In response to:
Split Decisions from the July 1, 1965 issue
To the Editors:
There are men of law who believe in the law, and there are men of law who believe in justice. The former assume that the law creates justice; the latter believe that the law creates both justice and injustice, and must therefore be subject to constant scrutiny and change. Hence the latter will come to be called “activists,” and will be attacked by men like Mark DeWolfe Howe.
The “simplicity” of which the activists stand accused by Mr. Howe, is that they consider cases that come before them principally with regard to the basic freedoms guaranteed by the Constitution and the Bill of Rights, and only secondly with regard to the history of previous related decisions. Mr. Howe pleases to call this “the contrast between the dogmatic and the historical method of adjudication,” and is all the more outraged that today’s Justices use history to support their decisions through “a selective interpretation.” Mr. Howe apparently thinks that equal value must be attached to all previous decisions (the only alternative to being selective), and presumably the general direction in which they would tend as a whole, would form the basis of the Court’s adjudication. Of course Mr. Howe must realize that if the Court were to follow such a procedure, schools in the United States would still be segregated. Legally. The historic decision of 1954 was made possible only because the Court based its adjudication on the “solacing simplicities” of the Bill of Rights, rather than on the shameful accumulation of legal precedents that had consistently supported the “separate but equal” theory of equality.
The privilege of the Court to freshly interpret the Bill of Rights in the light of an ever-changing historical context, is what makes the Court a living interpreter of constitutional law and not its museum-case…
I would submit that it is our good fortune that Mr. DeWolfe Howe is a professor of law at Harvard, and that Warren, Goldberg, Douglas and Black are Justices of the Supreme Court.
New Haven, Connecticut
Mark DeWolfe Howe replies:
Mr. Ryerson has taken my reflections on the distorting uses of history as comment on the use of precedent. I had supposed that it was clear that my criticism concerned the ways in which social, political, and intellectual history have been molded by the Justices to authenticate decisions on current policy. I made no comments on the Court’s attitude towards judicial decisions as binding precedents. Despite Mr. Ryerson’s surprising suggestion to the contrary, the School Segregation Cases would seem to confirm my basic thesis. The wisdom and rightness of those decisions were derived in large part from the Court’s frank acknowledgement that the legislative history of the 14th Amendment did not provide an answer to the question before the Court. Mr. Ryerson sees the decision as based upon the simplicities of the Bill of Rights—a compendium of principles which had no bearing on the problem at issue. He further assumes that precedent did not support the decision. Surely it was clear to any student of constitutional law in 1954 that precedent was leading inexorably to the Court’s enlightened conclusion.
September 30, 1965