Law of the Land

...But when a statute penalizes free speech, there should be a presumption of unconstitu-tionality, for the First Amendment leaves nothing to speculation or theory—it explicitly prohibits abridgments of freedom of speech, "in absolute terms and without reservation...

...On the contrary, the work of judicial review has brought about the feeling among Americans "that the actions of government, even when disapproved of, are authorized rather than merely usurpative...

...In the end, then, Black's examination of judicial review takes on the broad aspect of a consideration of fundamental liberties in a democracy and their vindication through institutional devices...

...But Black points out that the people "who need the Bill of Rights need it because they cannot prevail in the 'political process' " and because often the wrong from which they suffer "amounts to an exclusion from the 'political process.' " Black does not, of course, defend the pre-New Deal Court, which invalidated some important acts of Congress, including those dealing with railroad pensions and farm mortgages, the NRA, the AAA, and the Guffey Act...

...The book is a notable contribution to political and constitutional thought...

...And it should not be enough, to sustain the exception, to prove merely that the legislature had a "rational basis" for passing the act —the test must be "a higher ra-tionalitv," for the freedoms of the Bill of Rights have "an altogether larger scope" than other rights exercised by government...

...Frankfurter's rationale of judicial restraint has sometimes been the con tention that minorities who feel themselves to be adversely affected by acts of government officials should not run to the courts for relief but should seek correction through the "political process...

...The power to invalidate acts of Congress is...

...Without involving himself or his argument in specific Supreme Court decisions or personalities, Black examines the historical data and concludes that there is no evidence that judicial review is the result of an act of usurpation on the part of the Court...

...The author denies that judicial virtue can be exhaustively defined in terms of judicial self-restraint...

...Since ours is a government of limited powers, there must be an agency that performs the function of validation and invalidation of legislative and executive acts, and this function has been taken on by the Supreme Court, and "the necessary measure of acceptance has been achieved...

...Despite this record, the question of judicial review of Federal legislation is still one over which judges and law professors easily get exercised...

...Reviewed by Milton R. Konvitz Professor of Law, Cornell University SINCE 1937, when President Franklin D. Roosevelt proposed, in a message to Congress, that the United States Supreme Court be "packed" with six new justices whom he would nominate, the Court has invalidated only two or three acts of Congress...

...for on the whole "the prime and most necessary function of the Court has been that of validation, not that of invalidation"—"the most conspicuous function of judicial review may have been that of legitimatizing rather than that of voiding the actions of government...

...Although Black does not mention Justice Felix Frankfurter in the context of his argument on this crucial point, readers can easily see that it is mainly against Frankfurter that the weight of the author's argument is directed...

...then, a live issue, and all students of public affairs should be grateful to Charles L. Black Jr., Luce Professor of Jurisprudence at Yale, for a scholarly, objective, dispassionate examination of the subject...

...The presumption in favor of constitutionality should have worked effectively in those cases...

...Black points out that the guarantees of the Bill of Rights are in the form of prohibitions, and these prohibitions he would interpret broadly and would leave "no alternative to vigorous, courageous activism on the part of the Court in applying them...

...This is so, not because of memories of the past, but because a minority of members of the Supreme Court have frequently dissented from decisions that have upheld Congressional statutes as constitutional...

...While some reservations must be read into the language of the First Amendment, the burden of justifying the exception must be on the government and not on the citizen...

...In those cases the Court did not have before it express prohibitions of the Constitution but rather "speculative" or "theoretical" constitutional language...