Book Reviews

What Mr. Bozell is saying is that the judges exceed their power whenever they challenge legisla tive supremacy, even in cases when the legislators go beyond the Constitution. Under this con struction, all our criticism of the court for failing to put an end to New Deal excesses in the Nine teen Thirties becomes irrelevant. Personally, as a veteran of the older wars that pre-date Earl Warren, I find this hard to take. In short, if Brent Bozell is right, the old contest between those who want the Supreme Court justices to be strict con structionists and those who want them to be loose constructionists 445 446 THE FREEMAN July is entirely beside the point. They shouldn't be passing definitive judgment on what the legislators do Ht all. Education and Religion Waiving the desirability of cor rect judicial review for the mo ment, let us look at Mr. Bozell's reading of the historical record.

The Warren Court has acted on the tradition that Charles Evans Hughes was right when he said, "We are under a Constitution, but the Constitution is what the judges say it is." Mr. Bozell spends some time on his proof, which seems irrefutable to me, that, under the Tenth (or States' Rights) Amendment, the individ ual states should be in full control of their educational establish ments and their laws covering voter qualification, provided they maintain "a republican form of government." The Congress that passed the Fourteenth Amendment, which guarantees "equal protection" of the laws to all U.S. citizens, had no manifest intention of interfer ing with local schools or of telling the states how they were to ap portion the voting for both houses of their legislatures. In fact, the same Congress that voted for con sidering the Fourteenth Amend ment also established schools in Washington "for the sole use of ... colored children," which is an indication that the "equal pro tection" clause was only intended to cover such things as the en forcement of contracts, the right to sue, the right to give evidence, to inherit, purchase, lease, sell, hold, and convey property, and to enj oy securi ty of person and ownership. This is not to say that segregated schools are a good thing; it is only to say that under the Tenth Amendment it is the business of the separate states to handle things not constitution ally assigned to the Federal au thorities.

Disregarding the intention of Congress in proposing the Four teenth Amendment, the Warren Court decided to make its own law about application of the equal protection clause to things that had been left to the states under the Tenth Amendment. It also translated the words, "Congress shall make no law respecting an establishment of religion," to mean that states should not make such laws, either. As for state sedition laws, the Warren Court argued in Pennsylvania v. Nelson that "Congress has intended to occupy the field of sedition" - and this despite the fact that the au thor of the Federal anticommunist act, Congressman Smith of Vir ginia, has said explicitly that he had no thought of interfering with 1967 THE COURT AND THE CONSTITUTION 447 the right of the states to pass antisedition laws on their own. Mr. Bozell reviews the Warren Court misinterpretation of the Constitution with evident dis taste for the wh~.e business. But his argument against judicial re view would be the same even if Congress had passed some fla grantly unconstitutional laws and the Warren Court had then pro ceeded to throw them out.

No Final Arbiter What Mr. Bozell contends is that there is no "final arbiter" of the Constitution. He goes deep into history to show that, far from inheriting a tradition of judicial review from Coke in Eng land and from the experience of the colonies before the Revolution, we had, actually, absorbed the opposite idea of legislative su premacy. Even Coke, he says, de voted the best part of his career to expounding the right of the English parliament to make what ever laws it chose to make; his early championship of the Bonham case, which could be interpreted as putting the courts above par liament, was just a tantalizing aberration. In the eleven years between the Declaration of Independence and the framing of the Constitu tion there were allegedly nine in stances in which the courts of the states presumed to sit in judg ment on what the local legislators had done. But when Mr. Bozell began to look into these instances in detail, he found that only one of them actually proves what the supporters of judicial review say of them all. In 1787, just when the Founders were about to meet in Philadelphia, a court in New Bern, North Carolina, actually proclaimed that one of North Carolina's legislative acts must "stand as abrogated." This, says lVlr. Bozell, "was a form of words never before uttered from a judi cial bench in America, or for that matter in the Anglo-Saxon world."

When Richard Spaight, one of the North Carolina delegates to the Constitutional Convention, heard of the decision, he wrote home to denounce it as "usurpation of au thority" and "contrary to the practise of all the world." So, if Spaight acquainted other delegates with the decision of the New Bern judges, he would hardly have helped prejudice them in favor of setting up a Supreme Court of the United States with full power to negate Congress. Mr. Bozell spends a lot of time on the mean ing of the Supremacy Clause in the U.S. Constitution, and reaches the conclusion that the Founding Fathers intended to let the judges of the separate state courts be the guardians of the Constitution 448 THE FREEMAN July in case of conflict between state and national laws. In the Course of Time If the Supreme Court was not intended as a "final arbiter," but merely as a court to render j udg ments in cases as they affected individual litigants, aren't we left with a final fuzziness that leaves the Bill of Rights at the mercy of legislators? Perhaps we are.

But James Madison, among others, thought we could live with it. The authors of the Federalist Papers thought that the natural processes of tension and competition among the various public authorities would finally settle things. If Con gress were to pass bad or uncon stitutional laws, it would be fi nally disciplined by the people. Or the courts might simply refuse to punish someone who had been victimized by an unconstitutional act, and Congress would be forced to reconsider its own behavior. Out of the tensions imposed by the workings of checks and bal ances, out of the stresses, strains, rivalries, and competitions of the consensus society, a "final" deci sion would emerge. Was Madison naive in suppos ing this? Is Mr. Bozell naive in following Madison? Well, suppose that the Supreme Court had not forced the integration issue. Isn't it likely that the individual states - yes, even Alabama and Missis sippi - would have found their way to recognizing the brother hood of man ,vithout being told they must do so with all deliberate speed? Mr. Bozell says that in a consensus society some things had best be left to the "flexibility of the fluid constitution," which al lows "our various governmental structures to absorb and reflect the diverse shifts in community consensus that are going on down below." And the question he fi nally asks is "whether the Warren Revolution is in the best interests of the American commonwealth, and, if not, what weapons are available for the CounterRevolu tion?" ~ TU£ FREEMAN AUGUST 1967 17, No.8 yI Unless we learn to live by the courage of our convictions, explains Leonard Read, our shortsighted bow ing to expediency win eventually put us out of business p. 451 yI John Sparks has something to say, too, about the practicality of business men who expect the government to do their work for them p. 459 yI The fiftieth anniversary of commu nism in Russia affords William Henry Chamberlin an opportunity for ap praisal that should be of interest to anyone who still has a choice ........... ,p.463 Y' An inquisitive student discovers what makes an entrepreneur tick ............ p.470 yt Speaking of anniversaries, Profes sor Coleson recalls a few that many of us have forgotten and reminds us of others free men should cherish ............ p.472 "" A Missouri housewife thinks that poverty of mind and soul may be more harmful to an individual than financial and material poverty p. 478 1" What does one expect in "a person of quality"? Well, try for size the defi nition offered from the Monthly Letter of the Royal Bank of Canada ....p. 481 "" Despite socialistic trends, suggests Ed Breese, there are ways an indi vidual can be free, if he tries ....p. 490 JII' In this third chapter, George Roche examines various social effects of the modern manifestations of political power , p. 493 yI And for a more detailed look at one of those interventions, join Milton Friedman on the subject of auto safety ............ p. 507 J;' John Chamberlain finds his cue in Public and Private Enterprise by Professor John Jewkes of England .. p. 509 Anyone wishing to communicate with authors may send first-class mail in care of THE FREEMAN for forwarding.