Chapter 8: The Judicial System
Public Policy Versus The Rule Of Law

Chapter Objectives

By reading this chapter you should come to understand:

1. What the basic federal courts are and how cases flow from one court to another in the appeals process.

2. Several different ways of classifying lawsuits, including civil/criminal, contract/tort, and law/equity.

3. How Supreme Court justices are appointed, and the reasons used to justify their life tenure.

4. The division of responsibilities between rule-makers and rule-appliers contemplated by the Constitution, and the reasons why judges' compliance with their oath of office is essential if Congress is to exercise effective democratic control over our government.

5. Two different ways in which rules can be applied in deciding specific cases, as summarized by the expressions R - - >A and R - - > C.

6. The side effects of decreasing the constraints on how judges can decide particular cases.

7. The mechanisms by which we have moved towards a judicial dictatorship without general realization of this fact.

Key Terms

adversary process
common law
original jurisdiction
appellate jurisdiction
diversity of citizenship case
plea bargaining
bill of attainder
precedent
certiorari
equity
public policy (three different senses)
civil case (as distinguished from criminal case)
ex post facto law
habeas corpus
specific performance
Hatch Act
tort

Learned Hand to Holmes: "Well, sir, goodbye. Do justice!" Holmes: "That is not my job. My job is to play the game according to the rules. "*

THE STRUCTURE OF THE JUDICIAL SYSTEM

American courts have many similarities to bureaucratic organizations. Judges are picked from among those with expert knowledge of the law. They are professionals, earning their living from their job rather than doing it as a sideline. Courts are organized hierarchically, with decisions of lower courts often open to appeal to higher ones. In one respect, however, the federal courts are not like a bureaucracy: most courts and judges have a general jurisdiction to hear all kinds of cases. While judges are experts in law, they are, therefore, not experts in the subjects from which lawsuits emerge. Legal disputes often grow out of the actions of engineers, accountants, and doctors, for example, but the judges who preside over these trials are not themselves experts in these subjects.

There are both advantages and disadvantages to this judicial generalism. It may promote a unified, consistent legal system where one rule is not applied in lawsuits against consulting engineers and a conflicting one in malpractice suits against physicians. On the other hand, it may produce occasional lawsuits where the judge is horribly ignorant of the nature and implications of the factual issues being presented. The advantages of specialization are so clear in some cases that special courts have been established to handle them. Thus in the federal system we find a Tax Court, a Court of Customs and Patent Appeals, and a Court of Military Appeals. Also, the various regulatory commissions handle many cases that otherwise would be decided by the regular courts, and the commissions are, of course, bureaucratic in the full sense of the term, including specialization.

Hierarchy of the Federal Courts

The regular court system, however, is hierarchical--a sort of "vertical" specialization--but horizontally unspecialized. At the bottom of the pyramid the U.S. District Courts specialize in trying cases for the first time--"original jurisdiction." The Courts of Appeals and Supreme Court specialize in reviewing cases already decided at a lower level; their jurisdiction is basically "appellate."

District Courts. There are over 90 U.S. District Courts, at least one in each state and territory and one in the District of Columbia. Although a number of judges are assigned to each of these courts, cases are normally tried before a single judge. Under special circumstances, however, a three-judge District Court may be convened to hear a case.

Appellate Courts. For appellate purposes the U.S. is divided into 10 regions, and each has its own Court of Appeals. An eleventh Court of Appeals serves just the District of Columbia, where the various government agencies generate a lot of litigation. A number of judges serve on each Court of Appeals. Their decisions are usually rendered by groups of three judges, but occasionally all of the judges in a given court may join to hand down a decision en banc in an important case.

Supreme Court. The U.S. Supreme Court heads the hierarchical pyramid. Its decisions in specific cases are final unless the justices themselves agree to reconsider the case, and "tavern cussing" is said to be the only relief available to the lawyer who loses a case there. Presently, the Supreme Court consists of eight associate justices and one chief justice. But the Court's size is not fixed by the Constitution and has occasionally been changed by Congress. The Supreme Court does not meet in sections, and all justices participate in all cases unless they are ill or withdraw to avoid a possible conflict of interest. Each individual justice, however, is assigned to supervise the federal courts in one or two of the regional circuits over which the Courts of Appeals preside. In this role, the individual justices may make tentative decisions on behalf of the Supreme Court even when the Court is in recess during the summer; these decisions, called opinions in chambers, are subject to being overridden by the full Court.

How the Courts Work

American law is basically an adversary process. This means that the parties to a dispute must request specific decisions and actions of the courts. Judges merely react one way or the other to motions made by the parties or their legal counsel. This detached judicial posture--contrasting strongly with continental European practice--places great responsibility on the lawyer to make sure that his client's rights are fully invoked in any proceeding.

The complexity of American law combines with the judge's passivity to make the services of a good lawyer almost mandatory in any courtroom proceedings. The person who tries to represent himself is said to "have a fool for a client," even when he is a lawyer, but most definitely when he is not. The U.S. Supreme Court has ruled that representation by a lawyer is so essential that the government must provide one at taxpayers' expense to poor people accused of serious crimes. Footnote 1

Criminal Cases. Cases can be classified in terms of who the adversaries are and what they want the court to do. In a criminal case the party bringing the matter jnto court is always the government. The defendant may be an individual or an association (corporation, labor union). No one can compel the government to prosecute a given person, and the U.S. Attorney has the right not to press charges at all against people who might be charged with a crime. He may do this because he doubts he has enough evidence to win the case, because he feels his scarce staff time could more profitably be employed in prosecuting more serious cases, or because it is politically expedient. (The latter instance explains why the 1978 firing of Republican U.S. Attorney David Marston by a Democratic attorney general, acting on presidential orders at the request of a Democratic congressman Marston was investigating, raised such serious questions of a cover-up.) Having the right not to bring charges against a person, the U.S. attorney also has the power to prosecute on a lesser charge. He may agree to do this in return for an agreement by the defendant to plead guilty, thus avoiding the time, expense, and uncertainty of going to trial. Plea bargaining is an important but controversial part of the American legal system today.

In criminal cases the government seeks to impose a sanction--a deprivation of life, liberty, or property--on the defendant for the benefit of the general public. To the extent that the defendant is deprived of property, the transaction constitutes an inducement from the government's point of view, and the government gets to keep what it receives: the fine.

Civil Cases. American courts also decide civil cases. Such cases may be initiated by anybody--individual, corporation, government--with a legal grievance against another party. Civil cases are in turn divided into contract disputes and torts. Contract cases arise when two or more parties have made a legally enforceable agreement to act in certain ways and one party feels the other side did not live up to the agreement. The aggrieved party may go to court seeking specific performance, a court decision commanding the other party to do what he has agreed to do, on pain of government sanctions for failure to comply. Or the plaintiff may seek money damages as compensation for losses caused by the other party's breach of their agreement.

Tort cases grow out of alleged civil (noncriminal) wrongs other than breach of contract. If you run over somebody with your automobile, you cannot be sued for violating any agreement not to do it, for people do not make this kind of contract and the victim is usually a total stranger. However the law of torts provides that certain kinds of injuries inflicted negligently or deliberately on others gives them the legal right to recover compensation from the person causing them.

In civil cases, both contract and tort, government imposes sanctions on the basis of the rules of the laws of contract and tort, but it turns the proceeds over to the plaintiff rather than putting them in the public treasury. It may seem confusing that government is able not only to judge and to dispose of civil cases, but also to be a party to them in some circumstances. But the cases are decided by government-as- legislator, while government-as-contractor is the party. Obviously if a U.S. Postal Service mail truck runs over you, you have a strong basis for instituting a tort case against the government. Likewise the government may initiate such a case if its truck is wrecked as a result of private negligence.

How Cases Move Within the System. The American system is complicated by existence of 51 separate systems of laws and courts, one for the federal government and one for each of the 50 states. Federal courts decide some cases on the basis of state laws, and state courts can decide questions on the basis of the federal Constitution and laws. A procedural nightmare can be created when a Californian vacationing in Massachusetts driving a car rented in New York collides with a car with Maryland plates driven by a Virginia salesman employed by a Texas corporation. We need not worry about such complications here, however.

With a few exceptions, the general flow of cases from court to court in our federal system is straightforward. The District Courts serve as courts of original jurisdiction. They hear most cases arising under federal laws, and they also can hear cases growing out of state laws when the parties reside in different states and a certain minimum amount of money is at stake. These diversity of citizenship cases are allowed in federal court on the grounds that state courts might be prejudiced in favor of their own residents.

U.S. District Courts also, in fact, review some decisions of state courts via a technicality known as habeas corpus proceedings. A request for a writ of habeas corpus is a means by which the legality of holding someone in government custody can be challenged. It was originally a way of protecting people from being held without being charged or tried, with opportunity to clear themselves and win release from jail. Today, it is a means by which a convict who has been sentenced under state law, has lost appeals to higher state courts, and is unable to get a writ of certiorari from the U.S. Supreme Court can challenge the constitutionality of the state law under the federal Constitution. Habeas corpus proceedings are also the only way cases decided by the U.S. Court of Military Appeals can be reviewed in the civilian courts, as no formal appeal is possible from the military to the regular courts.

Cases arrive in two main ways in the Courts of Appeals, the next level in the federal judicial hierarchy. The losing party in a District Court case may appeal the decision to the appropriate Court of Appeals. Or the losing party in a regulatory commission proceeding may appeal his case. In essentially civil cases coming either from District Court or a regulatory commission, the winning party may also sometimes appeal if he thinks he has not won enough. Cases may also arrive in a Court of Appeals by remand from the Supreme Court. In effect this orders the lower court to reconsider a previous decision in light of subsequent Supreme Court rulings.

The greatest variety of all can be found in the ways cases are brought before the U.S. Supreme Court. They may come up on appeal or on writ of certiorari from a Court of Appeals. Technically, an appeal is something the party has a right to have considered by the Supreme Court, while a petition for a writ of certiorari is merely a request that the Court hear a case it has no legal duty to consider. In fact, however, appeals are often brushed off as frivolous or lacking a substantial federal question, so the Supreme Court has nearly complete discretion in choosing the cases to which it will grant a full hearing. Under special circumstances a case can be appealed directly to the Supreme Court from a District Court, by- passing the Court of Appeals completely. In addition to cases coming in from lower federal courts, the Supreme Court also hears cases on appeal and writs of certiorari from the decisions of top state courts.

Occasionally the Supreme Court will answer a legal question submitted to it at the initiative of a Court of Appeals. The question is certified to the Supreme Court before the Court of Appeals renders its own decision in the case, and the Supreme Court's answer to the question then furnishes the basis for the decision of the lower court. Certification is unusual in that the initiative to bring the case before a higher court is taken, not by one of the parties contesting the case, but by the judges in the lower courts.

Although 99% of the Supreme Court's work involves cases appealed from lower courts, the Court also decides a limited number of cases in its original jurisdiction. Most of these are cases in which the government of one state is suing the government of another state to clarify a disputed border or to allocate rights to water from rivers passing through both states. Rather than getting bogged down in actually trying these cases, making rulings on disputed legal rules and finding facts, the Supreme Court appoints a distinguished judge or lawyer to hold hearings--which may go on for years--find facts, and recommend how the Supreme Court ought to dispose of the case. The recommendations of these special masters, with or without some modification, are then the basis for a Supreme Court decision.

FEDERAL JUDGES

Appointment

Perhaps the dirtiest exam question that can be asked about the U.S. Supreme Court is to demand a list of the personal qualities required to be constitutionally eligible for appointment to it. The more requirements the student lists, the more points are lost, for the Constitution lists no requirements at all! There is no minimum age, no citizenship, no educational requirement. It would be perfectly constitutional to appoint the general secretary of the Communist Party of the Soviet Union as chief justice.

Presidential freedom to maneuver on actual appointments appears to be least at the level of the District Courts. No District Court lies in more than one state, and U.S. senators take a great interest when a vacancy occurs on the bench. A senator not consulted about appointments to courts in his state may object and invoke senatorial courtesy to prevent the nominee from being confirmed. Appointments to the Courts of Appeals are not as subject to this patronage problem, because all but one of the Courts of Appeals preside over several states, and the one exception is the Court for the District of Columbia, which has no senators at all.

While the Supreme Court also--by definition--rules over more than one state, presidential freedom on appointments to it may be reduced by the glare of publicity which can be focused on such a rare and important appointment. By 1976, the two hundredth anniversary of the U.S. and the one-hundred-eighty- seventh of the Constitution, only 101 people had served on the Supreme Court. The average length of time between appointments has been nearly two years. While a number of presidential appointees to the Court have been rejected, the Senate's influence may be even greater than it appears. The less often the Senate objects, the more effectively it may be getting the president to do what it wants in order to avoid a fuss.

Role of the President. Nevertheless, presidents do have considerable leverage in appointing Supreme Court justices, as well as many reasons for approaching the task carefully. An unsympathetic Court can practically wreck a president's programs, as Franklin Roosevelt discovered during his first term. And a Court filled with people whose ideas and ideals are similar to those of the president who appointed them may perpetuate his influence long after a new president has been inaugurated.

Of course presidents do not always get what they expect in a Court appointee. Roosevelt was deeply disappointed in Justice Felix Frankfurter, who turned out to be something of a conservative by FDR's standards. President Eisenhower later said that appointing Earl Warren as chief justice was the most "damn fool" thing he had ever done. It is not always easy to predict how a justice will perform. Predictions are complicated by the frequent appointment of people with no previous judicial experience with which to judge them. Frankfurter was a professor at the Harvard Law School when he was appointed, and Warren was governor of California. But even justices with previous experience on the bench may not be completely known quantities.

Presidents appear to take many factors into consideration in deciding whom to appoint to the Supreme Court. Political party affiliation has usually been very important, but not all appointees have been of the president's own party. Philosophical and legal orientation have also been important, and may help to account for some of the cases in which a partisan of the opposite party has been selected. Since both parties appeal to the broad middle spectrum of public opinion, it is not hard to find a Republican who is more liberal than most Democrats, or a Democrat who is more conservative than most Republicans. Geography, too, appears to be weighed, so the Court will not appear to be dominated by a single part of the country. Likewise, some attention is given to religious background of justices. For a number of decades there appeared to be a "Jewish" seat on the Court. The first black justice, Thurgood Marshall, was appointed to the Supreme Court by President Lyndon Johnson. No woman has ever sat on the Court, but as more women enter the legal profession this remaining bastion of male exclusivity will undoubtedly disappear.

Age may be another important consideration. The president principally interested in long run influence on the Court would presumably favor youthful appointments. Of course, this is rarely the sole consideration, and for some other purposes an older candidate is preferable. Experience, or the image of experience, may come with age, enhancing a nominee's chances of being confirmed and becoming an effective member of the Court. More diabolically, a president who is interested in becoming chief justice himself after his White House years are concluded may want to appoint someone old enough to offer good prospects of another vacancy during the president's own lifetime. President William Howard Taft, a northern Republican, elevated an elderly southern Democrat to the post of Chief Justice, a move that was otherwise quite inexplicable; but Taft was known to be more attracted by the Supreme Court than by the presidency, and he may have accepted the chance to go to the White House because Mrs. Taft wanted to be first lady. In any event, if Taft's choice of a chief justice was deliberate, his strategy worked brilliantly. Chief Justice Edward White, his appointee, obligingly held on during the lean years (from Republican perspective) when the White House was occupied by Woodrow Wilson and Taft had no chance of being appointed. Then, as soon as Democrat Wilson was replaced by Repulican President Warren Harding, Chief Justice White even more obligingly died, and Harding appointed Taft to fill the vacancy.

Tenure

By virtue of their life ("good behavior") tenure, most U.S. federal judges leave the bench by voluntary retirement or death. A few have resigned rather than retiring. Charles Evans Hughes resigned as an associate justice of the Supreme Court to accept the Republican presidential nomination in 1916 and came very close to defeating Woodrow Wilson. (Hughes later was made chief justice by President Herbert Hoover in 1930, when Chief Justice Taft retired.) Arthur Goldberg, a Kennedy appointee, resigned to become President Lyndon Johnson's ambassador to the United Nations, and Abe Fortas, a Johnson appointee, resigned amidst controversy over alleged underworld connections. Some lower federal judges have resigned protesting "low" salaries eroded by inflation in recent years.[Footnote 2] A few judges have been successfully impeached, but no Supreme Court justice has ever lost his office by this process.

The Power of the Judge

A judge's authority, of course, derives entirely from the office he occupies. As an individual in his own right, the judge has no authority to impose sanctions on anybody. According to most philosophies, government has a monopoly of the right to impose sanctions on people. In terms of the present analysis, this right is specifically a monopoly of government-as- legislator; and the judge is the agent of government-as- legislator.

Even so, the employment relationship between the judge and his government is a voluntary association. Like all voluntary associations, it is established by mutual consent of both parties to the terms on which they will exchange inducements. One of these terms is that, although the judge remains free to resign, he cannot be removed except by complicated impeachment processes. Loosely, he has life tenure. More technically, he serves during "good behavior." Failure by the judge to observe the terms he has agreed to in accepting the office is presumably a legitimate basis for ending the association--an impeachable offense. Good behavior certainly does not include failing to do what one has solemnly sworn to do. The judicial oath "to support this Constitution" (Article VI) taken by all federal judges before assuming their offices is therefore by no means an unimportant formality.

THE COURT'S FUNCTION IN GOVERNMENT

The Two Sides of Law

Law, general rules of action enforceable by sanctions, is at the heart of government. As we have seen, even government's ability to wield the power of pen and purse is based on its command of the sword. But there are two distinct sides, or levels, to law. It is crucial to avoid confusing or blurring the differences between them:

1. The legislative side, which operates at the wholesale level. The legislature makes laws--general rules of action enforceable by sanctions.

2. The judicial side, which operates at the retail level. The courts general rules of action to specific cases and decide what to do about them.

The U.S. Constitution takes considerable pains to make this distinction between the two sides of law perfectly clear. After the Preamble, the very first line in the Constitution decrees that all legislative powers are to be vested in Congress. Bills of Attainder, where a legislature finds a person guilty of some crime and orders sanctions imposed, are expressly prohibited. So are ex post facto laws which, by making an action punishable after it was taken, would allow the legislature to make essentially retail decisions to impose sanctions on specific identifiable individuals. Footnote 3

The Constitution implicitly requires that all criminal trials except impeachments--if impeachments are indeed criminal proceedings at all--be in the courts. Jury trials are found only in courts, and the right to trial by jury is guaranteed. But even in cases of impeachment, Congress is prohibited from imposing any sanctions upon people successfully removed from office:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. - . . (I, 3, 7).

Sanctions can be imposed upon those who have been successfully impeached, but only by the courts, and only "according to law" (1, 3, 7). The intention to separate the law-making function sharply from law-applying could not be clearer.

Of course, nothing is ever this simple. Congress does not just legislate, nor is it strictly relegated to this function by the Constitution. Although not in so many words, it is also assigned the power to make bodres, our term for what it is doing when it enacts appropriations and when the Senate confirms presidential appointments to top government offices and gives its consent to treaties. Likewise, the Congress has the important, though infrequently used, impeachment power as we just noted.

Likewise, the courts have something of a legislative role. To some extent this role is undoubtedly proper: Courts cannot help making some law in the process of deciding case after case on the basis of rules that are not always crystal clear. Courts must inevitably read in some of the details that Congress leaves out when it drafts general rules of action. If the judicial interpretations are uncongenial to Congress, that body is free to rewrite the statute to get what it wants. The judge's role here is strictly subordinate.

Another complication serving to conceal the sharp distinction between the two sides of law is that some people actually functioning as judges are employed by "executive" agencies of government. It is from the basically judicial decisions of regulatory agencies like the ICC and the NLRB that appeals flow to the regular courts.

In spite of these complications and irregularities, the basic relationship between the two sides of law contemplated by the Constitution is clear enough. Government organizations were to specialize either at the wholesale legal level, or at the retail level, but not to get involved in both levels at once. Nobody, in or out of the government organization, was to have the authority to impose a sanctions deprivation of life, liberty, or property-at whim. Congress was to have power to impose sanctions only on classes of individuals taking a prohibited action in the future (the ex post facto rule); but Congress was to have absolutely no power to determine which specific sanctions should be imposed on specific individuals. The courts could impose sanctions on specific people, but only when they were duly found to have violated a valid law. Individuals thus could avoid sanctions by refraining from taking the prohibited actions.

Limits on Judicial Power

The power of American courts grows out of their independence and public respect. Their independence and respect in turn are rooted in the assumption--enshrined in the Constitution--that judges work within very narrow limits. These limits are the rules expressed in the Constitution, in legislative acts of Congress, and in the previous decisions (common law) of the courts themselves, or precedent. Judicial decisions are not supposed to be based on the personal beliefs and values of the judge, but on the law. Even many analysts who realize that this is not completely true appear to think that it is good for the public to think that this is the way things are. Otherwise, judicial power might decline sharply. Judges' life tenure, conferring immunity from political accountability, reflects the belief that their decisions are not merely expressions of their individual subjective preferences, but are derived relatively objectively from legal rules over the contents of which the judge has little say.

Judicial decisions based on rules are absolutely essential parts of the larger picture in which Congress, reflecting public opinion, can wield any effective power at all. As we have seen, Congress can exercise power efficiently only by sticking as far as possible to making wholesale decisions, R ---> X + Y. But as we have also noted, calculating the consequences to be expected from one possible rule as compared with another requires us to assume that the rule will actually be observed in practice. If the rule is not going to be observed, or not all the time, then there is no way to estimate the probable consequences of enacting it, and no way to exercise power via wholesale decisions. The judge's function, then, of playing the game "according to the rules," is therefore an essential half of any over-all system of effective democratic government.

Sources of the Judge's Power

Even if they always played the game according to the rules, judges would still have great personal power. As things actually work, they may be even more powerful in determining the outcome of specific cases but, in the process, render themselves somewhat less powerful in terms of general impact on the life of our country.

Power of the Position. Judges deal only with individual cases. To exert decisive power over the outcome of individual cases, the judge must either work within rather loose rules, or he must ignore or bend the meaning of rules. No set of general rules will produce results that the judge finds congenial in all specific cases. Judges are human, too, and cannot help developing some empathy with or repugnance towards individuals whose cases come before their courts. If the rules are followed wherever they lead, good people (in the judge's view) may have bad cases and vice versa. To the extent that legal rules limit him at all, the judge can therefore play his role properly only if his belief in the rule of law is stronger than his belief in the goodness or badness of his specific decisions evaluated on their own isolated merits.

To a considerable extent, power to affect the outcome of a case is thrust upon the judge. In a court of original jurisdiction or trial court there is always room for choice in determining the credibility of witnesses or the facts that have and have not been established. Of course, it is the jury's function to make decisions on questions of fact, while the judge presides and makes rulings on issues of law. However, by no means are all trials conducted with a jury. And even when there is a jury the judge must instruct its members. He may order a directed acquittal in criminal cases, and may direct a judgment notwithstanding the verdict of the jury. Both for judge and jury, subjective impressions of and reactions to litigants must inevitably have some effect on willingness to believe alleged facts introduced by parties to the case.

Application of Law. In part, the extent of judicial power over the outcome of a given case depends on which kinds of legal rules apply to such cases. Although we can summarize the rule- making decision in terms of the simplified R ---> X + Y, there can be two different kinds of rule application decisions, each of which must be expressed with a different formula. One kind of application consists of deducing a given government action from a given rule or set of rules, giving due heed to the circumstances of the case. We can express this type of rule application as R₁ - - - > A. That is, under given circumstances rule R₁ implies that the government must take action A. For example, the double jeopardy rule in the Fifth Amendment--as amplified by the courts--is an absolute bar to retrying a person who has been tried and duly acquitted of a given charge. If, under such circumstances, the federal government tried to retry the person on the same charge, the judge would be obliged by the rule to dismiss the indictment.

The other kind of rule application can be summarized as R₂ - - - > C. Here, the rule implies certain limits to what actions can be taken, and thus functions as additional circumstances that must be considered by the judge in deciding what to do. His decision is not deduced from the rule, but is chosen on one ground or another from among the set of possible actions compatible with the rule. The legal punishment for a given crime, for example, may be expressed as a set of upper limits-- "not more than $10,000 fine and 5 years in jail"--to what the judge can do to a person convicted of a given offense. Sometimes, the law will provide a floor as well as a ceiling to the judge's alternatives-"not less than one nor more than 10 years." If there is a floor as well as a ceiling, this second kind of rule application approaches the first kind as the options allowed to the judge are narrowed. That is, as the restrictiveness of the circumstances implied by R₂ increases, applying the rule becomes a more and more mechanistic process with little room for judicial discretion. R₁ can therefore be regarded as a very special case of R₂.

No matter which kind of rule the judge is applying, it must be expressed in words and words have an inherent potential for ambiguity. Take, for example, the Thirteenth Amendment to the U.S. Constitution:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

These words make some things clear: First, that involuntary servitude--10 years imprisonment at hard labor--can be imposed as a punishment for a crime. Second, that involuntary servitude cannot be imposed for any other reason. But the words also leave some questions. First, can slavery be imposed as a punishment for crime? (That is, does the "except for" clause in the amendment modify only "involuntary servitude," or does it also modify "slavery"? If the comma after "servitude" were removed and placed instead after "slavery," this latter possibility would be completely excluded by normal rules of grammar.) Second, what is meant by "involuntary servitude"? Does the expression point only to a sentence to hard labor in the penitentiary, or does it also take in compound-involuntary associations such as those created by selective military conscription or compulsory jury duty?

Does a drawbridge referred to in a legal rule refer only to the moveable part of the structure or does it include the nonmoveable part that is over water, too? What about the over land approach to the structure. [Footnote 4] Does an airplane fall within a legal rule penalizing interstate transportation of a "motor vehicle," when the law defines a motor vehicle as "an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails"? [Footnote 5] Courts must repeatedly decide questions like these, and in so doing they can exercise power over the outcome of the specific case in which the interpretation is rendered.

A GOVERNMENT OF LAWYERS

The ideal is often expressed that we have, or should have, a "government of laws and not of men." Of course, the implied dichotomy is a false one. The words presumably refer to a government of men acting through laws rather than randomly or arbitrarily. Such a government is one that decides what sanctions to impose on whom according to (R₁) or limited by (R₂) rules rather than in an ad hoc, unprincipled way. It is a government characterized by objectivity, absence of favoritism toward particular individuals or classes of individuals, and similar treatment of similar cases.

Judicial Discretion

However, as reliance on the first type of rules (R1) from which specific government actions can be deduced decreases and reliance on the second type of rules (R2) increases, judges can do more and more what they please in each particular case. And as the latitude of the artificial circumstances or restrictions imposed by the second type of rule increases, judicial discretion becomes still greater.

       R1 - - - >A     Least judicial discretion

       R2 - - - >C  (narrow   More judicial discretion
                                limits)

       R2 - - - >C (wide      Greatest judicial discretion
                                limits)

Current trends in American jurisprudence, with a very few exceptions, are away from mechanistic rules of law and toward approaches permitting greater and greater scope for judicial "flexibility and boldness." Footnote 6

Consequences of Expanding Judicial Discretion

As judicial discretion expands and rules of law become less and less of a restraint on what judges can do in particular cases, we can expect five important consequences or side effects: First, we can expect to find a decrease in the legislature's leverage over government actions. As we already noted, calculations made by legislators are facilitated if they can assume that any rules enacted will be followed. But when rules are vague or ignored in judicial practice, legislative choices are made more difficult and less important. Ward Elliott, denouncing the "Guardian Ethic" of the modem Supreme Court, speaks of the irony of the judicially imposed legislative reapportionment of the 1960s:

The Ethic tended to extend equality in form while debasing it in substance. It granted equal access to representative institutions, in a sense, but it also treated the institutions as though they were unfit to decide the main questions. . . . Its purported aim of expanding the electorate was vitiated by its insistence on overriding the legislatures to whom access was granted. Its democratic largesse resembled, in some ways, that of the Roman emperors who extended the hollow shells of Roman citizenship throughout the empire even as they continued to debase it in Rome. The triumph was for management, not democracy. Footnote 7

Second, as judicial discretion expands, we can also expect to find a reduction in the extent to which people can know what their legal rights and duties are. The classic discussion of the difficulties individuals face in making plans when government can treat them arbitrarily is found in Friedrich Hayek's The Road to Serfdom. Hayek distinguishes laws in the sense of general rules of action from government "planning" in a narrower sense. "Planning" requires direct action to achieve particular goals by imposing sanctions on people who stand in the way of achieving them whether they have violated any law or not. If the value pursued by government, for example, is "equality," Hayek notes that

To produce the same result for different people, it is necessary to treat them unequally. Footnote 8

Since this cannot be done by enforcing general rules of action, Hayek concludes that

the more the state "plans," the more difficult planning becomes for the individual. Footnote 9

An excellent example of what Hayek is worried about can be found in the American antitrust "laws." Alan Greenspan, one- time chairman of the Council of Economic Advisers, has described these "laws" graphically:

The world of antitrust is reminiscent of Alice's Wonderland: everything seemingly is, yet apparently isn't, simultaneously. It is a world in which competition is lauded as the basic axiom and guiding principle, yet "too much" competition is condemned as "cutthroat." It is a world in which actions designed to limit competition are branded as criminal when taken by businessmen, yet praised as "enlightened" when initiated by the government. It is a world in which the law is so vague that businessmen have no way of knowing whether specific actions will be declared illegal until they hear the judge's verdict . . . . Footnote 10

A third predictable consequence of increased judicial discretion is a reduced willingness to enforce laws by imposing sanctions on people convicted of violating them. As freedom increases, so do feelings of personal responsibility for actions taken. It is one thing for a judge to order a person hanged when he has been found guilty in fact of taking an action the mandatory punishment for which is execution. It is an entirely different thing to send a person to the gallows when you are free to do anything with him you wish. The defendant is always a specific individual, a human being, with a mixture of attractive and repulsive qualities. Furthermore, he has a strong interest in playing on the sympathy and humane instincts of the judge. As judicial discretion has increased, we therefore need not be surprised that the number of people executed has greatly decreased, and at the same time that serious crimes have dramatically increased. Judges are only human.

Fourth, if the judge is personally responsible for what he orders done to an individual convicted of violating the law, he may develop a crushing burden of guilt. Guilt feelings do not necessarily lead to straight thinking. For a system of law to operate effectively, it may be necessary for most people in courts, legislatures, and the voting public to realize that the basic responsibility for specific government sanctions being imposed on specific people under the law rests with the person who broke the law:

Just as judges do not punish, in the psychological sense of the word, neither do legislators. "They hope no punishment will be needed. Their laws would succeed even if no punishment occurred." Punishment, we must remember, is a corollary of lawbreaking, not of law. Footnote 11

The legislature merely draws a line and promises that anyone who steps over it will be punished. The courts determine whether someone has indeed stepped across that line, and deduce the punishment from the rule enacted by the legislature as applied to the facts:

[There] is only one condition that makes legal punishment "just, and over it neither legislator nor judge has direct control: it is that a law must be broken. Only the actor, the citizen of a free society, can do this. Footnote 12

It appears doubtful that this principle is widely understood in America today. If it were, protestations that capital punishment is murder and books like The Crime of Punishment [Footnote l3] could not be taken as seriously as they apparently are.

A fifth predictable result of judges' freedom from legal rules is an increased judicial willingness to invent rationalizations for ad hoc imposition of sanctions on corporations. This is the converse of the decreased willingness to impose sanctions on individuals. Corporations are nonhuman, and the judge need not personally face the stockholders, employees, suppliers, and customers to whom all corporate costs are inevitably passed along as lower dividends and salaries or higher prices. Corporations can be seen abstractly and tend to have a deep pocket, so they are fair game for antitrust penalties, product liability, and employment discrimination judgments that nobody could have anticipated when the "illegal" corporate actions were taken. Legal costs of avoiding and defending against these endless possible prosecutions are, of course, incorporated in the price of goods and services and passed along to the individual consumer. But judicial squeamishness over hurting individuals appears to apply mainly to direct, retail harms, not to indirect, wholesale harms of the same magnitude.

The net effect of expanding judicial discretion thus appears to be reductions in effective democracy, in economic efficiency, and in personal security for the average law-abiding citizen. Compensating for this is an increased liberty for individual criminals to get away, literally, with murder. It is a strange world! Perhaps only the complexity of these problems, the obscurity of the legal principles involved, and the divinely noble intentions of many of the people responsible for the present mess stand in the way of a general realization of what our society has been doing to itself. In the meantime, movement continues apace toward a judicial dictatorship. Footnote 14

How Expansion of Judicial Powers Can Lead to Judicial Dictatorship

A frog can be boiled alive without noticing it if the water in which it is resting is brought up to the boiling point gradually enough. Likewise a public that does not know what to watch for can gradually be brought under a tyranny without feeling much pain. True, some may wonder a little when a sizable number of people who have been caught dead to rights in a major violent crime are let off on a technicality. [Footnote 15] A few eyebrows may be raised when a court places the entire public school system of a major city under direct judicial management. Civil liberties fans may hiss when a one-time Communist who left the Party years before there was anything illegal about membership has his Social Security benefits cut off by the Supreme Court.[Footnote 16] But for the most part laws are technicalities beyond the ability of the general public to evaluate, and most people tend to approve or disapprove of court actions on the basis of the particular results rather than on the legal merits. [Footnote 17] There are at least three mechanisms by which judicial discretion has been expanded:

1. The escalation of equity proceedings

2. The weighing and balancing of interests rather than the demarcation of rights

3. The displacement of law by public policy

Equity Cases. In England over the centuries a distinction grew between civil cases in law and cases in equity. The rules of the judge-made common law became so rigid that applying them to specific cases all too often produced results that offended the community's sense of justice. The English Parliament had not yet evolved into a real legislature in which laws are made-- indeed the concept of making as distinguished from discovering rules of law had not yet become familiar. People who felt they had not gotten justice in a court of law therefore began to petition the lord chancellor to give them their due on the basis of his sound discretion. Harold J. Berman explains:

[R]eview of a case in Chancery could not be demanded by a litigant as a matter of his right but was invoked by petition which the Chancellor could accept or reject at his discretion. The Chancellor's jurisdiction was also said to be a matter of "conscience," meaning that the Chancellor was not bound to act according to the technicalities of the common law but instead was to act according to the dictates of justice and mercy; he was to do "equity" when the law failed in this regard. Footnote 18

In other words courts of equity do not play the game according to the rules. Rather, they try to do justice.

In America the distinction between law and equity has been badly blurred by the practice of having the same courts decide both kinds of cases. The same court that might award money damages for a breach of contract (a remedy in law) might instead order specific performances-- carrying out of the terms of the deal (an equitable remedy). The same court that might award damages after a tort has been committed--a remedy in law--may issue an injunction ahead of time prohibiting the action that would cause the injury. All injunctions are issued by judges in their capacities as courts of equity.

As a result of the organizational decision to combine cases in law and in equity within the jurisdiction of a single set of courts, the sharp increase in reliance on equity proceedings has largely escaped public attention. But this increase goes a fair way toward explaining the increased leverage of the courts, which people have begun to notice. In equity cases there is no jury, which often acts as a restraint on judicial discretion in cases at law, and the judge is far less hemmed in by procedural and substantive rules.

Weighing and Balancing Interests. A second mechanism by which discretion of American courts has been increased is the weighing and balancing of interests rather than the delimitation of the boundaries of rights. For example, the original concept of the Bill of Rights was that it drew lines across which government could not step. The First Amendment, for example, begins rather categorically: "Congress shall make no law . . . abridging the freedom of speech, or of the press," and so forth. (Emphasis added.) However, by the mid-twentieth century freedom of speech was being called a "liberty interest," and restrictions on it were being upheld by the Supreme Court when its members felt the government had its own interest in doing so that outweighed the interest of the individual. Thus we begin to find language such as following in Supreme Court decisions:

No one would deny that the infringement of constitutional rights of individuals would violate the guarantee of due process where no state interest [emphasis added] underlies the state action. Footnote 19

One justice complained that

to apply the Court's balancing test under some circumstances is to read the First Amendment to say "Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised. Footnote 20

Perhaps the main reason the courts have gotten into the business of weighing conflicting interests rather than sharpening the boundaries of rights is that a consistent principled distinction has never been made between laws and bodres. The effort to find a satisfactory single constitutional standard for these two very different kinds of things--both called laws by today's courts, legislatures, and the general public--has inevitably failed. One might just as easily find a single standard for judging the merits both of oranges and of helicopters!

To continue with the First Amendment example, when the Amendment says "no law" should it be construed literally, or not? Consider the case of the Hatch Act. The aspect of this Act with which we are concerned here is a bodre. The Act prohibits federal civil servants from certain kinds of political activities including speaking to a partisan political rally, on pain of a withdrawn inducement: dismissal of violators from their government jobs. There were strong reasons why the Hatch Act was regarded as desirable, including the need to preserve civil service neutrality and insulate its members from pressures from their superiors to support the party controlling the White House. The Supreme Court was therefore reluctant to strike the Act down as a violation of the First Amendment. If the distinction between law and bodre were consistently recognized, the Court could have followed the lead established by Oliver Wendell Holmes. As a member of the Supreme Judicial Court of Massachusetts he upheld the firing of a policeman for off-duty politicking. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," said Holmes, putting the case neatly.

Instead, the Supreme Court upheld the Hatch Act on the grounds that a weighing and balancing of the conflicting interests involved convinced it that the Act was a reasonable one., [Footnote 21] But who knows how much an interest is worth? What objective scales are available to measure so intangible a commodity? What limit is there to judicial discretion when there are no rights, but only interests the practical meaning of which is uncertain until the Supreme Court has rendered its fiat in each specific case? Justice Hugo Black declared in a 1968 lecture:

I deeply fear for our constitutional system of government when life-appointed judges can strike down a law passed by Congress or a state legislature with no more justification than that the judges believe the law is "unreasonable." Footnote 22

And the converse of this power is even more alarming, as Black had noted in his dissenting opinion back in Flemming v. Nestor:

[T]his elastic formula gives the Court a further power, that of holding legislative Acts constitutional on the ground that they are neither arbitrary nor irrational, even though the Acts violate specific Bill of Rights safeguards. Footnote 23

Public Policy

In a way the displacements of law by equity and of rights by interests are only elements in the third mechanism by which judicial discretion has expanded: the displacing of law by public policy.

"Public policy" is an ambiguous expression. At least three different meanings appear to be denoted by it, from time to time. (1) Public policy refers to the terms on which and with whom government-as-contractor is willing to enter into a voluntary association. The policy may specify the kinds of things that government will give and receive in any such exchange as well as the ratio of that exchange (price). Public policy in this sense is usually expressed in the form of rules of the second kind, limiting the scope of the discretion of government-as-contractor. The policy refers to inducements only, and the term we have introduced with which to refer to its rules is bodres. The Hatch Act is "public policy" in this first sense of the term. (2) Public policy at other times refers to the laws, general rules of action enforceable by sanctions. The rules specify the kinds of action prohibited, and the punishment which will be imposed on people who take the prohibited actions. A rule against driving more than 25 miles per hour on a city street not posted for a higher speed is an example of a public policy in this second sense. (3) Public policy also refers to an objective the government is pursuing. It is said to be the policy of the U.S. government, for example, to reduce unemployment, to conserve energy, and to limit air pollution.

In terms of the general A ---> X + Y analysis of actions we have been using, "public policy" in its first two senses refers to ways of acting (A or R) and, thus, falls to the left side of the arrow. Policy in the third sense, on the other hand, refers to X and Y, falling on the right side of the arrow. None of these meanings attached to public policy is in itself perverse. Each is a useful concept to which we would want to refer with appropriate words in any event. The danger lies not in any one of these uses, but rather in the use of the same words to refer to the different meanings. It is all too easy unwittingly to shift definitions in the middle of a syllogism and thus to arrive at conclusions that do not derive logically from our premises. If word B has two different meanings and we ignore these differences we may reason:

             A   =  B1  major premise

             C   =  B2 minor premise

 therefore   A   =  C  conclusion (things equal to the
                                   same thing are equal
                                   to each other)

Of course, in general usage many words mean more than one thing, and nothing can probably be done about this. Nor do we need to worry greatly about this general state of affairs, for these different meanings are usually clear enough from the context in which the word is used. The hood who lowers you into the Hudson River encased in cement is unlikely to be confused with the lid of the front end of your car, nor is either in great danger of being mixed up with the head covering once worn by monks. It is only when the meanings are close enough together that they are likely to be used in the same context that confusion is likely. This, unfortunately, appears to be the case with "public policy."

"Public policy" in the second sense, laws, is a legitimate basis for deciding when to impose sanctions on people. The objectives government pursues are "public policy" in the quite different third sense. For people who ignore the difference, it appears to follow logically that the objectives government is pursuing are a legitimate basis for deciding when to impose sanctions on people. But no conclusion could be more repugnant to the requirements of the rule of law. Perhaps this is the point of the Holmes quotation with which we began this chapter: "justice" is an objective which government may pursue, but it not a rule of action on the basis of which government may impose sanctions on anybody.

It is intolerable when government imposes sanctions on the basis of public policy in the sense of government objectives. Government, like all other actors, has many objectives. Leading examples of these objectives include pollution control, low unemployment, energy conservation, stable currency, and good relations with allies. As always when there are many objectives, some of them will conflict with attainment of others. Controlling pollution may increase energy consumption. Energy conservation may increase unemployment. Efforts to reduce unemployment by enacting tariffs and other obstacles to imports may harm relations with our allies. Consequently, there is no way to know how government will treat particular individual actions if it can base its actions directly on public policy in this sense. Will the person who shuts his factory down be commended for reducing energy use and pollution, or punished for increasing unemployment? No one can say.

Government decisions (R) on what laws to enact are based on public policy in the third sense, that is on the objectives or goals (X) that government is pursuing. But legislation is not based merely on government's goal in a given case. It is also-- one hopes--based on an evaluation of the side effects (Y) of a given law on attainment of other government objectives. For example, in spite of government's interest in highway safety, no law is passed making 25 miles per hour the speed limit on interstate highways. While such a limit would undoubtedly save many lives now lost in speed accidents, it would also conflict with another government goal: the mobility and convenience of the traveling public. In passing laws, government thus must weigh its priorities and decide how much of this it is willing to give up or trade off in order to get how much of that. Weighing and balancing conflicting goals or interests is therefore both inescapable and proper. The issue is not whether this will be done, but by whom it will be done. Under the rule of law, these tradeoffs and compromises of conflicting considerations are made by the legislature in deciding what general rules of action to enact. People are then warned that if they step over the lines drawn by the legislature they will suffer sanctions, and assured that if they do not step over these lines they will be left alone. Under a judicial dictatorship the weighing and balancing is done by judges from case to case and people cannot know where they stand.

Laws must be consistent with one another; when they appear not to be, this is regarded as a sign of sloppy work. No system of legal rules can make sense if precisely the same action is both prohibited and mandatory. Objectives of government, on the other hand, do not manifest any consistency at all, nor is there any reason why they should. Conflicting objectives are normal for all of us. Imposing sanctions on people for violating public policy objectives indicates that they have violated no law, for courts prefer to justify their decisions by citing specific rules of action if they can find any that produce the decision they want in a case.

Yet cases are being decided all the time on policy. A very revealing comment was made by Justice Frankfurter concurring in the Supreme Court's Terry v. Adams decision that the Jaybird Association's "pre-primary primary" violated the Constitution:

Though the actions of the Association as such may not be proscribed by the Fifteenth Amendment, its role in the entire scheme to subvert the operation of the official primary brings it within reach of the law . . . . Footnote 24

In other words, the Jaybird Association had not stepped across the line of legally prohibited action, but it had stepped close enough that the "law" could reach out grab it by the throat, and haul it across. The purpose for which the Fifteenth Amendment was passed was to prevent black citizens from being deprived of the vote. The Jaybird Association's actions conflicted with this purpose--though not with the Amendment--therefore the Association had violated the Amendment anyway!

Donald S. Cook, a former chairman of the Securities Exchange Commission (SEC), has "suggested that, with a few minor qualifications, 'any commission can reach any decision on any subject and have grounds for it that can be fully support in the courts.'" [Footnote 25] It has frequently been admitted that

there is no precise definition of "public policy" or rule to test whether a contract is contrary to public policy, so that each case must be judged according own peculiar circumstances. Footnote 26

The notorious Star Chamber in England has always been a symbol of perversion to self-righteous American civil libertarians. Yet what was the sin of the Star Chamber?

The Star Chamber regarded as illegal any unlicensed combination of men whose purposes were considered contrary to public policy by the judges, even though the acts involved were neither tortious nor indictable crimes. Footnote 27

When sanctions are imposed on people for violating public policy rather than legal rules, it is an effort by government to have its cake and eat it too. It is an effort to combine the advantages of being able to impose sanctions on people with a refusal to rank government's own priorities systematically enough to be expressed in rules of action. But as with all actions, there is a cost to this effort: the proliferation of private uncertainty and a gross violation of the requirements of the rule of law.

SUMMARY

Government-as-legislator is the essence of government. It imposes sanctions on people who have violated general rules of action laid down in advance. There are two sides to legislation: making the rules, and applying them to determine the treatment of particular people. Rule-application is the distinctively judicial function, performed by judges and by many bureaucrats with quasi-judicial duties. The goodness or badness of a particular judicial decision lies not in its consequences but in its conformity to the rules laid down by Constitution, statute, and judicial precedent. When judges violate their oath to support the Constitution and laws, they prevent Congress from predicting the consequences of its legislative choices. Such violations are therefore presumably impeachable offenses.

American judges are becoming less inclined to play the game according to the rules. Accordingly, they have become more reluctant to impose sanctions on individual criminals and more willing to impose sanctions on corporations which have not violated any laws at all. In both cases costs are absorbed by individuals, whose personal security is reduced by unchecked crime and who--as consumers--pay all costs of corporate production. Judicial efforts to do justice rather than play by the rules have brought the U.S. perilously close to a judicial dictatorship where democratically elected officials are not allowed to make the real policy decisions.

QUESTIONS FOR DISCUSSION

1. In 1977 the Supreme Court ruled that government has no constitutional duty to pay for abortions for poor people, but it pointed out that Congress and the state legislatures are free to appropriate as much money for this purpose as they wish. All the Court did was to refuse to order the expenditure of money that had not been appropriated by a legislature. According to Time magazine (July 4, 1977, p. 8):

A California public health official predicts that if government funds are cut off, more welfare mothers will die by going to cut-rate quacks for their abortion Says she: "I'll send a copy of the first death certificate to Justice Burger."

What concept of the role of the Supreme Court in our political system was the California critic apparently assuming? Was it an appropriate one?

2. To what extent are American courts like a bureaucracy, and to what extent a they different? Why is this important?

3. Explain the differences between a criminal case and a tort case.

4. What is the role of a jury? What is the functional equivalent of a jury when the Supreme Court decides a case in its original jurisdiction?

5. Explain why judges' compliance with their oath of office is necessary if Congress is to be able to wield its power to make wholesale decisions effectively. What is the difference between the following formulations, and where does each of them apply?

           a.  A--->X + Y
           b.  R--->X + Y
           c. R- - - > A
           d. R- - - > C

6. A good judge must sometimes decide a case in favor of a party for which has nothing but personal contempt and disgust. Explain why.

7. How does the text connect increasing judicial discretion with
a. the crime wave
b. the sweeping expansion of legal harassment of corporations

8. Do you believe we are on the verge of becoming a judicial dictatorship in the U.S.? Why, or why not?

9. What are the three meanings of public policy, and why is it dangerous to confuse them?

***************

Footnotes

* Quoted by Thomas S. Szasz, Law, Liberty, and Psychiatry (New York: Collier Books, 1963), p. 109.

1. Gideon v. Wainwright, 372 U.S. 335 (1963).

2. New York Times, May 19, 1977.

3. On December 4, 1989, Jones takes an action that is not illegal on that date. On December 20, the legislature makes such an action illegal. If Jones is prosecuted for his action, the law as applied to him is ex post facto.

4. Savanah, R & W RR v. Daniels, 17 S.E. 647 (Ga. 1892).

5. McBoyle v. U.S., 283 U.S. 25 (1931).

6. Flemming v. Nestor, 363 U.S. 603 (1960).

7. Ward E. Y. Elliott, The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845-1969, Cambridge: Harvard University Press, 1974, pp. 2, 30.

8. F. A. Hayek, The Road to Serfdom, Chicago: University of Chicago Press, 1944, p. 79.

9. Ibid, p. 76.

10. Ayn Rand, Capitalism: The Unknown Idea4 New York: Signet, 1967, p. 63.

11. Thomas S. Szasz, Law, Liberty, and Psychiatry, New York: Collier Books, 1968, p. 119.

12. Ibid., p. 119.

13. Karl Menninger, The Crime of Punishment, New York: Viking Press, 1968.

14. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Cambridge: Harvard University Press, 1977.

15. Brewer v. Williams, 430 U.S. 387 (1977).

16. Flemming v. Nestor, 363 U.S. 603 (1960).

17. See Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959).

18. Harold J. Berman and William P. Greiner, The Nature and Functions of Law (3rd ed.), Mineola,

N.Y.: The Foundation Press, 1972, pp. 75-76.

19. Sweezy v. New Hampshire, 354 U.S. 234 (1956).

20. Barenblatt v. U.S., 360 U.S. 109 (1959).

21. United Public Workers v. Mitchell, 330 U.S. 75 (1947); U.S. Civil Service Commission v. Letter Carriers.

22. Elliott, p. 260.

23. Flemming v. Nestor, 363 U.S. at 626 (1960).

24. Terry v. Adams, 345 U.S. 461 (1953).

25. New York Times, January 27, 1977.

26. O'Callaghan v. Waller and Beckwith Realty Co., 15 111. 2d 436 (1958).

27. David Fellman, The Constitutional Right of Association, Chicago: University of Chicago Press, 1963, p. 3.