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Justices in Collision
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16638 |
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BOOK WORLD
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| Issue
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10 / 1989 |
2,809 Words |
| Author
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Larry D. Nachman
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THE ANTAGONISTS
Hugo Black, Felix Frankfurter
and Civil Liberties in Modern America
James Simon
New York: Simon and Schuster, 1989
320 pp., $19.95
Few things characterize the American political system more and few things are less well understood than the way in which conflict and tension are built into its inner workings. People, when speaking of government, once used the organic analogy: The state was like an organism; its parts and subdivisions all acted together for the good of the whole. Later, when people became more accustomed to thinking about machines rather than living bodies, a mechanical analogy replaced the organic: The state was like a machine; its various components worked together for a common purpose. In both cases, the ideal presented is a harmony of the parts. American journalists and politicians still evoke such an ideal notwithstanding the fact that it is of the essence of democracy to produce no such harmonies. It is a system that embraces dissonances rather than a harmony of parts.
The electoral struggles and political conflicts typical of democracy reflect its central ideas: that members of society do not and should not have but one common interest and that differences which will always be found within society should be resolved again and again solely by the play of fair and peaceful political competition. The theme of conflict appears at every turn in the American Constitution, as its authors seemed to take devilish delight in having governmental officials placed forever on a collision course with each other. The famous "checks and balances" refers to this pattern of breaching the principle of separation of powers by creating overlapping powers and responsibilities at critical points throughout the system.
At the very heart of the American political system lies a deep and deliberate contradiction. America is a constitutional democracy. Yet there is an inherent contradiction between these two terms. To put the matter in its simplest form, democracy involves rule by majorities. Mechanisms are brought into being to give a majority a means of registering its judgments on the policies pursued by government. A constitutional system is a system of limited government; certain things may not be done or they can only be done in a certain way, even if a clear and determined majority wishes to do them. By and large, a consensus has existed in America that the system remain a constitutional democracy. The divisions--and they are deep, for both important procedural and substantial matters are at stake--have tended to focus on how and when to draw the lines, when to come down on the side of constitutional limitations, and when to give sway to democratic majorities.
The era of Black and Frankfurter
James Simon's The Antagonists is a well-written and thoughtful account of this key conflict between the values of constitutionalism and democracy as it appeared in issues brought before the Supreme Court during the years in which Justices Hugo Black and Felix Frankfurter served and contended against each other. Simon's work includes interesting biographical material as well as analyses of the legal and constitutional issues that engaged these two great jurists. As Simon shows,
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