The Supreme Law of the Land

LAST year Charles Curtis, with the assistance of Ferris Greenslet, gave us The Practical Cogitator. Mr. Curtis’s new book on the Supreme Court, Lions Under the Throne (Houghlon Mifflin, $3.50), might have been offered as a testimonial to the practical value of the Cogitator. It is wise and willy, warmed by the sunny lights of high literature and philosophy. Mr. Curtis’s special note is urbanity. He is alive to the intellectual currents of the Western world, and he is neither a cynic nor a Utopian. He seeks out with a positive good will what he can admire; and he chides departures from perfection ever so gently.

It is in this spirit that he writes of the Supreme Court. Indeed there is something of the ardor and affection of the lover in his feeling for the Court. But it is not the opportunistic, possessive affection that exalts the Court when it sings one’s own tune, and vilifies it as so many today are doing, when it sings a new one. To be sure, Mr. Curtis finds the present music comparatively harmonious despite a discord here and there.

Mr. Curtis is mostly concerned with the Court’s constitutional function. He does not examine its present controversial and occasionally unorthodox way with statutes. He does not agree with those who holly charge that Marshall “usurped” the power to declare legislation unconstitutional. The founding fathers foresaw the problem but they could not settle it. The Constitution was to be the “supreme law of the land.” But who was to sustain its supremacy ?” The Constitution did not say. The Executive, the Legislature, the Court? The Court decided that it must properly assume this responsibility, at least when the question of legality arose in the course of a litigation. In other situations, no doubt, the Executive or the Legislature must make the decision. There was general acquiescence in the Court’s solution, because someone had to do the job. No more is required to legitimize function and power. The Court pretended that the power was nothing exceptional. The dispute, it said, was simply a question of law - and to decide this question is peculiarly a judicial function.

But, Mr. Curtis observes, the Constitution provides no ready answers for the really hard questions. Does a minimum-wage law take away an employee’s “life, liberty, or properly without due process of law,” and so violate the Fourteenth Amendment? Such words, he says, “are all but the equivalent of silence.” The Court cannot find an answer in the law. If there is any criterion, it can only be whether the legislation is so repugnant to “all men of sense and reflection” that it should be ignored. The Court is collaborating with Congress in the common enterprise of government. It will ignore Congress’s work only if it is “uncoöperative,””a palpable breach of discipline on the part of its fellow workman.”

The Court’s obligation is to keep the Constitution abreast of the best thought about government. Since the Constitution speaks in compendious generalities, it can welcome in turn a variety constructions. Occasionally Mr. Curtis, with his receptiveness to all facets of thought, seems to endorse somewhat contrary doctrine. As, for example, Holmes’s vain boast that he would not invalidate any law unless he found an express prohibition in the Constitution. If the Court is so literally circumscribed, it could hardly undertake the task which Mr. Curtis sets it. Holmes’s dictum would require the obliteration of much of the Court’s 150 years of decision. More pertinent is Jackson’s view that he would not overrule a decision which had stood the test of practicability, merely for lack of a literal constitutional warrant.

For Mr. Curtis there is only one bête noire, one evildoer. It is Abstraction, the faceless, the unseeing One. Sometimes his aversion leads him astray. He knows, he says, at least one judge who can do “without abstractions and reach and touch facts directly "! Perhaps he is referring to God. At an other point he admits that we cannot do without abstractions, at least “until we can think of something better.”But obviously the only thing better than an abstraction is a better abstraction.

Mr. Curtis, however, knows this. And I heartily share his distaste for the judge who pursues his abstraction to the exclusion of all others. In one case, an ordinance forbade the ringing of doorbells by unsolicited peddlers. Early one Palm Sunday a legion of Jehovah’s Witnesses descended upon a town and called the citizens to their doors to press upon them pamphlets condemning organized religion. A majority of the Court held that if the ordinance forbade this conduct, it denied the constitutional protection of religion! “Forbid this,”the majority seemed to say, “and where can you stop?” Mr. Curtis deplores such abdication of discretion and judgment.

Mr. Curtis fails, or perhaps hesitates, to draw one ultimate conclusion. The judges, he says, should adopt “our philosophy.” Not theirs, but ours. Ours, it is implied, is democratically representative. But do not all explicit philosophies embody the views of an elite? How many in this country love free speech with the doctrinaire passion of the Supreme Court? If we admire the present Court’s general constitutional attitudes, is it not because we are of the same elite with it? Probably this is confessed in Mr. Curtis’s eloquent conclusion. Where Plato would have his philosopher kings, he would have the judges be our state philosophers. They are to criticize our highest ethical, political, and economic abstractions, harmonize them into “more complete schemes of thought.” “Out of a confusion of which we may be only half aware, they will articulate our creed for the era.”

Shall lawyer-judges then be not only our lawyers and judges but our philosophers? Perhaps only an American, and a lawyer, would so exalt them. But in a world in which so many idols beckon down darkening paths, this idolatry of judges, if such it, be, is among the loss sanguinary sins. The Court has set flying on the highest mast the banner of freedom and tolerance. To many of us that banner is the emblem of a noble battle.