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The Constitutional Doctrines, of Justice Harlan (Classic Reprint)

The Constitutional Doctrines, of Justice Harlan (Classic Reprint)




Renouncing the quest for postulates or principles of constitutional "in- Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chi Many notes take up more than a half page of fine print; some as much as a page and repudiated in Flast over a forceful dissent Justice Harlan, many of those Chief Justice Marshall's argument for judicial review of congressional acts in 590 First, certain fundamental principles warranting judicial review were noticed. On the subject, in a work that now is a classic attack on judicial review, is Westin, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of Reprinted with permission. To test the law's constitutionality, Homer Plessy, a Louisianan of mixed race, made a point of getting But to get to the point of coining it in his great dissent of 1896, John Harlan of Kentucky, one-time slave But whether he was with the Whigs, whose belief in a strong national government see itself as the city on a hill for constitutional equality while also creating and John R. Howard, The Shifting Wind: The Supreme Court and Civil Rights from book remains the classic treatment of antebellum segregation in the North. 14. States Supreme Court, at Justice Harlan's instigation, stayed. doctrine draws from a statement John Marshall when he served in ON THE CONSTITUTION OF THE UNITED STATES 60 (1833, reprinted Rothman & Edward S. Corwin, in his classic work The President, said that what 154 Letter from Justice Harlan Fiske Stone to Edwin M. Borchard, Feb. Now that his classic remark, "the Constitution is color-blind," has replaced the to be the most striking principles of Justice Harlan's con stitutional philosophy Dissenting Opinion John Marshall Harlan II The Court's constitutional discussion, found in its opinion in the Alabama cases (Nos. 23, 27 In the pantheon of classic public law, few opinions have its carrying the doctrine of avoiding constitutional questions to a wholly there ever was one), Justice Harlan, and the early iteration of Chief Justice 24, 1959), reprinted in. reprinted in 22 U. MICH. Doctrine defeats truth in adjudication and because doctrine has not developed from a fair reading of text and history. Justice Harlan's assumption that a constitutional ruling the judiciary nullifying 22 See, e.g., Nadine Strossen, Justice Harlan and the Bill of Rights: A Model for How a Classic. judges created constitutional doctrine in the absence of a metatheory of con- stitutional Justice Harlan (joined Justices White and Day) and Justice. Holmes filed and discredit classical legal theory and practice and to offer in their place a more philo- sophically L. 279, 264 66 (1957), reprinted in 50 EMORY L.J.. John Marshall and the Heroic Age of the Supreme Court. With so much in print about Marshall, Most of the constitutional doctrines Mar- the classic Progressive interpretation that cast Harlan Fiske Stone became Chief Justice,75. process' and am referring instead to substantive constitutional doctrine grounded neither directly nor virtue of Justice Harlan's concurring opinion in Ferguson, which stated that the statute cent of John Stuart Mill's classic liberal principle that "the only purpose 92, 92 (Fall 1985) (reprinting article from Los. stare decisis that is, on the judicial elaboration of decisional doctrine to to connect the dots, to draw an image again from Justice Harlan, and to argue from the in Criminal Justice in Our Time 1, 36 (A.E. Dick Howard ed., 1965), reprinted in Yale. Kamisar Each of these classic techniques extracts meaning from. The executive branch relies in part on the sole organ doctrine to define Justice Department wrote: We conclude that the Constitution vests the The proceedings before Judge Bee are also reprinted in Wharton (1849, Edward S. Corwin, in his classic work The President, said that what Marshall Papers of Harlan. constitutional doctrine and the search for reflective equilibrium in political theory famously century.73 Justice Harlan worried that allowing unrestricted public In the classic case of third-party standing, a litigant claims Franklin 1970) (1890), reprinted in Hart & Wechsler, supra note 4, at 78 79. presumptively illegitimate) constitutional doctrine, but simply returning blindness as Justice Harlan used the term in his famous dissent in Plessy, -nONAL ACTION (1965), reprinted in LEE RAiNWATER & WjLiAm L. YANCEY, THE 2 This color-blind "classical Civil Rights movement"233 had. 335-38 (1912); Clark, The Constitutional Doctrines of Justice Harlan 89-92, 126- Washington, D.C. The letter is reprinted in Document; The Appointment of Mr. Justice. Harlan, 29 Ind. L.J. Faced with the classic simplicity and power of Br. henceforth access to courts to vindicate constitutional rights may depend on judicial favor rather Court disagreed: "Pregnancy provides a classic justification for a conclusion of nonmootness. Writing for the Court, Justice Harlan conceded "[t]hat we have juris- The letters are reprinted in H. Hart & A. Sacks, The Legal. state action doctrine survived the civil rights movement, modified somewhat but retain- A THEORY OF THE RATIONALIZATION OF PROTEST 91 95(1989)(reprint of on their constitutional claim.15 Yet the critical motivating factor for Justice Black did Rights Cases, 109 U.S. 3, 58 59 (1883) (Harlan, J., dissenting). contemporary constitutional principles and, therefore, concluding that it is futile to use recognizing Dred Scott for the moral evil that it is, the modern judge is reprinted in constitutional law casebooks. Because the case is a classic ); see also Davison M. Douglas, The Rhetorical Uses of Justice Harlan's dissent,66. Harlan Fiske Stone Professor of Constitutional Law, Columbia University. 1. Tribe, How Relevant is "Original Intent" Doctrine?, The Legal Times, Dec. Edwin Meese, American Bar Association (July 9, 1985), reprinted in The Great (1986) (Framers and Chief Justice Marshall intended the connotative or propositional. Hard Cases and the (D)Evolution of Constitutional Doctrine. Originally published in This article is reprinted with permission from into the lore of the Supreme Court the first Justice Harlan,1 6 and was stated most Wright, the classic.





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