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Judiciary_401-450.indd 28 5/10/11 3:24 PM 21 Arguments for Judicial Power ofRevision ChiefJustice Marshall WEREearly claims to extraconstitutional power were made in the name of "natural law," the present fashion is to invoke the "living Constitution" when it is sought to engraft or amputate a limb.1 Commentators at a loss to justify judicial arrogations fall back on Marshall's sonorous reference to a "constitution intended to endure for ages to come."2 In an oft-quoted apostrophe, Justice Frankfurter declared that it "expressed the core of [Marshall's] constitutional philosophy .. . the single most important utterance in the literature ofconstitutionallaw."3 It has become a mythic incantation.4 ChiefJustice Hughes, when conI . The "doctrine of the living Constitution amounts to little more than willful disregard ofthe express or implied intent ofthe framers."James McClellan,Joseph Stmy and theAmerican Constitution II6- II7 (I97I). Thomas Grey more diplomatically states that "Our characteristic contemporary metaphor is 'the living Constitution' .. . sufficiently unspecific to permit the judiciary to elucidate the development and change in the content ofthose rights over time." "Do We Have an Unwritten Constitution?," 27 Stan. L. Rev. 703, ?II (I975). 2. Auerbach, "The Reapportionment Cases: One Person, One Vote-One Vote, One Value," 1964 S. C. Rev. I, 75; cf. Louis Pollak, "The Supreme Court Under Fire," 6 J. Pub. L. 428, 44I (1957). 3· Frankfurter, "John Marshall, and the judicial Function," 69 Harv. L. Rev. 2I7, 2I82I9 (I955). That utterance, Frankfurter said, requires "a spacious view in applying an instrument of government 'made for an undefined and expanding future.' "Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596 (I952). Compare the severely restricted gloss Marshall put upon his words, infra at notes I2-18. And compare the Founders' views as to change by amendment. Supra Chapter I7 at notes 15-22. 4· "It is important," said justice Frankfurter, "not to make untouchable dogmas of the fallible reasoning of even our greatest judge." Frankfurter, supra note 3 at 2 I9. Judiciary_401-450.indd 29 5/10/11 3:24 PM Argumentsfor Judicial Power ofRevision fronted by the "mortgage moratorium"-"impairment ofcontract" problem , declared: If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them/ the statement carries its own refutation. It was to guard against such a narrow conception that ChiefJustice Marshall uttered a memorable warning-"We must never forget that it is a Constitution we are expounding ... a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."6 At best Marshall's dictum represents a self-serving claim of power to amend the Constitution. In Justice Black's words, "in recalling that it is a Constitution 'intended to endure for ages to come,' we also remember that the Founders wisely provided for the means of that endurance: changes in the Constitution are to be proposed by Congress or conventions and ratified by the States."7 Claims to the contrary need to be measured by Lord ChiefJustice Denman's observation that "The practice of a ruling power in the State is but a feeble proof of its legality."8 Such judicial claims stand no better than the bootstrap "precedents" created by a number ofpresidents for reallocation to themselves ofthe warmaking power confided to Congress, in justification of single-handed 5. Many are the instances in which the Framers did place an interpretation upon their words, or used words of known common law meaning. To phrase the issue in terms of what meaning they "would have placed upon them" beclouds it. 6. Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 442, 443 (1934). Small as is my esteem ofJustice Sutherland, I consider nevertheless that his dissent has a firmer historical base. My friends inquire whether I am not troubled to find myselfin such company . Edmund Wilson called this "the 'bed-fellow' line ofargument, which relies on producing the illusion of having put you irremediably in the wrong by associating you with some odious person who holds a similar opinion." Edmund Wilson, Europe W ithout a Baedeker I54 (I966). To which I would add, "I would rather be right with my enemy than wrong with my friend." 7· Bell v. Maryland, 378 U.S. 226, 342...

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