that in the first three decades of this century, the Supreme Court upheld the sanctity of private property against the claims of a majority of the people which the legislatures sought to satisfy. While no one should underestimate the historic significance of the Court's role in the current struggle for racial equality, let us also not forget that the Court held basic Civil Rights Acts of the Reconstruction Period to be unconstitutional in 1883," upheld the separate-butequal doctrine in 1896" and as late as 1935 ruled, unanimously, that political parties were purely private organizations entitled to bar Negroes from voting in their primaries." 3980 Bickel's jibe at Emerson is warranted, but he fails to appreciate its full significance. Although Emerson thinks Baker v. Carr "moves broadly in the direction of developing and supporting procedures necessary for the effective operation of a modern democratic system,"" he is not a "super-democrat.” He proves this by preceding his praise of the Court for Baker v. Carr with an aside criticizing the Court for its decisions in the Smith and McCarran Act cases which he thinks "have no future in the democratic process." While Emerson professes to see the Court "as an institution for supporting and vitalizing the mechanisms of the democratic process without undertaking to supervise the results reached by that process,' it is a fair guess that he would not approve the decisions in the Smith Act and McCarran Act cases even if these acts had unanimously passed a Congress elected from districts of strictly equal population and had been signed enthusiastically by a President elected by an overwhelming majority of the popular vote. - But there is also paradox in the position of the champions of judicial self-restraint on the apportionment issue. Restraint is called for because of majoritarian assumptions that the Court is reviewing the acts of representatives who are elected by a majority of the people and who can be turned out of office if their acts are disapproved by a majority of the people. But when malapportionment frustrates the possibility of majority rule, the case for judicial restraint is weakened considerably. Judicial intervention under these circumstances is not nearly as intolerable as the self-perpetuation of minority rule. No more suitable role for the Court can be envisaged than to make it possible for majority rule to function because, without it, the whole idea of self-government is debased. And past experience gives us every reason to think that the scope of freedom including the protection of minority rights — will expand progressively as the electoral base of our representative institutions becomes broader and more democratic. Those who share Mr. Justice Frankfurter's intellectual outlook do him a disservice by disparaging the underlying assumptions of democratic self-government in order to discredit Baker v. Carr. 26 Civil Rights Cases, 109 U.S. 3 (1883). 30 Ibid. Professor Emerson cites "Dennis v. United States, 341 U.S. 494 (1951). See also, Scales v. United States, 367 U.S. 203 (1961); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961).” Id. n. 3. 31 Id. at 68. THE COURT OF THE UNION or JULIUS CAESAR REVISED Philip B. Kurland* Dean O'Meara's subpoena was greeted by honest protests from me that I had nothing to contribute to the "Great Debate" over the proposed constitutional amendments that are the subject of today's conference. The Dean, apparently of the belief that suffering might help this audience toward moral regeneration, suggested that I come anyway. I proceed then to prove my proposition and to test his hypothesis. I have chosen as a title for this small effort: "Julius Caesar Revised." "Revised" because, unlike Mark Antony, I have been invited here not to bury Caesar but to praise him. Our Caesar, the Supreme Court, unlike Shakespeare's Julius, does not call for a funeral oration, because the warnings of lions in the streets · instead of under the throne were timely heeded as well as sounded. Caesar was thus able to rally his friends to fend off the death strokes that the conspirators would have inflicted. The conspiratorial leaders were the members of the Council of State Governments. The daggers they proposed to use were the chief justices of the various high state courts, to whom they would entrust, under the resounding label of "The Court of the Union," the power to review judgments of the Supreme Court of the United States whenever that tribunal dared to inhibit the power of the states. It should be made clear that the chief justices of the states would be the instruments of the crime and not its perpetrators. You will recall that when these chief justices spoke through their collective voice, the Conference of Chief Justices, in condemnation of some of the transgressions of the Supreme Court, they asked only that the physician heal himself. They did not propose any organic changes, however little they liked the Court's work. Their report stated:1 when we turn to the specific field of the effect of judicial decisions on federal-state relationships we come at once to the question as to where power should lie to give the ultimate interpretation to the Constitution and to the laws made in pursuance thereof under the authority of the United States. By necessity and by almost universal common consent, these ultimate powers are regarded as being vested in the Supreme Court of the United States. Any other allocation of such power would seem to lead to chaos. Even in the absence of Caesar's murder, however, it is possible to pose the issue raised by Brutus: whether our Caesar has been unduly ambitious and grasping of power. And implicit in this question is a second: if Caesar's ambitions do constitute a threat to the republic, is assassination the appropriate method for dealing with that threat? Professor of Law, University of Chicago Law School; A.B., University of Pennsylvania; LL.B., Harvard Law School; member, Chicago and American Bar Associations. 1 REPORT OF THE COMMITTEE ON FEDERAL-STATE RELATIONSHIPS AS AFFECTED BY JUDICIAL DECISIONS, August, 1958. The second question is easier to answer than the first. Whether Caesar be guilty or not, it would seem patently clear that his murder, as proposed, must be resisted. Its consequences could only be costly and destructive civil conflict resulting in the creation of a new Caesar in the place of the old one, a new Caesar not nearly so well-equipped to perform the task nor even so benevolent as Julius himself. It is probably because of the obvious absurdity of the method chosen for limiting the Supreme Court's powers that there is today even more unanimity in opposition to the proposal than existed when Caesar was last attacked — not by the current self-styled patricians, but by the plebeians under the leadership of Franklin Delano Roosevelt. For then it was only the conservatives that came to the defense of the Court; the liberals were prepared to destroy it. Today, as Professor Charles Black has made clear, even if in rather patronizing tones, the conservatives are solidly lined up in defense of an institution many of whose decisions are repugnant to them. The conservatives would seem to be concerned with the preservation of the institution; the liberals with the preservation of the benefits that the current Court has awarded them. For the latter the contents of Caesar's will appears to make the difference. It would seem, therefore, that only those close to the lunatic fringe, the Birchers and the White Citizens Councils and others of their ilk, are prepared to support the purported court-of-the-union plan. Even in the Council of State Governments the proposed amendment was supported by a majority of only one vote. The few legislatures that have voted in support of this amendment are those normally concerned with their war on Robin Hood and similarly dangerous radicals. I do not mean to suggest that the Court is not in danger of being restrained. But I do think that the proposed method of destruction is not a very real threat unless this country is already closer to Gibbon's Rome than to Caesar's. On the other hand, to say that the plan for a Court of the Union is an absurdity is not to answer the question whether Caesar suffers from an excess of ambitions. The Great Debate called for by the Chief Justice at the American Law Institute meeting last May has not really concerned itself with this problem. The Great Debate has taken the form of rhetorical forays. Each side argues that the proposed limitation on the powers of the Court would result in the removal of national power and the enhancement of the power of the states. The forces of Cassius and Brutus argue that this is a desirable result because the dispersal of government power is the only means of assuring that individual liberty will not be trodden under the tyrannous boots of socialist egalitarianism. Antony contends that the adoption of the proposal would be to return us to a fragmented confederation impotent to carry on the duties of government in the world of the twentieth century. Roosevelt's words about a "horse and buggy era" are this time used in defense of the Court. With all due respect, I submit that the essential question remains unanswered. The Talmud tells us that ambition destroys its possessor. Does the Court's behavior invite its own destruction? 2 BLACK, THE OCCASIONS OF JUSTICE 80 (1963). In what ways is it charged that this Caesar seeks for power that does not belong to him? Some such assertion can be rejected as the charges of disappointed suitors. But there are others that cannot be so readily dismissed on the ground of the malice of claimant. Allow me to itemize a few of the latter together with some supporting testimony: Item: The Court has unreasonably infringed on the authority committed by the Constitution to other branches of the Government. Listen to one of the recent witnesses: The claim for judicial relief in this case strikes at one of the funda- This Court, no less than all other branches of the Government, is bound by the Constitution. The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court's own functions in the constitutional system. This is not the charge of a Georgia legislator. These are the words of Mr. Justice Harlan, spoken as recently as last February 17, in Wesberry v. Sanders.' Item: The Supreme Court has severely and unnecessarily limited the power of the states to enforce their criminal laws. Thus one recent critic had this to say: The rights of the States to develop and enforce their own judicial - This, I should tell you, is not the Conference of Chief Justices complaining about the abuses of federal habeas corpus practices; it is Mr. Justice Clark expressing his dissatisfaction in Fay v. Noia. Item: The Court has revived the evils of "substantive due process," the cardinal sin committed by the Hughes Court, and the one that almost brought about its destruction. Here another expert witness has said: Finally, I deem this application of "cruel and unusual punish- 3 376 U.S. 1, at 48 (1964) (dissenting opinion). 4 372 U.S. 391, 446-47 (1963) (dissenting opinion). today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding. This is the hand as well as the voice of Mr. Justice White in Robinson v. California. Item: The Court has usurped the powers of the national legislature in rewriting statutes to express its own policy rather than executing the decisions made by the branch of government charged with that responsibility. Listen to two deponents whose right to speak to such an issue is not ordinarily challenged. What the Court appears to have done is to create not simply a duty of inspection, but an absolute duty of discovery of all defects; in short, it has made the B&O the insurer of the condition of all premises and equipment, whether its own or others, upon which its employees may work. This is the wholly salutary principle of compensation for industrial injury incorporated by workmen's compensation statutes, but it is not the one created by the F.E.L.A., which premises liability upon negligence of the employing railroad. It is my view that, as a matter of policy, employees such as the petitioner, who are injured in the course of their employment, should be entitled to prompt and adequate compensation regardless of the employer's negligence and free from traditional commonlaw rules limiting recovery. But Congress has elected a different test of liability which, until changed, courts are obliged to apply. No, those are not the words of Mr. Justice Frankfurter, but those of his successor, Mr. Justice Goldberg, in Shenker v. Baltimore & Ohio R. Co. Listen to the same criticism in even more strident tones: The present case... will, I think, be marked as the baldest attempt by judges in modern times to spin their own philosophy into the fabric of the law, in derogation of the will of the legislature. Here we have Mr. Justice Douglas in dissent from the opinion of Mr. Justice Black in Arizona v. California. Item: The Court writes or rewrites law for the purpose of conferring benefits on Negroes that it would not afford to others. I offer here some testimony endorsed by Justices Harlan, Clark, and Stewart, in N.A.A.C.P. v. Button:" No member of this Court would disagree that the validity of |