AGAINST THE NEOCONSERVATIVES BLACK RIGHTS & JUDICIAL WRONGS
Spitz, David
Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke...
...He contends that blacks are not legally entitled to many of the rights they now claim—e.g., suffrage, reapportionment, school desegregation, miscegenation— for those rights are not in the Constitution...
...How shall we know when they sufficiently restrain themselves...
...The struggle for human rights is a permanent war...
...I put first the principle of equity: that courts must provide a remedy in proportion to the injury, so as to make that injured person whole...
...This maxim, a qualification of the previous point, is a matter of prudence, not of scientific exactitude...
...These problems come together on the issue of racism in America...
...His is the voice of Javert: The law, the law, I live only by the law, and I will see to it that the law is obeyed...
...Life, liberty or property" referred simply to auxiliary rights pertaining to those "fundamental" rights...
...Justice requires both the right method and enlightened judgments...
...we should not be ruled by an aristocracy of the robe...
...This is why the internally divided Illinois courts, abetted by split decisions (without opinions) of the United States Supreme Court, pursued a vacillating course: first upholding the ordinances, then allowing the march but banning the display of swastikas, finally permitting both the march and the Nazi insignia...
...In emphasizing these elements of democratic theory Berger is on sound terrain...
...Their focus, therefore, is not on the right method but on right results...
...What guidelines determine, or ought to determine, the limits of judicial interventionism...
...6th ed., New York: Appleton-Century-Crofts, 1958...
...Without such intervention, they would still stand before Congress and state legislatures, and before public opinion, as servile petitioners, not equal citizens...
...428-31...
...Thus, he says, "privileges and immunities" included only those rights previously set forth in the Civil Rights Act of 1866: personal *Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977...
...III There is certainly room for doubt that Berger reads the intention of the framers correctly, or even that he knows who the framers were and how, after a century of time, their intention—if it was a single intention—is to be discovered...
...Hence the stipulation that should a state exclude blacks from the suffrage, this denial would not be void...
...they cannot be (and never have been) restricted to what Morris Cohen called "the phonograph theory of the judicial function": the legal fiction that in the adjudication of cases judges, like sales clerks in a music shop, find (or ought to find) and merely apply, but do not make (or ought not to make), the law...
...It is true that judicial review is not beyond correction and control: through political pressure (say of a determined president like Jefferson or Grant or Franklin Roosevelt, or—as Mr...
...For Berger to avow sympathy for their political aims but to deplore their recourse to judicial power as illegitimate is altogether unrealistic...
...The blacks all too obviously are the smaller rather than the greater part of the American nation, but they too have fewer books (and lawyers) to protect them...
...What if they go too far, as 201 they have by injecting substantive meaning into the due process clause...
...Yet Berger, ignoring the ancient maxim that the worst person to construe the meaning of a statute is generally the person who drafted it, because he tends to confuse what he intended to say with what he actually said—a maxim obviously to the point in Bingham's case—repeatedly cites and quotes Bingham to support his [Berger's] reading of that Amendment...
...Indeed, by accepting and supporting judicial review—the power of the Court to declare unconstitutional an act of Congress or of the state legislatures—Berger abandons the most effective way to control judicial legislation and prevent judicial supremacy...
...II In his recent book,* Raoul Berger addresses some but not all of these questions, particularly not the last, for his book is a wholesale indictment of judicial interventionism...
...but they must seek them in the legislative arena, not in the courts...
...The framers of the Amendment include all the members of the legislative bodies and all the citizens of the states who voted for it...
...A wise and prudent Court does not unnecessarily invite combat...
...they do not and cannot exist in the real world...
...Many of the voters in the states also seem to have read it that way, as evidenced by Berger's interminable quotations from congressional spokesmen who sought to persuade those voters that the Amendment did not mean what they took it to mean...
...Ronald Dworkin, Jerome Frank, H. L. A. Hart...
...for in a democracy judges should only apply, not make, the law...
...Those grounds entail precisely what Berger denies: the necessary (because unavoidable) interpretation of a law in accordance with social and ethical considerations—in terms, that is to say, of human consequences...
...Laws are of course made by legislatures, but in the nature of the case they cannot be made only by legislatures...
...William G. Niederland, letter to the New York Times, February 7, 1978...
...they are dragged into them by the failures—of omission and commission—of deficient administrators and negligent legislators, as the treatment of black prisoners in Alabama and Arkansas jails, of mental patients in Willowbrook, and of black schoolchildren still under the operative (though outlawed) "separate but equal" doctrine make only too clear...
...4 Holmes, op...
...But in ultimately ruling as they did, they decided that the "intense adverse emotional reactions" likely to be produced by the display of Nazi uniforms and swastikas, as psychiatrists argued,' is in effect less consequential than, say, shouting "fire" in a crowded theater...
...2 Nor does Berger report the fact that President Andrew Johnson—who might be expected to have known what his contemporaries in Congress were about—vetoed the Civil Rights Act of 1866 (which Berger himself argues was incorporated into the Fourteenth Amendment) because it attempted to fix "a perfect equality of the white and colored races...
...To be sure, individuals and groups invoke the name of justice when they seek to change the law...
...Judges should, in the American system, be bound by the Constitution...
...3 Not only has judicial legislation been the prevailing practice since the founding of the Republic, its reaches are far greater, and the opposition to its restriction more intense, than Berger seems to recognize...
...3. But Berger mistakes the meaning of justice...
...but their success or failure in that effort will turn, as Thrasymachus and Hobbes understood, not on the justice of their cause but on the power they are able, or unable, to muster in its behalf...
...225-26, 239, 184...
...Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them...
...Obviously, a writer need cite only references he deems requisite or useful...
...They have specified the manner in which teachers shall be selected, which schools shall be closed, where new schools shall be built, and even what sums shall be expended (thereby in effect dictating in some cases that additional taxes shall be imposed...
...and The Negro in 20th Century America, John Hope Franklin and Isidore Starr, eds...
...Whatever may be said of this judgment, the judges surely did not arrive at it by looking at the intention of the framers or the language of the First Amendment...
...Laws are to be made not by judges but by legislatures...
...6 Among other things, it created expectations that, when frustrated, drove the blacks into the streets and made possible the several subsequent Civil Rights Acts, including the Voting Rights Act of 1965, which enabled blacks effectively to participate in the suffrage and since then to gain an increasing share of political power...
...If a university is a center of intellectual inquiry, and if diverse points of view should be represented to promote that inquiry, it follows that professors of different persuasions should be appointed...
...For these and related documents, as well as the general history, see any of the standard anthologies: Civil Rights and the American Negro: A Documentary History, Albert P. Blaustein and Robert L. Zangrando, eds...
...What is true (and will be true) of the First Amendment in the Skokie case is true (and will remain true) of the Fourteenth Amendment in race cases, as the recent Bakke decision demonstrated only too well...
...freedom of religion does not sanction human sacrifice or polygamy...
...4 Berger thinks this is a monstrous notion...
...for in these struggles power, not principle, is decisive...
...And if this constitutes judicial legislation, at least it is in a right cause...
...The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious...
...And for this experience court watchers should look not at extreme cases to emphasize what is wrong but at the more numerous moderate or intermediate cases— the continuum—that disclose the governing practice...
...In all these rulings, neither the intention of the framers nor the language of the First Amendment was sufficient to determine the issue...
...Majorities, even when properly counted, are sometimes wrong...
...Blacks, along with everyone else experienced in democratic politics, understand this quite well...
...It is all too evident that if the Skokie case is ever fully argued on appeal, the Supreme Court's ruling will unavoidably turn on the justices' interpretation of the constitutive elements of free speech and of the proper balance between individual freedom and harm to others...
...It was elaborated in massive detail, for example, by Louis B. Boudin in a widely discussed twovolume work bearing the same title, Government by Judiciary, back in 1932 (also in an article with that title in 1911), as well as by Morris R. Cohen in a celebrated essay, "The Process of Judicial Legislation" (1914), and by Gilbert E. Roe in an unduly neglected book, Our Judicial Oligarchy (1912...
...This is why a vote for a general statute or amendment cannot be construed as an approval of each item in it, or as entailing an 196 identical understanding of the meaning or intention of each item...
...And no rights are inviolable: freedom of speech does not embrace libel or slander...
...hence judicial review by the Supreme Court, or some equivalent body, is essential...
...At this point, however, Berger's case completely collapses...
...But the blacks, along with others primarily committed to justice, wish rather to hear the voice of Jean Valjean...
...IV Berger thinks that the meaning of the Fourteenth Amendment, as of any law, is determined by the intent of its framers, and that, consequently, any judicial departure from that meaning constitutes an unlawful exercise of legislative power...
...for in applying the law (I have tried to show) judges must also make law...
...for it is, after all, the business of the courts to administer justice...
...203...
...Hence the cleavages that appeared in previous rulings will doubtless appear again...
...It does not follow that a Marxist, Thomist, Republican, Nihilist, Vegetarian, etc...
...It is rather to say that judges (and lawyers) need to be political craftsmen and not simply legal technicians...
...195 security, freedom of movement, the ownership and disposition of property, and access to the courts—not "political rights" or "unlimited equality across the board...
...This is not to say that the Court should avoid conflict at all costs...
...To establish this case, Berger focuses on the Fourteenth Amendment, the heart of the constitutional struggle for human rights...
...But many groups, and sometimes majorities, do not fully respect that claim, and legislative bodies have not provided effective and sufficient means to remedy that denial...
...The vital sentence in that Amendment is the following: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...
...In none of the enumerated rights, he said, "can any State ever exercise any power of discrimination between the different races...
...an even more important part consists in the establishment of its postulates from within upon accurately measured social desires instead of tradition...
...But rights always require redefinition, for new circumstances produce new claims...
...In this view, many white Americans avowedly committed to equality have nonetheless practiced (what is taken by its victims at least to be) a form of genocide with respect to the Indians and diverse forms of tyranny, not excluding wanton lynchings, with respect to the blacks...
...Hastily drawn Skokie ordinances prohibited public 198 demonstrations by "members of political parties wearing military style uniforms" and the distribution of any material that "promotes or incites hatred...
...BISHOP HOADLY, March 1717 Three problems continue to haunt democratic theory...
...But every university administrator worth his salt is conscious of the validity of this requirement and will (or should) do what he can to meet it...
...They require training in and knowledge of the social sciences...
...More pointedly, Holmes went on: I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage...
...I think it most important to remember whenever a doubtful case arises...
...He wants our judges to be moral and political eunuchs, exempt from human passions, social interests, and economic bias, and deciding cases only in accord with the revealed intentions of the framers...
...Judges, without warrant, have put them there...
...What Berger and critics of judicial interventionism too often forget is that the courts enter only by way of response to a plaintiff, who alleges he was unlawfully injured and asks restitution...
...Yet these and other exemptions have long been recognized...
...Otherwise they might well stretch their powers to the breaking point...
...Neither we nor the judges know the answer to this question...
...The social question is which desire is stronger at the point of conflict...
...Documents of American History, Henry Steele Commager, ed...
...How else, those judges argue, can they protect the rights of schoolchildren, prisoners, the mentally retarded, and others in situations where their violation is beyond dispute...
...Judicial legislation is thus unavoidable...
...And the second, apart from its difficult procedures, has not touched the crucial fact that the Court still retains the power to interpret the amendment...
...in 1948 a series of cases did away with racial restrictive covenants...
...Without further judicial intervention, even the rights they have seemingly secured will not be enforced...
...This elementary confusion undermines his entire thesis...
...Justice Holmes, to invoke one of Berger's gods again, understood this full well, saying: The true science of the law does not consist mainly in a theological working out of dogma or a logical development as in mathematics, or only in a study of it as an anthropological document from the outside...
...that what really is before us is a conflict between two social desires, each of which seeks to extend its dominion over the case, and which cannot both have their way...
...In a federal system the states cannot be allowed to override the Constitution...
...One is that the right method does not always produce the right results...
...But it remains true that to be bound by the Constitution judges must first know what the Constitution means, and this, I have argued, entails interpretation...
...even public ire may move the Court...
...Where power is divided, one obviously turns instead to an alternative power, seeking to correct a grievance not through petition or prayer but by playing one power against another...
...New York: Vintage, 1967...
...nor shall any State deprive any person of life, liberty, or property, without due process of law...
...In these matters experience, not logic, is the ultimate guide...
...2Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace, 1920), pp...
...But this enforcement has led the courts into an activist role seemingly outside their traditional jurisdiction and professional competence...
...rather, an appropriate penalty would be attached—confining the representation of that state in Congress to the white basis of the population...
...SCf...
...Consequently, while the justices will of course look to our legal traditions, they cannot escape weighing the facts and estimating the outcomes in terms of moral and political values not spelled out in the First Amendment...
...I shall argue, however, that Berger's singlefactor analysis is both primitive and pernicious...
...for Holmes also said (though Berger does not report this) that We must beware of the pitfalls of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present...
...V Constitutional law and statutory law, unlike natural law, are the products of human will...
...Second, while the principle of equity requires that justice is paramount in the case of a particular individual or class, judges may undermine the corpus furls and impair their credibility if they extend that principle unduly, if they apply it to too many cases too much of the time...
...When there is doubt, the simple tool of logic does not suffice, and even if it is disguised and unconscious, the judges are called on to exercise the sovereign prerogative of choice...
...They have mandated time schedules and stages of implementation, established review boards with considerable powers, and otherwise involved themselves in administrative minutiae...
...we do not inquire what the legislature meant...
...What Berger takes to be a piercing insight—that the Supreme Court often functions as a legislative body, not merely applying but making the law—is not a discovery but a commonplace...
...He is concerned not with black rights but with alleged judicial wrongs...
...This is not the place to reopen the old and probably inconclusive debate as to whether or not the framers of the Constitution intended the Court to have this power—the literature is vast and still mounting—though I must enter my own belief, contra Berger, that it was not clearly given to the Court...
...Given the existing state of injustice, Berger would have served a better purpose had he sought effective remedies to promote black rights, not crotchety doctrines to attack alleged judicial wrongs...
...New York: Washington Square Press, 1968...
...And most important, the Court makes law through positive action: by interpreting both the Constitution and statutes, it translates and applies the judges' understandings of those documents into law and social practice...
...I cite these—and could add others only because, like Boudin and Morris Cohen, they deal directly and insightfully with Berger's themes and contain many of the points and leading arguments he advances as well as counterconsiderations he ignores...
...for without it, the Court's "improper" rulings can readily be corrected by congressional legislation...
...For how, without such judicial intervention, could the blacks have secured, or hope now to secure, their just claims...
...and in 1950 the Sweatt and Mc Laurin cases practically outlawed segregation in public higher education...
...Where then does sovereignty reside...
...They would be wildly irresponsible if they did not, in consequence, take advantage of democratic pluralism to maneuver as best they can to get what they want...
...Berger cites none of these (or many other relevant) 197 works, nor the quotation at the head of this review...
...Berger says it was not necessary, for everyone understood its meaning...
...It is this power, consequently, that is at odds with democratic theory...
...But the first has proved to be little more than a temporary expedient...
...Far from ensuring the inviolability of what the Supreme Court and "liberal thinkers" have held to be the civil rights of blacks, Berger continues, the Amendment itself recognized that the states would violate them...
...This notion is erroneous...
...Consequently rules of judicial interpretation governing a constitution are, and must be, markedly different from those controlling a statute...
...But for Berger this is not so...
...He confuses it with power and law...
...The black plaintiff before the court has a right to redress, and judges cannot overlook his equity because the available remedies involve judicial legislation and administration, and recognition of his race...
...This is not only a judicial usurpation and prolonged misuse of legislative power, but also a violation of democratic principle...
...cit., pp...
...But in so painstaking a scholarly work --I count no less than 1,647 footnotes including 131 books and 108 articles--1 find inexplicable the omission of these and other leading items such as Rodney Mott's Due Process of Laws, E. S. Corwin's Twilight of the Supreme Court and Court Over Constitution, A. C. McLaughlin's Constitutional History of the United States, and W. W. Crosskey's Politics and the Constitution in the History of the United States, not to speak of the writings of a host of legal philosophers, e.g., Felix S. Cohen...
...Most important, a constitution evolves over time, altered (in keeping with the commonlaw tradition) less by formal amendment than by custom, what lawyers call "use and wont...
...Hence Brown v. Board of Education is not simply another legal case, to be debated by legal technicians and theorists...
...In the case of a statute...
...The Court makes law through inaction: by refusing to hear certain cases on appeal it affirms the rulings of lower courts and enjoys the added convenience of not having to give reasons that might expose it to criticism...
...All that can be ventured is a set of considerations relevant to such an answer...
...Due process of law" meant only ordinary legislative procedures, not the substantive doctrine that a statute is invalid if it is "arbitrary, capricious, or unreasonable," and did not incorporate the Bill of Rights...
...To ensure certain right results, a society may articulate and define rights, and even incorporate them in a constitution so as to put them beyond the reach of ordinary decision-making processes...
...This is why parliamentary debates are of limited value in determining the interpretation of a law, and why courts do not in practice rely exclusively (or even heavily) on that legislative intent...
...Judges are bound not by justice but by the Constitution...
...also Berger, pp...
...The Amendment was a bundle of compromises, with each of its crucial phrases the subject of hotly contested and prolonged debate...
...Here, for the first time, I must register certain agreements with Berger...
...It cannot be otherwise...
...1. A distinction must be drawn between judicial review in a federal system and in a system of coordinate branches of government...
...in every State of the Union...
...must be placed in every social-science department, only that qualified persons holding such outlooks should, where relevant, be represented in some degree...
...Power in a democratic system is an element within a social process, and that process is sustained not only by coercion but by a large measure of consent...
...Federal judges have responded not only by disallowing certain practices and arrangements that infringe upon those rights but also by prescribing positive actions to enforce them...
...This is understandable, for over the entrance to the Supreme Court we read the motto: Equal Justice Under Law—not Law (Equal or Unequal) Under Justice...
...Now, if Berger's reading of the intention of the framers of the Fourteenth Amendment is correct, and if judges are bound by that intention, then much if not all of our legal history under that Amendment will have to be jettisoned...
...Equal protection of the laws" sought only to bar statutory discrimination with respect to those rights protected by the privileges and immunities clause, and did not shift their protection from the states to the federal government...
...The words of that Amendment provide for no exemptions whatever, not even libel or slander or "fighting words" or a "clear and present danger" of ensuing violence or unlawful conduct...
...It has moved them from subjects to citizens...
...In democratic theory this determination, along with positive social action, is the business of legislative bodies, constitutional interpretation the province of the courts...
...VI To all these arguments Berger makes, in part, the same legalistic reply...
...It is a major political and psychological event, a revolutionary breakthrough in the long struggle for human rights and equal justice...
...To write of law and the judicial function without an adequate understanding of politics and power in a pluralist democracy, and of human conceptions of and yearnings for justice—as Berger does—is not only to move into a neverneverland but to invite disaster...
...RA number of earlier cases, beginning a decade before, did much to prepare the way...
...How many such persons in how many such departments is a contestable question, and no definitive answer can be given...
...The real issue, then, is not whether judges ought to legislate but the validity of the grounds on which they base their judgments...
...But interpretation entails remedies, for courts cannot explain and apply a right without also indicating an appropriate—or barring an inappropriate— course of action...
...statutes look more to immediate problems...
...Thus, as the "final arbiter" of what may or may not be done—a point to which I shall return—the Supreme Court has become a near-sovereign power...
...For the Court to take a position that alienates popular consent is to ensure the opposition of countervailing powers...
...the President can affect the character of the Court by his new appointments or impair its effectiveness by refusing to enforce its rulings...
...Why then did the 39th Congress not alter the language of the Amendment to make clear what was evidently unclear...
...2. Berger roots much of his argument in what he takes to be historical facts, but he lacks a crucial historical insight: an insight into the perspective of a minority, especially 199 black, perspective on American law and politics, and consequently on contemporary judicial practices and political possibilities...
...1. Where power is concentrated in a single place, one can only appeal for redress to the very power that has already inflicted the injury—hardly a promising prospect...
...For these and other reasons Chief Justice Warren was surely right to have held the historical evidence "inconclusive...
...the Public Interest, Winter 1978, pp...
...Finally, since the Supreme Court is a political and not merely a legal institution, a further test of proper judicial interventionism is the amount of opposition it arouses...
...nor deny to any person within its jurisdiction the equal proteclion of the laws...
...An academic analogy may help to make this clear...
...The sociopolitical significance of these cases further demonstrates Berger's unrealistic notion of the judiciary as simply a technical legal body...
...Since, then, justice so conceived is not a matter of abstract right or utility but solely what the law declares it to be, Berger's notion of the proper judicial role—what is pietistically called the administration of justice—is to apply that law as it is...
...There are advantages in conflict...
...Nor does their language distinguish between symbolic and actual speech, or between speech to promote political discussion and speech to provoke violent action...
...But such creatures and imputed roles are figments of Berger's imagination...
...VII Many years ago an English judge, Edward A. Parry, opened his book The Law and the Poor (1914) with this sentence: "The rich have many law books written to protect their privileges, but the poor who are the greater nation, have the few...
...Thus, in Smith v. Allwright (1944) the Supreme Court outlawed the Texas white primary (and, more significantly, paved the way for the Brown case by also rejecting the doctrine of stare decisis in the realm of constitutional law...
...much less does it engage in activities that threaten the community's or its own survival...
...What indeed are the standards or guidelines that demarcate the areas or situations in which judges may properly assume an activist role, and that govern the range and degree of such interventionism...
...we ask only what the statute means...
...But the more evident and realistic controls are internal to the judiciary itself, primarily the accountability of lower courts to the Supreme Court and the principle of judicial self-restraint...
...It has given blacks greater, if not yet fully equal, access to educational— and thus economic—opportunity...
...Finally, who is to resolve the tension between majority rule and constitutionally stipulated or newly asserted rights...
...As a result, the Supreme Court exercises a vast legislative power...
...But now he adds a crucial argument: that if judges are not so bound, if they are free to do whatever they will, our 200 system will be converted from a government of laws into a government by a lawless judiciary...
...but a people and its governments are not always enlightened...
...Surely "the framers" cannot be reduced to the person of the draftsman of the Fourteenth Amendment, John A. Bingham, whom Berger in unwary moments describes as "a confused, imprecise, and vacillating witness," a man "given to windy oratory" and "frequent shifts of position...
...indeed, our system is based on it, for where there is a Constitution there is 202 already a built-in tension between temporary majorities and a Court charged with the maintenance of that Constitution...
...Legislators and citizens may have disliked some parts of the Amendment, may have held different understandings of its many provisions, yet may have voted for it because, by and large, for one reason or another (given the fact that they had no power to select freely the provisions they approved and to reject those they did not), its advantages as they diversely understood and judged them seemed greater than its liabilities...
...What then becomes of the separation-of-powers doctrine...
...for, unlike Boudin and Cohen, he fails to understand that what is required to subordinate the judicial to the legislative will is the elimination not of judicial legislation but of judicial review, an entirely different principle...
...This is why, despite the Fourteenth Amendment, almost every judicial decision prior to 1954 on matters of race--e.g., Plessy v. Ferguson (1896), which held constitutional the "separate but equal" doctrine—has been but another obstruction to their legitimate aspirations, as have also political practices and arrangements that excluded blacks from the suffrage and hence from attaining their goals through channels readily accessible to others...
...It makes law through negative action: by vetoing or threatening to veto statutes enacted by national and state legislatures, the Court sets the contours of public policy, limiting what those legislatures may do by telling them what they may not do...
...Other controlling devices are of course available: Congress can limit the Court's appellate jurisdiction or expand its size...
...The law, made by those in power, determines what is just...
...Each of the phrases I have underscored may appear to the ordinary reader as somewhat vague and ambiguous, requiring judicial explication...
...Hence the precarious status of human rights...
...Governments, even when representative and accountable, are sometimes oppressive or unwise...
...But even if it were conclusive, it would not in itself decide the meaning of that Amendment...
...Since the law, like politics, is not a mathematical science but an art—a product of compromises among conflicting power groups and interests, and hence less the incorporation of a coherent philosophy than a series of mutual adjustments that permit community survival—a clear answer to these questions cannot be vouchsafed...
...It is no great testimony to Berger's scholarship that, in arguing to the contrary, he quotes selectively from such distinguished Supreme Court justices as Holmes to establish that intention is both meaningful and binding...
...The Nazi party sought to parade and display the swastika in Skokie, Illinois, a predominantly Jewish suburb of Chicago, whose residents include several thousand victims of Nazi concentration camps...
...In consequence blacks have turned to the courts...
...The issue is not whether the judges are doing these things badly or well, but whether they should be doing them at all.' If they should do them at all, does it follow that they should do all of them all the way...
...Nor can "the framers" be the handful of congressional leaders whom Berger also invokes at length, including Thaddeus Stevens, leader of the Black Republicans, who said on the floor of the house to Bingham: "In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says...
...2. This notion also mistakes the nature of the judicial process...
...The courts do not "invade" the legislative and administrative realms...
...in Morgan v. Virginia (1946) the Court declared invalid state laws requiring segregation in interstate buses...
...and Julius Stone...
...Finally, Berger notes, even the enforcement of the Amendment was specifically entrusted to Congress, not to the Supreme Court...
...194-95, 207...
...To the degree that they are called upon to interpret the law, such interpretation should be limited by the intent of the legislature that enacted it...
...it has not altered the power of the Court, only (occasionally) its personnel and (for a time) its social and political direction...
...Berger, however, treats the Fourteenth Amendment, a part of our Constitution, as if it were a statute...
...In school desegregation cases, for example, judges have redrawn district lines and ordered that children be assigned and transported to schools on the basis of race—to some critics a violation of the principle, asserted in Brown v. Board of Education (1954), that the Constitution is color-blind...
...It reminds the judge that while he must at times wear the legislator's or administrator's hat, he should not do so regularly, He is primarily a judge, and as such must always look to the preservation and (as far as possible) coherence of the legal system...
...Who can say—especially in the age before public opinion polls and psychoanalysis— what motivated each legislator and each individual voter in the several states finally to support the Amendment as a whole, and what each intended the Amendment to mean, or thought it meant...
...Blacks (and other racial or ethnic minorities) claim an equal entitlement to the rights of citizens...
...To discover what each of them intended that complex Amendment to mean is simply impossible...
...2. These internal controls are at the center of the final, and perhaps most important— surely the most difficult—question: What if the justices do not properly exercise those internal controls...
...Who shall determine, in concrete cases, what those rights are, who shall possess them, and what is required to enforce them...
...Their remedy is political, not judicial...
...I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them...
...Everyone—including President Johnson and many (Berger does not ask how many) of the voters...
...Such white Americans hate and fear the blacks and do not intend to admit them into politics, education, and society as free and equal persons...
...Do such ordinances violate the constitutional protection of free speech and free assembly...
...and whether, and how, and in what order of priority, one social ill rather than another shall be treated...
...They bear a direct relationship to power and an ambiguous relationship to justice...
...Every critique of this practice, and every attempt to curb or otherwise control it, has foundered on an intractable reality: popular and congressional resistance to interference with what is taken to be the independence of the judiciary...
...rather, we do not know because the judges do not know...
...It rests on "fundamental" principles concerned with enduring issues...
...In this perspective, to decry the Brown case and other decisions furthering civil rights—as Berger does—is to seek to turn back the clock...
...The simple intention of the framers to protect critics from governmental suppression cannot dictate that determination...
...But in an unjust society, or in a society where blacks are treated unjustly, the first item of business is to secure justice, to achieve the right results...
...Blacks should, he avows, have the rights they claim...
...Moral and political considerations always play a compelling role in judicial deliberations and findings, as may be evidenced by a case in the headlines even as I write these lines...
...In all these and similar cases, the Constitution may be colorblind but the remedy cannot be...
...64-80...
...Notes 'For some of the problems, see Nathan Glazer, "Should Judges Administer Social Services...
...Now they essay the positive direction of social policy, transforming themselves in the process into sociologists, social workers, penologists, educational and hospital administrators, fiscal managers, and the like...
...The judges disagreed as to whether such exemptions applied in this situation...
...Once judges limited themselves 194 to a largely negative function, setting standards to which governments were expected to adhere, and articulating basic rights and freedoms with whose exercise governments were not to interfere...
...laws should be enacted by legislatures...
...In these ways, and with respect to other institutions and practices as well—apportionment, prisons, mental hospitals, even systems of local government— they have determined configurations of power and the distribution of resources...
...justice, a product of knowledge and wisdom, does not determine what is law...
...A constitution consists of general provisions, designed to accommodate a multiplicity of specific statutes...
...as it would not be, he argues, for anyone familiar with the common uses of language and with the explicit statements of the leading protagonists in the debates—both in the 39th Congress and the states...
...1. It confuses a constitution with a statute...
...and impeachment, since Jefferson, always stands over the justices like a Damocletian sword...
...But as one of three branches of the government, it is not easy to see why that power is required—apart from certain technical considerations, e.g., Marshall's refusal to accept the writ of mandamus in original proceedings so as to protect the Court's autonomy as a coordinate branch of the government...
...What is necessary to note is that this power, which the Court exercises, makes possible the "absolute authority" of which Bishop Hoadly spoke and that enables the Court to become the "final arbiter" constitutive of near-sovereign power...
...If they do not enforce those rights—which is what they are required to do—who will...
...Dooley said—of the election returns) or constitutional amendment...
...In a just society, perhaps for whites in a society where by and large they are treated justly, the right method is obviously crucial...
...What are the standards appropriate to their work...
...The real issue, then, if we are to avert rule by a judicial aristocracy, is to control that judicial rendering by subordinating it to the legislative will...
Vol. 26 • April 1979 • No. 2
