The Occasions of Justice: Essays Mostly on Law
Perspectives in Constitutional Law
An eminent historian of American religious thought has said of New England’s Great Awakening in the 1740’s that it was “an uprising of the common people who declared that what Harvard and Yale graduates were teaching was too academic.” Some future historian of American law may some day suggest that during the middle decades of the twentieth century there occurred a similar Great Awakening on the secular front—a massive stirring in constitutional law known to its contemporaries as “activism.” It will be pointed out, perhaps, that in that second Great Awakening, as in the first, the revulsion of the revivalists was against the legalistic teachings of Harvard’s graduates (those Old Lights, Thayer, Hand, and Frankfurter)—teachings which an activist New Light scornfully described as “the New Higher Criticism of the Supreme Court.” So vivid may the analogies seem that an ardent scholar of the future may search the archives of the 1960’s in the hope that he will find one Justice calling another an “Arminian” or some Harvard professor calling his opposite number at Yale an “Enthusiast.” The search may not go wholly unrewarded.
Three years ago when he published The People and the Court, Professor Black made it clear that his allegiance in constitutional law was to the activists—the judges and scholars who believe that the Supreme Court of the United States should not attempt to be a “neutral” interpreter of laws and precedents, but should rather accept an unmistakable and noble responsibility to safeguard certain selected and preferred interests of the American people. Both in Perspectives in Constitutional Law (a primer for college students) and in The Occasions of Justice (a collection of essays and reviews) Professor Black reaffirms that loyalty. Once more he brings to the affirmation impressive moral force, effective eloquence, and ample learning. With respect to Perspectives in Constitutional Law, one is inclined to wonder whether a work so frankly polemical in substance and tendentious in mood provides the best introduction to preliminary understanding. The side of the angels is doubtless worth defending, but should not the college student who is being given a survey of the battlefield be warned that the powers which their guide considers to be those of darkness do not wholly lack moral and intellectual enlightenment? With respect to The Occasions of Justice, it is hard to believe that all of the papers—some of them very slight indeed—deserved republication. Yet the more substantial essays are of considerable interest. Their significance lies, I think, less in the particular theses which they maintain than in the attitude of mind and spirit which they reveal.
The most important of the papers seems to me to be the essay on “The Lawfulness of the Segregation Decisions.” Like other activists, Professor Black was deeply troubled by the thoughtful suggestion of Professor Herbert Wechsler of Columbia—a fully accredited liberal and a constitutional scholar of the greatest eminence—that it is hard to discover justification for the Court’s …