Graham, Howard Jay

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 33 | Issue 4 Article 6Summer 1958The Development of Constitutional Guarantees ofLiberty, by Roscoe PoundHoward Jay GrahamLos Angeles County Law LibraryFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Constitutional Law CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationGraham, Howard Jay (1958) "The Development of Constitutional Guarantees of Liberty, by Roscoe Pound," Indiana Law Journal: Vol.33: Iss. 4, Article 6.Available at: http://www.repository.law.indiana.edu/ilj/vol33/iss4/6BOOK REVIEWSTHE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY.By Roscoe Pound. New Haven: Yale University Press. 1957. Pp. vi,207. $3.50.To epitomize 800 years of constitutional development in four hourlylectures is a challenging undertaking. The story which Dean Poundretells in this series (originally delivered at Wabash College in 1945) isthe timeless one of the "development of our constitutional guaranteesout of the medieval faith in law, of how the idea of those guaranteesbecame involved in the very idea of law, and of how that idea maintaine'citself against masterful monarchs and in eras of profound social andeconomic change to become the law of the land in formative America."(p. vi)This and much more is accomplished within the four-period frame-work: "Medieval England" (to the Reformation) -the bases, begin-nings, distinctive features of the Common Law and constitutionalism;"The Era of the Tudors and Stuarts"-royal prerogative matched andcheckmated by lex terrde, "common right and reason"; "In the AmericanColonies"-parliamentary supremacy itself challenged by repeated ap-peals to "ftindamental law"'and to history; "From the Revolution to theConstitution"-chartered "inalienable rights of Englishmen" finallymide explicit in written constitutions which at once began to be judiciallyconstrued as* the supiene fundamental law.Dean Pound thus stops with the'adoption of the Federal Bill ofRights,' characterizing American constitutional development along withthe English. The unifying theme is* the'Common, Law heritage andtechnique, "the sur&-footed Angl6-Saxofi's 'habit of dealing with thingsas they arise, and in the .light of experience."' (p. 19)' Over and over, itis stressed that "Law," -ithin thistradition, is a'fuidamental, justifiablerule binding. ofi rulers and peoples alike-not 'the. mere product of govern-ment or of -authority., Capacity to challenge. the procedural operations ofgoverninent-.is'the basic distinctive feature.:: Here is 'the nub 'of it: Gov-ernment by consent'd &eloped and maintained itself, h6t because English-men originally- w ere, mote .battache'd t6 th'eir' interest "'r 'to .the idea -of auniversal natural law, but-because, from the time of- Magna -Carta onward,rulers and ruled habitually particularized their powerg, 'righs,'andrelations; and cast, them into documentary, pseudo-contractual form. "B0tiINDIANA LAW JOURNALparties then proceeded to regard such documents as bases for subsequentinterpretation and bargaining, especially whenever "arbitrary" or "un-reasonable" practices threatened the pledged orderly administration ofjustice according to the "law of the land."Intense historical- or procedural-mindedness- Sticklerism- thismight be called. Certainly the Stuarts and Hanovers thought of it inthis light. Yet more was involved. An Englishman, convinced that arule laid down by his sovereign violated natural right and reason, had a"place to go." (cf. p. 10) From Angevin times onward "theplace to go" was to the royal chancery and courts. Judges developedan independence, a professionalism, and at length, a body of precedentthat became bases for limitations, first on royal prerogative, then on par-liamentary, and finally on legislative-executive power. A point often over-looked is that this same belief in natural law pervaded the Roman andmedieval worlds. In England it combined with an individualistic lay-professional system of rights protection. This we tell ourselves, at timespretty smugly, is the distinctive Anglo-American way. When an entirepeople commits itself to a legal-political system of this order and isprovident and fortunate enough to develop machinery and traditionsthat permit individual challenge of arbitrary authority, results areprecious, and as the world has gone, very nearly unique.To overlook this enduring lay element and contribution would beto miss half the story-and almost the point of the English and AmericanRevolutions and the Civil War Amendments. We unquestionably owemuch to lawyers; but we owe even more to a Law that progressively has"constitutionalized" political experience and translated a vague, evolvingethico-moral sense and quest for personal and social justice into "the lawof the land." Laymen occasionally have led lawyers here. Research forLord Mansfield's decision abolishing slavery in England' was done forFrancis Hargrave by Granville Sharp, a learned linendraper-fishmongerturned government clerk.2 The lay-philanthropist William Penn compiledand published the first American law treatise in 1687-fittingly entitledThe Excellent Privilege of Liberty and Property, a commentary on thelaw of the land clause of Magna Carta made up from Coke. A band ofOberlin divinity students and evangelists successfully propagated theAbolitionists' constitutional argument against slavery and race discrimi-nation. The overlapping guarantees of Section One of our FourteenthAmendment today preserve and extend their accomplishment.1. The Case of James Sommersett, 20 How. St. Tr. 1 (1772).2. LASCELLES, GRANVILLE SHARP AND THE ABOLITION OF SLAVERY IN ENGLAND(1928) ; Fiddes, Lord Ma,,field and the Sommersett Case, 50 LAW Q.R. 499 (1934).BOOK REVIEWSWhile we readily concede all this, essentially it is an independent,historically-endowed judiciary-one commissioned to weigh competingindividual and social claims under guidance of professional counsel, andto test and interpret the statutes (product of yet another branch of thatmedieval Curia Regis)-which vitalizes and distinguishes this system,and moves us to reverence, and at times to wonder.Broadly viewed, there can be no doubt that the doctrines and idealsof due process and equal protection, conceived substantively in the UnitedStates, constitute the core of Anglo-American constitutionalism, as theydo also of Dean Pound's narrative. In some ways these lectures are themore arresting and evocative for their failure to rehearse American detail.The mind readily extrapolates the current and familiar; experience anddissent recall the possible weakness-the ever-growing subjectivity, thepotentially universal reach of due process, its built-in ambiguity, seem-ingly unfettered discretion, indiscriminate lumping of issties that oftenbenefit from more precise analysis. Yet, might not American judicialreview and supremacy have proved unworkable without this flexible,introverted instrument?Whether this last point be conceded or not it is plain that there havebeen advantages as well as hazards. How, then, are we to interpret thepublic's misgivings, the recurrent disillusionment with due process? Ma-turity of judicial review presumes a maturity of attitude toward it. TheJustices' own humility in this field is understandable. (Justice Jacksonreminded his associates that new and changing problems "cast us morethan we would choose upon our own judgment . . . . [W] e act- in thesematters not by authority of our competence but by force of our commis-sions.") 3 Much more difficult to accept and understand are the currentevasions of some bar groups, unreservedly committed (professionally) tothe principle of judicial supremacy, yet blind to present obligations, mutebefore assaults on a beleaguered Court. Certainly the time has come formore affirmative leadership: American ideals and the vitality of our legalsystem alike demand that race relations be squared with the ninety yearold guarantees of the Constitution.Constitutionalism and due process make heavy demands on morethan the Bench. That is the essence of this story. As Americans hereto-fore have thought of it, it is the premise of Liberty itself.Dean Pound was here unable to review these later issues and cases.People never have been, and never can be, of one mind about many ofthem. The point is that for us there can be no turning back now from3. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 640 (1943).INDIANA LAW JOURNAL,Runnymede or Marbury4 or Yick Wo v. Hopkins.5 The Harvard philos--opher Josiah -Royce saw the whole of ethics and civilization and lawrooted in the ideal of "loyalty to loyalty." "Loyalty to loyalty to law"best epitomizes Dean Pound's vision of our inheritance and our future.Grateful readers of these lectures accordingly can hope for another serieson the problems inherent in contemporary due process and equal protec-tion-themes brilliantly discussed in recent articles by Judge Hastie'and Professor Kadish.7 The lessons and the way ahead again are fitsubjects for the Dean of American jurisprudence.HOWARD -JAY GRAHAMtDESEGREGATION AND THE LAW. By Albert P. Blaustem and Clar-ence Clyde Ferguson, Jr. New Brunswick, New Jersey: Rutgers Uni-versity Press. 1957. Pp. xiv, 327. $5.00.After four years the decision of the Supreme Court in the schoolsegregation cases' is still defied in large areas of the country. Thisdefiance by people who regard themselves as law-abiding is necessarilycoupled with a deep feeling that the Court's decision lacks legal justifica-.tion: that the Constitution itself does not bar racial segregation and that.the.'Supreme Court stepped outside its competence as interpreter of thie-Constitution to impose upon the South the personal preferences of the-justices.The authors of Desegregation and the Law have devoted their bookto this critical impasse. They seem to have realized that the situationcalls not only for accurate information but also for a calm and temperateattitude which alone can permit a reasoned approach to the problem.The authors bring both, in generous measure, to the book. Their statedgoal is not to debate the constitutional issues but rather to explain the4. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).5. 118 U.S. 356 (1886). "Though the law itself be fair on its face and impartialin appearance, yet, if it is applied and administered by public authority with an evil eyeand an unequal hand, so as practically to make unjust and illegal discriminations betweenpersons in similar circumstances, material to their rights, the denial of equal justice isstil within the prohibition of the Constitution." Id. at 373.6. Hastie, Judicial Method in Due Process Inquiry, in GOVERNMENT UNDER LAW326 (Sutherland ed. 1956).7. Kadish, Methodology and Criteria in Due Process Adjudication-A Surveyand Criticism, 66 YALE L.J. 319 (1957).' Bibliographer, Los Angeles County Law Library; Guggenheim Fellow, 1958.1. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Boiling v.Sharpe, 347 U.S. 497 (1954).

The Development of Constitutional Guarantees of Liberty, by Roscoe Pound

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