Harvard Review

Despite what you may have heard from your friends at the Law School, law can be interesting--especially if it is being discussed by non-lawyers. Although the articles in this issue of the Harvard Review have no unifying theme except "Law," they do as a group support the contention that the people who write best about the law are those outside the profession.

The first two articles, both by teaching fellows in Government, are the heart of the issue. They are better written, more thoughtful, and better reasoned than the other three contributions, by a lawyer and two law students; and they deal with far more significant issues.

Sanford Levinson's article, "The Supreme Court: Does It Have an Innovational Role?" is provocative, although, like Frank Sullivan reading Van Wyck Brooks, "I have been rendered cockeyed by the footnotes" (83 of them). Levinson defends the concept of an activist, innovational Supreme Court by attacking the two most distinguished advocates of judicial restraint, Holmes and Frankfurter.

His attack on Holmes is two-fold. First, he questions Holmes's "mixture of over-simplifications concerning the nature of law and truth," and second, his "monumental complacency in regard to the society around him." The second point is mostly a matter of interpretation, but the first deserves exploration. Holmes was a philosophical skeptic and a social Darwinist. To him, there was no such animal as "Truth." To Holmes the philosophical skeptic, "Pleasures are ultimate and in case of difference between on self and another there is nothing to do except in unimportant matters to think ill of him and in important ones to kill him." To Holmes the social Darwinist, this kind of "survival" of ideas was the best test of their truth. If a legislature passes a law, then why should the Court strike it down? Its very passage is a testament to its "truth."

Debunking Holmes

There are two ways to refute this position. Levinson chooses the argument from reality: whatever the philosophical objections to reason, it still plays a role--though admittedly a limited one--in human affairs. Holmes over-reacted to the naive beliefs in REASON and TRUTH of his opponents on the Court, and went to the other extreme in denying any corrective powers to the Court. Levinson argues that the Court might bring some reason to bear in bolstering democratic values against the attack of a faint-hearted public, preserving the "rule of law," and protecting long-range values when other branches are more concerned with immediate expediencies.

But because such a criticism relies on the assumption that "good guy" justices will inhabit the Court, I think a better criticism of Holmes would have gone in the other direction: take his philosophical skepticism to its conclusions and show how it conflicts with both social Darwinism and judicial restraint. Social Darwinism, after all, assumes that that which does survive ought to survive, which is heresy to a philosophical skeptic. The jungle or the "market place of ideas" is as arbitrary a source of truth as the Bible or the Constitution. And Social Darwinism also collides with judicial restraint because the Court has as much "power" to strike down laws as legislatures has "power" to create them. Levinson's first point, that Holmes wasn't so philosophically sophisticated after all, is solid.

As Levinson implies, Frankfurter is not subject to either of these criticisms of Holmes. Frankfurter's social concern and activity was one of his most salient qualities. And he did not share Justice Holmes's skepticism. Indeed, he had a passionate, "almost childlike," belief in democracy. But, while this belief may be consistent with a belief in judicial restraint, it is not consistent with the realities of life. What Professor How calls Frankfurter's "innocent misjudgment" that "his intensities were matched in most other human beings" might be seen by a less sympathetic critic as blatant unrealism--more appropriate to someone who didn't read the newspapers than to a man of life-long political activity.

Frankfurter Unrealistic

Levinson's main criticism, however, and his justification for an activist court, is that Frankfurter didn't realize how much a part of the political process the Court is. He shows that the Court, in fact, legitimizes laws that it upholds. The effects of its rulings are the same as if it were passing on the wisdom of laws, even though it would like to pass only on their constitutionality. Conversely, the Court is subject to political checks. To talk of its imposing its will against the will of a determined public is to neglect the powers of amendment, limitation of jurisdiction, packing, and new appointments by a popularly elected president.

My primary argument with the article as a whole is its relative treatment of Holmes and Frankfurter. Holmes is attacked with vigor; but Frankfurter gets a half-sympathetic treatment. This is difficult to understand. However questionable Holmes's reasoning, the results were liberal: he wanted to uphold progressive laws. Moreover he wanted to strike down more of the illiberal laws than anyone else on his court, with the possible exception of Brandeis. It is Frankfurter, on the other hand, who did the damage. He served in a period when upholding progressive economic laws was no longer a question, but upholding deprivations of political rights was. His vote upheld a number of these (some of which were five to four decisions) and, unlike Holmes, he stood close to the right wing of his Court on civil liberties questions.

Smuggled Lovers

Barney Frank took on a much easier task in defending the Court's legal position in its reapportionment decisions. His "Busy Haunts and Remote Wildernesses" is valuable not so much for its profundity as for its terrific style and overwhelming argumentation. In fact, this is the first article I've ever read in a Harvard Review that is just plain fun reading, even if you aren't interested in the topic. For example: "Within the court itself, Justice Harlan looks on his colleagues' handiwork with all the enthusiasm of a nun who has caught less pious sisters smuggling men into the convent." And Frank's comment on Frankfurter's Baker v. Carr dissent is a gem.

The article has some important ideas, as well as being rich in quotable phrases. To the argument that the authors of the fourteenth amendment did not intend for it to be used to equalize political districts, he presents considerable evidence that deference to the intentions of the framers of constitutional provisions would lead "not just to mal-apportioned legislatures, but to segregated schools, a revival of the Federal Sedition Act, and unfettered state control over speech, religion, press and assembly as well." He contends, in a bold generalization, that such deference is nothing more than an "Occidental variant of ancestor worship" and an "incomprehensible denigration of man's capacity for self-government." Self-government means that we, not our ancestors, must rule ourselves.

Such a contention has important implications. I accept governmental decisions--even those with which I disagree--because it is important to me to preserve the institutions which resolve disputes and protect my security, through procedures agreed to in a "social contract" or constitution. But to what extent will similar loyalties be preserved by a government which changes its procedures at will, in the interest of self-government? And would not constitutional safeguards of minority rights--the first eight amendments--be rendered meaningless by strict adherence to self-government by "the living?" Clearly, reapportionment and the other examples given pose no problems. But what I do question is the dogmatic way in which Frank constructs the theoretical foundation for his more limited contentions regarding reapportionment.

Hereinafter Lawyers

The rest of the articles stick to more narrow, substantive topics. In "The Uniform Commercial Code," the accomplishments of "The National Conference of Commissioners on Uniform State Laws (hereinafter, 'the Conference')" and "The American Law Institute (hereinafter, 'the Institute')" are related by lawyer William A. Schnader (hereinafter, 'Schnader'). Schnader's subject is boring; and the writing is vaguely of the "Run-Spot-Run" genre.

Samuel Haubold discusses "Two Constitutional Aspects of Psychopath Legislation:" vagueness and privilege against self-incrimination. It seems that states incarcerate people for psychological reasons, while denying them normal court procedure and using criteria which psychiatrists maintain are both meaningless and inept.

Robert Thomas, in his discussion of the immunity of members of Congress, disproves the old idea that legal writers make up for dry writing style by logical rigor. He is both dry and illogical. Not only is his defense of congressional immunity unconvincing, but he ignores the deficiencies of legislative self-regulation: the un-likelihood that courts would throw socialists out of a legislature, as the New York legislature did in the 1920's; or Negroes out, as the Georgia legislature did this year.

Although these last two articles were moderately interesting, specialized topics like commercial codes, psychopath legislation, and Congressional immunity can be handled adequately by law journals. A magazine like the Harvard Review would be better off sticking to issues of broader significance, such as those treated in the first two articles.