Supreme Law of the Land

...The author, an authority in the field of comparative law, has long been a student of the law and legal institutions of England and the Continent...

...For American readers, this book on constitutional law compares favorably with older scholarly works on the subject by Andrew C. McLaughlin, Carl Brent Swisher and Benjamin F. Wright...

...In doing this, Congress has merely followed the logic of the Dennis case and the reasonableness test...

...Schwartz, as I have said, accepts both the reasonableness test and the preferred-position doctrine on different pages of his book...

...Clearly, it has by implication rejected the view that the Bill of Rights occupies a preferred position in the Constitution...

...I can understand the logic of this development, though I do not approve of it...

...In a democratic system, he says, the primary responsibility for determining when speech will create a clear and present danger "must surely lie with the elected representatives of the people...

...What we have said should suggest the thought that the book by Professor Schwartz, while written for British readers, can be read with equal profit by American students of public affairs...

...From the constitutional point of view, says Dr...

...But Dr...

...About half the book is devoted to a discussion of the American political system (Federal-state relations...

...This book is an excellent demonstration of the usefulness of the comparative law method in the analysis of legal problems...

...For the British people, and the people of other democratic countries, have often faced the same problems that we have, and in similar situations, and so we may benefit from their successes and failures, even as they may from ours...

...Intellectual isolationism is no more defensible than is isolationism in world affairs...

...I wish he had put them on the same page and had pushed his critique to deeper layers of thought...

...Furthermore, the reasonableness test requires the proof of a negative proposition-i.e., that the statute under constitutional attack is, in the words of Justice Brandeis which the author quotes with approval, "so clearly arbitrary or capricious that legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare...

...This test, I submit, makes it impossible for a court to declare a legislative act unconstitutional...

...The book offers the essential data and some criticism, and is written in a (luid style...

...for it is no farther from New York to London than it is from London to New York...

...But let me say once more: Professor Schwartz has written a notable book, which we should welcome as a contribution to scholarship in constitutional theory and practice and in the field of comparative law...

...Congress, the President, the courts) ; the remainder is concerned with some selected modern developments...

...But Dr...

...author, "Bill of Rights Reader" "Constitution and Civil Rights" THIS BOOK on American constitutional law, by Professor Bernard Schwartz of New York University School of Law, was written primarily for British readers...

...If the Supreme Court is not to become again a super-legislature, it must sustain statutes as constitutional unless they "transcend the bounds of reason"-unless, that is, they are clearly arbitrary or capricious...

...It has thus attempted to withdraw the question from the courts altogether...

...While the author's criticism and evaluation of constitutional institutions, doctrines and developments are on the whole forthright, now and then they seem not to go far enough...

...Schwartz, the statute is unassailable...

...For, he says: "It is not for the American courts to upset legislation designed to deal with the Communist threat merely because they differ from the Congressional judgment on the gravity of the threat...

...One can hardly agree with both Justice Frankfurter, who emphasizes the reasonableness test, and Justice Douglas, who rejects this test and takes his stand oil the preferred position of the Bill of Rights...

...A test of mere reasonableness hardly meets the demands implied in the preferred-position doctrine...

...Congress in recent enactments has itself declared the Communist party to be a clear and present danger...

...Schwartz also believes that the founders of the Constitution gave a preferred position to liberty-in their balancing of security and liberty, they "gave a preferred position to the latter...

...and so it nullifies the preferred-position doctrine...

...Consider, e.g., his treatment of the convictions of leaders of the Communist party, and the decision of the Supreme Court in the Dennis case, which upheld the judgments and the constitutionality of the Smith Act...