SECURING LIBERTY THROUGH LITIGATION — THE PROPER ROLE OF THE UNITED STATES SUPREME COURT*

DOIhttp://doi.org/10.1111/j.1468-2230.1973.tb01358.x
Date01 March 1973
Published date01 March 1973
THE
MODERN LAW REVIEW
Volume
36
March
1973
No.
2
SECURING LIBERTY THROUGH LITIGATION
IJNITED STATES SUPREME COURT
*
-THE PROPER ROLE
OF
THE
As
I
count
it
an honour to claim interim membership
in
this
university and this School which have graciously given an itinerant
American lawyer academic shelter during this sabbatical year,
so
too
I
count it an honour to be asked to talk to you this afternoon
about the legal problems and legal institutions which are my chief
concern.
I
make
no
apology for the fact that these are American
problems and American institutions,
for
they happen to be my
only stock-in-trade. Moreover,
I
submit that the ways
in
which
Americans have sought to deal judicially with the intersections
of law and liberty are matters in which your country has a
significant stake.
Partly this is
so
because, as we in America approach the close of
the second century of our separate national existence, we remain
inescapably accountable to you.
,Continuity with the past,” as
Holmes observed,
(‘
is not a duty,
it
is only
a
necessity.” But in
this instance duty reinforces necessity: The very reason the
American colonists resisted the Ministers and armies of George
I11
was to preserve the rights
to
which they believed themselves
entitled under what our Declaration of Independence calls
(‘
the
free System of English Laws.” And of the several stated objectives
of our Constitution, the last and most comprehensive is
to
secure
the Blessings of Liberty to ourselves and our Posterity.” In short-
and unlike some other colonists who have in the past decade
purported to emulate us by unilaterally declaring themselves inde-
pendent of Crown and Parliamendwe, seeking
to
keep faith with
the past and with the future, would not jettison, even if
we
could,
*
This
paper
in
a
somewhat condensed version
of
a
lecture given at the University
of
London on February
14.
1972.
VOL.
36
(2)
118
1
114
THE
MODERN
LAW
REVIEW
\’or,,
3F
those privileges and responsibilities of freedom which are our
share of this common heritage. Of
our
trusteeship you are entitled,
I
think even obliged to inquire-as we of yours.
I
To
couch the great issues of law and liberty in adversary form
is
part of the American idiom. The idiom implies the fact that
most American constitutional issues present themselves in litigation,
for judicial review and resolution, with the Supreme Court
of
the
United States as ultimate arbiter.
So
it has been since
1803,
when
the court, speaking through the fourth Chief Justice of the United
States, John Marshall, decided
Alarbury
v.
Madison.’
The crucial
point about
Marbury
v.
Madison
was not Marshall’s assertion or
description of the power of judicial review-it had been asserted
and described a good deal more compellingly by Alexander Hamilton
in the 78th Federalist papers in 1788-nor his tour de force use
of
the power to inflict on Thomas Jefferson and James Madison
a
pyrrhic victory. The crucial point was that the court
exercised
the power
in order to decide
a
law
suit:
What this means is
that the Supreme Court
is,
first and foremost, a
court.
Article
I11
of the Constitution confines it and all other courts of the United
States to the exercise of
the judicial power ”-that is to say, the
decision of
cases
or
controversies.” Thus the Supreme
Court’s exalted power of ultimate constitutional adjudication stems
from the particular untidy facts before it. And the problem
I
wish chiefly to consider this afternoon is what happens in those
instances, happily fairly infrequent, when the court misperceives
or simply ignores some or all of the dominant facts before it-in
effect cutting itself free from the controversy which is the source
of its authority.
I
shall argue that the results of such judicial
emancipation can be calamitous. And this is
so
because,
as
I
hope to suggest, the use of litigation as the chosen instrument
of
constitutional interpretation is not quixotic, nor the fortuitous
historical fall-out of the Federalist Marshall’s vigour and skill in
politically check-mating the Republican Jefferson, ‘but
is
rather
the
controlling feature
of the system Americans have fashioned to
cc
secure the Blessings of Liberty.”
To show that this is so-in order then to show the untoward
consequences of the court’s forgetting that
ee facto
jus
oritur-I
will turn for a moment to some passages from Lord Bryce’s valiant
attempt to explain the doctrine of judicial review to his fellow
Englishmen. First Bryce points out how, under familiar principles
of
agency, Congress (and of course the illustration holds for any
other branch of the federal or state governments) can enact no
1
1
Cranch
137 (1803).
For the background
of
Marshall’s great decision, we
Mr. Marshall, Mr. Jefferson, and
Marbury
V.
Madison,”
the felicitous
Presidential Address
to
the Bentham Club delivered
by
the present Chief
Justice of the United States, Warren
E.
Burger, on February
1, 1072.

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