Frankfurter and the Liberals

...More recently, and particularly since the school segregation cases, they have found it a useful adjunct to democracy...

...Of course, as a private citizen, Frankfurter found the flag salute offensive when imposed upon those who view it as bowing down to graven images...

...Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime...

...No one claims that Frankfurter—or, for that matter, Holmes—never violated the canon of judicial selfrestraint...

...But surely there is some merit in both positions...

...It appears that time has not dimmed the relevance of Justice Brandeis' admonition to the Court: ". . . in the exercise of [our] high power, we must ever be on guard, lest we erect our prejudices into legal principles...

...Wallace Mendelson, Professor of Government at the University of Texas, is author, of the recent study, Justices Black and Frankfurter: Conflict in the Court...

...As he reads the due process provision, it gives "property" no substantive protection whatsoever...

...Against such shifting standards, many judicial reputations have been up- or down-graded to meet the latest gyration in the liberal or conservative party line...

...In this context Frankfurter's willingness to let the people rule brings illiberal results...

...The difficulty is that neither is defined in the Constitution, and each is subject to abuse...

...It comes to this: Whatever the relative liberalism of courts and legislatures, the people should be free to govern themselves—well or badly—with a minimum of judicial interference...

...On these and similarly mundane problems the majestic generalities of the Constitution give no guidance...

...Obviously, too, these are not essentially legal issues "in the sense that legal education and lawyers' learning afford peculiar competence" for their solution...

...Shall doubts be resolved by a handful of "independent" judges whose libertarian or proprietarian preferences happen for the moment to dominate the bench...

...The point is not that Justice Black is inconsistent, but that his standards must come from somewhere other than the language of the Constitution...

...For him a man's private values are one thing, his duty on the bench quite another...

...Justice Holmes found this imposing generality so ambiguous that he called it a "void.' Obviously it gives not the slightest hint of a standard for determining what salutes and what wages or working hours, if any, are subject to governmental compulsion...

...Both the new liberalism and the old conservatism have been quite capable of rationalizing their divergent positions...

...We may deem it a foolish measure, but the point is this Court is not the organ of government to resolve doubts as to whether it will fulfill its purpose...

...So, too, in some contexts free speech is the equivalent of force—as when one falsely shouts "fire" in a dark and crowded theater...

...Libertarians obviously disagree...

...Only if there is no doubt that any reasonable mind can entertain can we deny to the states the right to resolve doubts their way and not ours.' In this Holmesian view, a judicial veto of legislation is permissible only in cases so extreme that they leave no room for doubt among reasonable men...

...But is it the Constitution that outlaws the one and upholds the other, or is it merely liberal bias that does so...

...But compared with today's libertarians and yesterday's proprietarians, his intrusions upon the democratic processes have been slight...

...Now the crucial issues before the Court involve conservative "security" regulations...

...In Frankfurter's view restraint and objectivity is the rule for all who have the power to frustrate the people's groping efforts to attain their own conception of the good life...

...In the early days Frankfurter thought judges should not "govern" in favor of property, and for the same reason he now thinks they should not "govern" in favor of libertarianism...

...Justice Hugo L. Black, the current hero of liberalism, disagrees completely...

...Or, as Justice Holmes and now Justice Frankfurter insist, by the people and their elected representatives with a minimum of judicial interference...

...In what may be his most deeply felt judicial opinion he wrote: "One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution...

...Yet for Justice Frankfurter, it is not the immediate result, whether liberal or conservative, that is paramount...

...Ironically, for acting on this belief Holmes, a thorough conservative in private life, was considered a liberal on the bench, while Frankfurter, a liberal in private life, is considered a judicial conservative...

...Property and personal liberty are basic to the American way of life...

...In other words, uncertainty is to be resolved in favor of the view taken by the elected branches of government, which are answerable directly to the people...

...In the 1920s, when he was a professor at Harvard Law School, Frankfurter (like Holmes) earned a liberal reputation by criticizing judicial interference when, for example, a state enacted maximumhour or minimum-wage legislation...

...In doing so, he had acted on Holmes' great precept: Judges "must learn to transcend [their] own convictions...

...In others it is simply inappropriate—for example, a noisome packing plant in the midst of a fine residential area...

...And slander, obscenity or even mere verbal noise can often be obnoxious enough to override the virtues of unfettered utterance...

...In other settings it also is out of place—as in the case of a political harangue that disturbs the quiet of a hospital...

...Before 1937, when the Supreme Court was generally more conservative than the various legislatures, liberals found judicial veto of legislation grossly undemocratic...

...Conservatives, of course, have changed conversely— the Court that was once their darling is now their villain...

...In some contexts private property amounts to robbery— as when a private monopoly controls a basic industry...

...Holmes' willingness to let the people prevail brought liberal results...

...But] I cannot bring my mind to believe that the 'liberty' secured by the [Constitution] gives this Court authority to deny to [a state] the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by the means here chosen...

...Off the bench Felix Frankfurter was, and is, one of the great liberals of our day...

...No one knows this better than Justice Felix Frankfurter, who has lost caste with liberals not because his view of the Court's function has changed, but because theirs has...

...Indeed, to borrow Holmes' description of the old Court's efforts on behalf of "property," apparently only the sky is the limit...

...Because conservatism is now in the legislative saddle, judicial neutrality often leads to conservative results...

...Frankfurter, then, would leave such matters to the people and their elected representatives—subject only, in deference to our ancient tradition of checks and balances, to that orthodox and minimal judicial safeguard mentioned in his flag salute opinion...

...Surely reasonable men may disagree on the wisdom of state-imposed flag salutes and labor standards...

...It is the sanctity of the democratic process...

...For doubt entails choice, and in a democracy choice is the province of the people...

...At least that is what was said of some of his predecessors who not so long ago found conservatism imbedded in the same due process clause which Black now finds the embodiment of libertarianism...

...In Holmes' day, the crucial issues before the Court involved liberal legislative efforts to regulate business...

...In 1922, when he struck down a minimum-wage requirement for female workers, Judge Van Orsdel said: "Of the three fundamental principles which underlie government and for which government exists, life, liberty and property, the chief of these is property...

...Perhaps a few concrete cases will illuminate these generalities...

...And only if a judge's job is to enforce his personal convictions, can he be accused of apostasy to the liberal cause...

...In both instances the common denominator has been Justice Oliver Wendell Holmes' principle of judicial self-restraint...

...As a matter of fact, both issues are governed by the same constitutional provision: "No State shall deprive any person of life, liberty, or property, without due process of law...

...Later, as a Supreme Court Justice, Frankfurter was condemned by liberals for urging the same judicial restraint when a state tried to compel a flag salute in public schools...

...In this view, the compulsory flag salute is clearly unconstitutional...

...On the other hand, he finds the companion term "liberty" in the same constitutional provision highly effective in promoting the libertarian cause...

...Frankfurter then indicated his conception of the permissible scope of judicial intrusion upon legislative policy: "We are told that the flag salute is a doubtful substitute for adequate understanding of our institutions...

...Each has insisted that its claims are "fundamental," and thus occupy a "preferred place" in constitutional law...

...Where, then, shall the line be drawn between freedom and its abuse when the Constitution leaves room for doubt...

...And who shall draw it...