Committed to Reason
MENDELSON, WALLACE
Committed to Reason THE PARADOXES OF FREEDOM By Sidney Hook California. 152 pp. $4.95. Reviewed by WALLACE MENDELSON Professor of Government, University of Texas Should judges try to save...
...Conversely, of course, the conservative view of the Court has shifted from one of adoration to distrust...
...Yet how can democracy prosper, how deep is our respect for it, if we do not trust it with fundamentals...
...This puts ultimate control in a minority of one-third plus one, and thus substitutes a new form of minority control for an old one...
...You may be sure The Paradoxes of Freedom does not fall in the latter category...
...A book that is bound to offend so many people with different outlooks must be either exceptionally good or unusually bad...
...Recent American history suggests that the "liberal" attitude toward the judiciary varies with the relative liberalism of the Supreme Court...
...More recently (especially since the desegregation cases), liberalism has found judicial review a useful adjunct to democracy...
...How can democracy work if its fundamentals— free speech, for instance—are not preserved by judicial roadblocks against hostile legislation...
...Indeed, to rely upon others to save us from our own folly is to repudiate the moral foundation of human liberty...
...Yet Professor Hook does not follow his logic to its obvious conclusion...
...While Hook considers Frankfurter's guiding principle more compatible with democracy than the views of Justices Black and Douglas, he still finds it unsatisfactory: "It cannot formulate a clear and valid criterion to justify its interposition...
...Before 1937, when the Court was generally more conservative than legislatures, most liberals found judicial review thoroughly undemocratic...
...And those in between who see wisdom in Justice Frankfurter's principle of judicial self-restraint also will not be pleased...
...Recognizing that judicial review is an established part of our governmental tradition, he would not abolish it...
...In fact, the major thrust of this book is directed precisely, and devastatingly, at them...
...Finally, those who with Jefferson believe in majority rule—Hook says he himself is among them—will resent the suggestion that Congress should have power to override the Court by a two-thirds vote...
...His effort will of course alienate the absolutist libertarians—Alexander Meiklejohn, and Justices Hugo Black and William Douglas, for example...
...In the world of morality, as elsewhere, we do not get something for nothing...
...If this should not prevent "serious conflict between Congress and the Court," he would favor Congressional power to override the judges by "a two-thirds vote of all elected members in both houses...
...These are the oldest, most basic and most tantalizing problems in constitutional law...
...The price of freedom is responsibility...
...Hook fears that he has written a book that will please nobody...
...Reviewed by WALLACE MENDELSON Professor of Government, University of Texas Should judges try to save us from ourselves or leave us free to leam the lessons that come with trial and error...
...Nor will ultra-conservatives find much comfort in the book, for they will surely consider Hook's deepdyed commitment to democracy and human reason thoroughly offensive...
...Unfortunately, the author does not spell this out, and gives no evidence whatsoever to support it—which may make some scholars wonder whether in fact he understands the Frankfurter approach...
...Sidney Hook is one of those oldfashioned liberals whose conception of the role of judges in a democracy has not changed...
...As he sees it, the essence of self-government is, after all, self-government and not a nursemaid who lets the children play, if they behave...
...in the past, but, with respect to Congressional legislation, their opinion should have nullificatory force only when it is unanimous...
...He is too pessimistic...
...In this view, freedom includes freedom to make mistakes—a far too important function to be exercised by guardians...
...To achieve a more perfect democracy, however, judges "should continue to function as they have...
Vol. 46 • February 1963 • No. 4
