, sensible, even richly meaningful...

...In the nearly 50 years since this great juridical somersault, few justices have shown any proclivity for even a limited restoration of economic due process as a serious limitation on legislative power...

...Such a force was gradually forged through the Populist and Progressive movements of the closing decades of the nineteenth century an d opening ones of the twentieth, finally triumphing nationally with the coming of the New Deal...

...FaLling that, we want m shoot them...

...Hence the workings of the American judiciary, including the ebbs and flows of various constitutional doctrines, cannot be satisfactorily understood other than as, at least in part, political phenomena, subject to all the influences at work in American society that impinge upon its politics...

...The appropriate means of rescue from our present judicially exacerbated disorders lies in making thoughtful and painstaking appointments to the federal bench, particularly to the Supreme Court...

...With the way prepared by Holmes and Brandeis, and under the impact of Roosevelt's abortive "court-packing" plan and the raft of liberal appointees which follOwed, the New Deal Court, in the most abrupt doctrinal shift in the history of the tribunal, virtually disclaimed any competence to set aside legislation touching upon economic or property rights, interred the notion of'"liberty of contract" as though it were a malodorous cadaver, and made "Lochnerizing" an opprobrious epithet denoting iudicial usurpation of the rawest kind...

...unlikely figures as James McReynolds, Rufus Peckham, and Joseph Bradley are singled out for praise...

...By all means, let the President fill the cabinet and the agencies with those whose qualifications include a determined preference for a freely functioning economy and a minimum of governmental intrusion in the lives of the citizenry...

...These are facets of judging which should never be denigrated, and it is surely both proper and understandable that lawyers writing about courts should try to convey to laymen a due appreciation of them...

...They also foresaw that such devices as the property-qualified franchise, indirect election of senators, and the electoral college in its original incarnation would probably be eroded by the passage of time and the irresistable impulse of democratic egalitarianism...

...Siegan closes with a call for a return to the sound tradition and practice of judicial review envisioned by the Framers and established by the courts throughout the whole of their history until the New Deal demission...

...we need a unified theory of the sort Nozick offers...

...Both are laudable purposes, but the former 18 THE AMERICAN SPECTATOR JANUARY 1982 has even less to do with one's approach to constitutional interpretation and basic judicial philosophy than the latter...

...There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the stare...

...The following language from the latter, in which a New York statute !imiting the number of hours for which bakery workers could be employed was s t r u c k down, suggests the distinctly laissei-faire gloss placed upon the due process clause by the jurisprudence of the late nineteenth-century Supreme Court: _9 . . The statute interferes with the right of contract between the employer and employees...

...Behind it lay Holmes's earlier great work, The Common Law, which profoundly affected American legal thought, paving the way for the emergence of legal realism early in this century...

...Such a return would entail a renewed sense of both authority and obligation to scrutinize legislation of all kinds, regardless of whether it restricted economic or other freedoms, against the due process criterion of substantive radonality...

...War for a variety of reasons...

...There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker...

...Even if one substitutes Milton Friedman's Free to Choose for Herbert Spencer's Social Statics, it is simply impossible that any future Court might be assembled which would be prepared to interpret the Constitution as foreclosing any choices of economic policy, however inimical to free market ideals or competitive efficiency, which any American legislature is likely to make...

...Siegan begins by reiterating that, pace Garry Wills, the Founders of the American Republic were for the most part Lockeans in their political philosophy, and hence believed that the principal purpose of government is to preserve and protect rights conferred upon individual citizens by the law of nature rather than by the dispensation of the state...

...An example of this book's shortcomings in this regard is the explanation--absence of explanation really--which Siegan offers for the sudden jettisoning of economic due process in the 1930s...

...All that was required was to incorporate wholesale the strictures of the common law into the due process clause, a step THE AMERICAN SPECTATOR IANUARY 1982 17 clearly warranted as regards questions of judicial procedure in contrast to legislative power...

...16 THE AMERICAN SPECTATOR JANUARY 1982 Bearing all this in mind, many readers will find themselves caught unawares by Siegan's principal conclusion---that the remedy for unprincipled judicial activism lies in further extending such activism into spheres largely left alone by the courts in recent decades...

...9 . . We do not believe in the soundness o f the v i e w s which uphold this law...

...The most that Siegan can find to applaud in recent Supreme Court decision-making is the rather awkward realization that economic or commercial interests cannot be so sharply or readily distinguished from the so-called expressive interests which the post-New Deal Court has been especially eager to protect...

...What we need is an account of how that could be, how value works, how personal identity works, how society is possible, and so on...

...Among the demands of Progressive spokesmen were devices for radical curtailment of judicial authority, for instance, the popular recall of judges and the legislative overriding of judicial decisions...

...The Locbner era is for him a veritable Golden Age of sound and steadfast constitutionalism, Justice Peckham and his confreres, in fact, wrote better than they knew...

...each will argue for the conceptions of humanity embodied in his own views...

...To confront and turn back the burgeoning anti-free market legislation emanating from the states, judges required something a bit more muscular and dynamic than the due process clause as applied to property rights traditionally conceived, since these tended to he rather passively delineated, focusing on the freedom to acquire property and security against quite palpable forms of its deprivation at the hands of government...

...Unutterably inhumane, cruel, despicable, yes...

...Blackstone, and the Founders...

...Whereas they condemned anti-competitive regulation out of an arpriori hostility to it, Siegan enlists contemporary "Chicago School" studies of business regulations which demonstrate that measures of the maximum-hours-ofbakers sort are most often economically irrational, injurious to the public welfare, harmful to those purportedly benefitted, and inspired by politically potent special interests seeking legal insulation from competition from small concerns or erstwhile new entrants...

...During the chief justiceship of Earl Warren, activist judges began to read the tenets of sectarian liberalism into the Constitution, and at times it seemed that the Fourteenth Amendment was being read to incorporate the platform of the Americans for Democratic Action...

...Note that my picture of how the argument proceeds looks pretty much llke that of the objectivlst, Each *,ill appeal to the other to recognize unsavory implications of his view...

...This point may be freely granted, although it.is questionable how much encouragement for Siegan's thesis one should be willing to derive from it...

...Judicial vigilance against unconstitutional encroachments on the prerogatives of property owners was broadened and intensified after the Civil THE AMERICAN SPECTATOR JANUARY 1982 15 as representing judicial review at its worst, with the justices of the Supreme Court imperiously substituting their view of the reasonableness of economic regulation for that of the people's elected lawmakers and rebuking legislators as though they were errant schoolboys...

...I t is a measure of Siegan's departure from the foregoing standard interpretation that what it deplores and condemns he applauds in glowing terms...

...ary ringing in the ears...

...Only slightly less important was a major elaboration upon the meaning ascribed to the term "liberty" which, along with life and property, was protected against legislative restrictions not measuring up to the increasingly rigorous, judicially defined standards of due process...

...However much in thrall they may have been to the regnant economic and social theories of their time, Justice Peckham and his ilk at least managed to articulate and implement a coherent and principled theory of judicial review, something in rather short supply on the Court since the judicial revolution of the 1930s...

...Thus the Framers devised a written constitution which, in addition to establishing a separation of legislative, executive, and judicial powers, prescribed a number of important limitations upon gnvernmental power, including the prohibition in the Fifth Amendment, subsequently made applicable to the states in the Fourteenth, against deprivations of life, liberty, or property without due process of law...

...Frank, as far as one can determine from viewing tb, is show, is a THE AMERICAN SPECTATOR JANUARY 1982 19...

...Oh, one could be misunderstanding some principle he holds, or not observing the logic of the moral concepts, or simply contradicting himself...

...To the obvious objection that the broadened ambit of judicial review he advocates would necessarily embroil the judges in difficult policy and value judgments and nearly insoluble questions of degree, since the "reasonableness" of legislative restrictions upon liberty will remain the test of their validity, Siegan rejoins that judgments in the economic area are no more problematic than those which the modern Court has been rendering with abandon in such areas as national security, freedom of expression, establishment of religion, and equal protection...

...This was what enabled them so confidently to strike down legislation as " u n r e a s o n a b l e , " that is, as restricting freedom of action beyond what the common law traditiofially sanctioned...

...An electorally decisive number of Americans decided that they wanted a degree of governmental intervention well beyond that contemplated by the model of the "night watchman" state, came to believe that some restrictions on the formal freedom of the powerful few might enhance the practical freedom of the powerless many and insisted that government undertake various adjustments of the "natural" workings of the market and property system...

...The Court was, in other words, doing in Locbner and its progeny nothing more than what it was intended by the Framers to do: protecting the rights of those unable to fend for themselves in the give and take of the political process from the predations of benighted or spurious majoritarianism...

...The justices of the Old Guard apotheosized the common law as an embodiment of right reason, possessed of transcendent and immutable validity, a kind of secularized and nationalized continuation of the religious and cosmopolitan natural law tradition of the Middle Ages...

...Mauti~e j . Holland teaches law at Indiana University...

...nali~lm and the...

...Society doesn't afford us some monolithically unified morality or political theory...

...generation who did not go to mat war, and especially to all the others who have never been to any war, that there must be among us a ring-knocking, secret-handshaking bond, a mutual acknowledgement and respect that says, "Look me in the eye and I'll tell you if you were really there," an implacable, shoulder-to-shoulder, VFWish solidarity that probably hasn't actu'ally existed since the Alamo, or Bataan, or the Warsaw ghetto...

...Since there is no magic wand w.e can wave at the disputants to find out which one is wrong, really wrong, insisting that the dispute can " i n principle" be settled makes not a whir of difference so far as our practice goes...

...The book stands much of what has long been established as the accepted history of American constitutional interpretation squarely on its head...

...We don't each spin our moral and potiticaa views out of thin air...

...A different, and perhaps more accurate, way of stating it is that the Court was guilty of elevating to constitutional dignity the highly restricted scope of legitimate operation conceded to the police power by classical common law, with its individualistic, vested-rights orientation and its contemplation of a rather inert legislature acting in a somewhat marginal, interstitial capacity, tn so doing, the judiciary was in a sense making common law, in its generality if not in its particulars, superior to legislation, thereby shackling the most likely source of reform and adaptation in public policy...