Judicial Mandates & 'Mythic Incantations':
IVES, C. P.
Judical Mandates & 'Mythic Incantations' The American Supreme Court. By Robert G. McCloskey. Chicago. 260 pp. $5.00. Reviewed by C. P. Ives Editorial staff, Baltimore "Sun" The thoughtful...
...When the Supreme Court in 1954 attempted to achieve by mere judicial mandate what the Federal armies had failed to achieve a century ago, the population north and south had been under unremitting scholarly assurance for three decades that the words of the Court had no mystical authority...
...The Court was silent from 186165, but came to vigorous life again with Justice David Davis' declaration against the excesses of martial law in the Milligan case...
...There are seven brief and lively chapters which take the Court from the Constitutional Convention, the Federalist Papers and the Judiciary act of 1789 to today's conflict between the "judicial activists" and the "self-restrainers" on the Warren Court...
...He recognizes that it was a Marshalllike assertion of power, but fears it was supported with something less than Marshall's persuasiveness...
...The older judges were a "priesthood" which "more than half believed the mythology it had helped to create...
...The people had been conditioned to believe that the judges were merely men, as frail as the rest of us, and that the Constitution, far from fixed and objective in its meaning, was only the fitful reflection of their private whims...
...The Marshall Court, he assures us, functioned by way of a "bag of tricks...
...Reviewed by C. P. Ives Editorial staff, Baltimore "Sun" The thoughtful layman looking for a scholarly but highly readable account of the Supreme Court and its role in American history will find it in Robert McCIoskey's survey...
...and some will go on, if not to reassert the old Marshallian views, at least to concede how central they were to the magisterial accomplishments of "the great Chief Justice"—and, just possibly, to any really viable constitutionalism...
...Marshall himself festooned a key decision with "trimmings drawn from the natural law tradition...
...Courts are the mere instruments of the law, and can will nothing themselves...
...Sanford, a decision which temporarily fortified the slaveholders by nullifying the Missouri Compromise of 1320...
...Up to this point, McCloskey is unfailingly jocose about the Marshallian concepts and techniques of judging...
...Such talk, to McCloskey, is "mythic incantation" and "not many sophisticated persons would now take these words very seriously This is a perfectly accurate statement, but by a strange and worrisome paradox the new jurisprudes have been bathing the old certitudes in "cynical acid" at the very time the Justices are mounting their boldest pronouncements...
...Board of Education, ordering the desegregation of the public schools and invalidating the concept of "separate but equal...
...We learn how John Marshall established the Court's power to invalidate state legislation, proclaiming the growing authority of a truly Federal system...
...McCloskey himself regrets that the Court did not speak at least with Marshallian accent at the time...
...After 1937, with a more than Federalist federalism established and capitalism tamed, the Court reacted to totalitarian enormities—of both right and left—with new zeal in behalf of civil liberty and racial equality...
...The story culminates in Brown vs...
...The gradual fashioning of due process into a substantive shield for business enterprise is skillfully presented, as is the discarding of these concepts during the New Deal years...
...If you urge on the Attorney General of Louisiana judicial mandates which you simultaneously assure him are only mythic incantations, he may he just sophisticated enough to prefer your assurance to your exhortation and govern his official conduct accordingly...
...We follow Roger Taney's careful consolidation of Marshall's power until unjudicious hubris led him to the debacle of Dred Scott vs...
...It is the somewhat belated recognition of this sombre incongruity between the uses urged for the judicial process and the corrosions worked on its philosophical underpinnings that is bringing a change in the tone of jurisprudential commentary...
...He held —or at least he proclaimed—that "judicial power, as contradistinguished from the power of the laws, has no existence...
...The men who follow McCloskey will be less lighthearted in disclosing the gap...
...McCloskey approves the ends sought in this historic case...
Vol. 44 • May 1961 • No. 19
