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The Constitutional Impact on Public Policy: From the Warren Court to the Burger Court and Beyond
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11190 |
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MODERN THOUGHT
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3 / 1986 |
7,414 Words |
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Philip B. Kurland
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To speak on the subject defined by the title of this talk raises a basic problem akin to that of the little boy who said that he knew how to spell "banana" but didn't know when to stop. I have some awareness of each of the elements contained in the subject of my assignment; the problem is to put them together to answer what is in fact the question presented: What was the constitutional impact on public policy of the three decades of decisions by the Warren and Burger Courts? The provisions of the Constitution and their origins have been the central focus of my work for about forty years. I know, perhaps, somewhat more about the crimes committed in the name of the Constitution by the Supreme Court, especially over the last thirty years. That has provided my livelihood along with some sadistic pleasure. However, this knowledge and the smattering about public policy cannot be brought together in such a way as to give a straightforward answer to what appears to be a straightforward question. I shall, therefore, offer some ruminations of each of the elements of the problem in the context suggested by the Constitution's bicentennial celebration.
First, note the point of view from which I speak. I am a lawyer who teaches, not a scholar whose discipline is law, not a practitioner, and certainly not a statesman. I learned my law in an old-fashioned school. My mentors, from whom I learned an attitude toward constitutional law more than its content, were Thomas Reed Powell, Learned Hand, and Felix Frankfurter, themselves students in the same way as Oliver Wendell Holmes--the judge, not the autocrat of the breakfast table.
Paul Freund once began a lecture on Mr. Justice Brandeis in this fashion:
A critic, as unperceptive as he was unfriendly, once remarked that Charles Evans Hughes possessed one of the finest minds of the eighteenth century. A more plausible observer might maintain that Louis D. Brandeis had one of the finest minds of the nineteenth century. It is certain that most of the central features of the twentieth century were antipathetic to his view of man and man's potentialities.
I think of myself as the critic did of Hughes or perhaps as Freund did of Brandeis. I find the problems of the mass urbanized society in which the individual is subordinated to the class to which he is assigned highly uncongenial. Except for modern plumbing and sanitation, I cannot think of much real progress over the recent centuries. Indeed, I am so antediluvian as to be unable to use a word processor or to understand any computer more complex than an abacus. And so, one may very well attest that I am viewing my subject through the wrong end of the telescope.
Let me begin then by attempting to speak of the Constitution itself as an expression of public policy. Just as with law, I am informed, public policy may be divided into the two categories of the substantive and the procedural. And when one looks at the text of the Constitution, it is readily apparent that the public policy expressed there is essentially procedural rather than substantive. In effect, it assigns or allocates to different parts of government the functions of making substantive public policy, and it specified the manner in which that policy must be made if it is to be legitimate. It does not, generally, say what the substantive policy thus created should be.
It is also
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