Psephology in Britain and France
| Date | 01 June 1957 |
| Author | Peter Campbell |
| Published date | 01 June 1957 |
| DOI | 10.1111/j.1467-9248.1957.tb00966.x |
| Subject Matter | Article |
188
NOTES AND REVIEW ARTICLES
sound’ this is, in principle, precisely the position to which Stone’s suggestion of
a
preferred
status
for
the guarantees of free speech in the constitution, has now led some members
of
the Court. In Mason’s
Security
Through
Frecdorn
there is printed
a
lettcr from
Mr.
Justice
Frankfurter to Stone on the
Gobitis
Flag Salute case2 in which Frankfurter implicitly
denies the possibility
of
a
double standard
of
judicial review. In the
more
recent decision
in which the Supreme Court upheld the prosecution of eleven leaders
of
the Communist
party,’
Mr.
Justice Frankfurter explicitly repeated his opposition to the doctrine that the
Court has
a
greater duty in free-speech cases to weigh competing interests
of
liberty and
security independently
of
the legislative judgement embodied in
a
statute. There is
a
schism
here every bit
as
fundamental
as
that
of
1936-7.
Stone’s principle rested upon the proposi-
tion that legislation which appeared on its face to be within
a
specific provision of the
Constitution such
as
the Fourteenth Amendment, and which therefore restricted the politi-
cal freedoms through the medium of which undesirable legislation could ordinarily be
relied upon to be repealed, might place upon the judiciary
a
stricter duty to measurc it
against the guarantees of the Constitution than legis!ative measures which made
no
inroad
into the political process of free speech.J Yet
if
the Court must really defer to the judge-
ment which the legislature has madc of the competing demands
of
collective and individual
economic interest, why should the majority opinion, embodied in
a
statute, about the
balance to be struck between collcctive security and civil liberties, provide an exception?
Whether
a
statute which on its face comes within
a
specific prohibition can truly be said
to fall within that prohibition is itself
a
matter upon which Congress has presumably
reflected and expressed its judgement in legislating. Once the case for deference
as
Holrnes,
Stone, and Brandeis expounded it in the economic sphere is accepted, it becomes difficult to
allow any logical stopping-point short
of
the concession that Congress may act (providing
some rational relation between objects and methods exists)
as
a
sovereign legislature. What
other conclusion could hold
if
it
is
true that ‘the legislature must be free to choose’ the
methods by which public issues
are
to
be s01ved.~ When economic reaction and judicial
review went hand in hand this may have been welcome doctrine
for
liberals. But review
seems to have changed its politics and
it
is curious to see present-day libertarians striving
to establish
a
theory
of
the judicial function which was derided twenty years ago in the
mouth
of
Mr.
Justice Roberts.
PSEPHOLOGY
IN
BRITAIN
AND FRANCE
PETER
CAMPBELL
University
of
Manchester
LIKE
an earlier observer
of
society, the British psephologist may well inquire whether ‘they
order this matter better in France’. He will find that they are ordering
a
rather different
matter.
It
is significant that sixty years ago
F.
Y.
Edgeworth was laying the foundations
of
national statistical analyses
of
elections in Britain while
H.
Avenel was laying the founda-
tions
of
constituency electoral sociology in France.
In
the years since
1945,
during which
electoral studies have flourished as never before, it is the national campaigns and the
Hughes’s biographer
has
expressed the opinion that the New Deal measures
of
the
early thirties ‘had been drawn
.
. .
with almost no regard
for
their constitutionality’. Pusey,
op. cit. ii. 768.
Minersviile
School
District
v.
Gobitis
310
US.
586.
Dennis
v.
United States
341
US.
494.
United States
v.
Carolene Pradircts
Co.
304
US.
144, 152, 153
n.
’
’
Morehead
v.
Tipaido
298
US.
587,
626 (Stone
J.).
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