Abstract
Judicial decision is a function not only of the concept of law, but also of its institutional framework. While the concept of law establishes the tasks of the judge in the search for purpose, authority and practicability, these tasks must be precised and shaped further in the concrete setting of governmental powers. This is necessary, above all, because the creative process of judicial decision must be kept within the bounds of constitutional government. “It is by institutionalizing its power, in setting organic limits for it,” observes Charles de Visscher, “that the State establishes the distinction between politics and law.”1 This principle has been exemplified clearly through the historical development of an independent judiciary. Independence has been accompanied by institutional limitations. Responsible judicial decision can be assured only by procedures and safeguards which depersonalize and circumscribe the exercise of judicial power.
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References
Bachof, “Die richterliche Kontrollfunktion im westdeutschen Verfassungsgefüge,” in Festschrift Hans Huber, 26, 37 (1961).
See Kägi op. cit., (n. 5), p. 88ff. The contrast between the ideas of Rousseau and Montesquieu are well reflected in Articles 3 and 16 of the “Déclaration des droits de l’homme et du citoyen” of 1789.
See Hans Huber, “Grundsätze in der Auslegung der Wirtschaftsartikel,” 10 Wirtschaft und Recht, 1, 3–5 (1958); Ballerstedt, “Über wirtschaftliche Massnahmegesetze,” in Festschrift Schmidt-Rimpler, 369 (1957).
Holmes, “Law in Science and Science in Law,” 12 Harv. L. Rev., 443, 460 (1899).
Commager, Majority Rule and Minority Rights,46–55 (1943). Indeed, Cornmager’s findings show the Supreme Court at times frustrating congressional attempts to implement such rights. This conclusion obviously must be revised in the light of more recent Supreme Court decisions.
Wolf, Verfassungsgerichtsbarkeit und Verfassungstreue in den Vereinigten Staaten, 228–230 (1961).
Ibid., p. 228. See also the opinion of some Swiss jurists, cited by Schindler, to the effect that so long as it cannot be shown that the government is not prepared to carry out the constitution, then there is no reason for judicial control. In any case, they argue, who is to say that any better or wiser men will sit on a constitutional court than are elected to political office. Schindler “Richterliches Pruefungsrecht and politischer Mehrheitswille,” 74 Z. Schweiz. R., 289, 290 (1955).
See Wengler, Der Begriff des Politischen im internationalen Recht, in Heft 189/ 190 Recht and Staat, 40ff (1956); Scheuner, “Der Bereich der Regierung” in Festschrift Rudolf Smend, 253, 295 (1952).
Cardozo, The Nature of the Judicial Process, 92f (1921); and Schindler, op. cit. (n. 42), p. 302f.
See Bickel, The Least Dangerous Branch, 16ff (1962); and Rostow, The Sovereign Prerogative, Chs. 5 and 6 (1962).
For example Bk. II, chs. 3 and 6 of Rousseau’s Contrat social states: “The general will is always right and tends to the public advantage; but it does not follow that the deliberations of the people are always equally correct. Of itself, the people will always the good, but of itself by no means always see it.” See Friedrich, The Philosophy of Law in Historical Perspective, 123f (Phoenix ed. 1963).
See Commager, op. cit. (n. 39), p. 76ff; Blachly and Oatman, “Some Consequences of Judicial Review,” 1 Z. ausl. öff. R., 500, 506 (1929); Hand, op. cit. (n. 38), p. 73f; and Thayer, cited infra, note 50.
Thayer, John Marshall, 103f (1901). Cf. also Frankfurter, “John Marshall and The Judicial Function,” 69 Harv. L. Rev., 217, 232 (1955).
Friesenhahn, “Wesen und Grenzen der Verfassungsgerichtsbarkeit,” 73 Z. schweiz. R., 129, 158 (1954). See also Leibholz, “Bericht an das Plenum des Bundesverfassungsgerichts zur ‘Status’-Frage,” in Richard Thoma Gutachten (1953), as reprinted in 6 JB oeff. R. 109, 126 at note 25 (1957).
E. Kaufmann, “Die Grenzen der Verfassungsgerichtsbarkeit,” 9 VVdStRL,1, 4 (1952). While granting that in one sense all legal norms can become “political” at one time or another, depending on the reaction of groups within society, he continues: “Aber das ist nicht der Sinn, in dem wir hier von politischen Fragen im Gegensatz zu Rechtsfragen sprechen. Filer uns ist allein wesentlich, ob auf einen Streitfall Rechtsnormen oder Normen anderer Art anzuwenden sind, unabhängig von jedem politischen Beigeschmack oder Nachgeschmack auszuschalten und nur das Recht zum Worte kommen zu lassen.”
Leibholz, Politics and Law, 275 (1965). See also Comments of Leibholz in 20 VVdStRL, 118f (1963); and Friesenhahn, op. cit. (n. 56), p. 18.
See Leibholz, Politics and Law, 273 (1965), pointing out that “there exists in the political and legal sphere, between the political and legal questions, an inner tension, which, in the long run, cannot be removed.”
Friesenhahn, op. cit., (n. 60), pp. 150–52; and his other article, op. cit. (n. 57), pp. 15 and 18. See also Leibholz, Politics and Law, 275f; and his Comments in 10 VVdStRL, 118 (1963); and Kaufmann, op. cit. (n. 62), p. 5f.
Leibholz, Politics and Law, 275; Friesenhahn, op. cit. (n. 60), p. 151f, and his other article, op. cit. (n. 57), p. 18, as well as his Comments in 20 VVdStRL, 121 (1963). See also the somewhat skeptical view of Rupp, “Some Remarks on Judicial Self-Restraint,” 21 Ohio St. L. I., 503, 510–15 (1960), also a Justice of the Federal Constitutional Court.
There was a lively discussion during the early Weimar years whether the provisions in Section II of the German Constitution, concerning the protection of individual rights, were concrete enough (no vaguer than the United States Bill of Rights) to permit their direct application, or simply program provisions to be implemented by the legislature. See Kägi, op. cit. (n. 72), pp. 131–34; and Rupp, “Judicial Review in the Federal Republic of Germany,” 9 Amer. J. Comp. L., 29, 31 (1960). The arguments employed at that time against the propriety of judicial interpretation were taken from the strict view of Montesquieu discussed in the previous Section. See Leibholz, op. cit. (n. 60), p. 123.
See Friesenhahn, op. cit. (n. 57), p. 18; and Leibholz, op. cit. (n. 59), p. 61f. Leibholz, for example argues in the same paragraph: “Der ermittelte Gehalt der verfassungsrechtlichen Normen verdeutlicht daher grundsätzlich nur bestehendes Verfassungsrecht. Nur ist dieses nicht in einem statischen Sinne als etwas fest Fixiertes zu begreifen… Insofern hat die Rechtssprechung des Bundesverfassungsgerichts… auch einen schöpferischen Charakter. Nur ändert diese Feststellung nichts daran, dass, soweit das Bundesverfassungsgericht Verfassungsrecht inhaltlich des näheren feststellt und konkretisiert, das richterlich ‘erkannte’ Verfassungsrecht den Charakter von Gerechtigkeit und Vernunft verkörpernden ‘standing-law’ und nicht von ‘judge-made-law’ hat.” (Emphasis added.) But cf. Krüger, “Verfassungswandlung und Verfassungsgerichtsbarkeit,” in Festschrift Rudolf Smend, 151 (1962), who has made a notable attempt to lay bare the difficulties of reconciling judicial creativity with the traditional approach to constitutional construction.
See Leibholz, id., p. 276; and the discussion of Schneider, “Prinzipien der Verf assungsinterpretation,” 20 VVdStRL, 1, 6ff (1963).
See esp. Forsthoff, Recht und Sprache, Prolegomena zu einer richterlichen Hermeneutik, 46 (1940); his “Die Umbildung des Verfassungsgesetzes,” in Festschrift Carl Schmitt, 35 (1959), and his “Zur Problematik der Verfassungsauslegung,” 7 Res publica, 39f (1961), emphasizing the historical method. See also the views of Thoma in his Gutachten: Die Rechtsstellung des Bundesverfassungsgerichts, 23f (1953).
Bickel, The Least Dangerous Branch, 102 (1962). See also Esser, Grundsatz und Norm, 256, speaking of the general disappearance of the “Illusion einer historisch-genuinen Auslegungsmöglichkeit, welche auf die Lenkung und Anweisung durch aktuelle Rechtsgrundsätze verzichten könnte.” In any case, says Esser (p. 258f), the isolated rules or means of interpretation offer no standards for interpretation.
Drath, “Aussprache,” in 20 VVdStRL, 109 and also 106f (1963). See also similar remarks of Durig in the same “Aussprache,” ibid., p. 115, concluding: “Ich meine, dass das BVerfG seinen Weg zur Aufstellung eines positiven Wertkatechismus ruhig fortsetzen sollte. Die kommende Generation wird ihm dafuer dankbar sein.”
See the critique of Forsthoff, op. cit. (n. 82: Die Umbildung). By way of concrete example, see the inarticulated economic judgments made by the German Constitutional Court in the “Apotheke” Case, 7 BVerfG 377 (1958), discussed by Kriiger, “Verfassungswandlung und Verfassungsgerichtsbarkeit,” in Festschrift Rudolf Smend, 151, 167–69 (1962).
Leibholz, op. cit. (n. 59), p. 70. See also Diirig in “Aussprache,” 20 VVdStRL, 115 (1963): “Der Verfassungsrichter kommt m.E. ohne diesen ständigen Blick auf die Folgen seines Spruches nicht aus.”
See 7 BVerfG 342, 351 (1958); and 2 BVerfG 380, 401 (1953), where the Court declared: “Allerdings kann eine Verfassungsbestimmung einen Bedeutungswandel erfahren, wenn in ihrem Bereich neue, nicht vorausgesehene Tatbestände auftauchen oder bekannte Tatbestände durch ihre Einordnung in den Gesamtablauf einer Entwicklung in neuer Beziehung oder Bedeutung erscheinen.” See also Leibholz, op. cit. (n. 59), p. 70. But cf. comment in note 98 infra.
Friesenhahn, Gutachtliche Stellungnahme zu den beim Bundesverfassungsgericht anhängigen Verfahren, die die Gewährung von Zuschüssen aus dem Bundeshaushaltsplan an die politischen Parteien zum Gegenstand haben, 72 (mimeo, April 1966). The argument presented by Professor Friesenhahn is designed to demonstrate that the German Constitution contains no clearly definable norm which would forbid the German Parliament from appropriating money for the support of political parties.
See discussion in text supra, p. 115ff, and infra, p. 214ff. See also Ehmke, op. cit. (n. 73), pp. 59–72; Scheuner, “Aussprache,” 20 VVdStRL, 108f. 111f and 125f; Ermacora, Verfassungsrecht durch Richterspruch, 30f (1960); and Bachof, Summum lus Summa Iniuria (1963).
See Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 407–8 (1932), where Justice Brandeis, after pointing out 69 cases over-ruling earlier opinions, stated: “The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” See also Cardozo, ibid., p. 150f, who urges “less hesitation in frank avowal and full abandonment” of obsolete or wrong rules.
Hand, the Bill of Rights, 33f, 37f, 55f, and 70–72 (1960): the Bill of Rights must be read as “admonitory or hortatory, not definite enough to be guides on concrete occasions, prescribing no more than the temper of detachment, impartiality and an absence of self-directed bias that is the whole content of justice.” Cf. text at note 78 supra.
Wechsler, op. cit. (n. 117), p. 19. Cf. Hart. “Foreward: The Time Chart of the Justices,” 73 Harv. L. Rev.,84, 99 (1959): “Only opinions which are grounded in reason and not on mere fiat or precedent can do the job which the Supreme Court of the United States has to do.” For the Court is “charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law and impersonal and durable principles for the interpretation of statutes and the resolution of difficult issues of decisional law.”
Although Wechsler contends that he does not wish to pose “an antithesis between ‘making an enduring contribution to the quality of our society’ and resting on ‘neutral principles’,” he concludes “that it is not enough that a decision makes such a contribution unless it also rests on neutral principles…” Due to the likely conflict between “neutral principles” and their undesirable results, Pollak rightly concludes, the judge’s estimate of the likely impact on American life of a proposed constitutional decision would have to remain “a thing apart from the competing constitutional principles whose neutral accomodation yields one or another constitutional result.” Where the two clash, “neutral principles” must win. See discussion in Pollak, “Constitutional Adjudication: Relative or Absolute Neutrality.” J. Pub. L. 48, 60f and 53f (1962).
Wechsler, op. cit. (n. 117), p. 33f. Pollack, “Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler,” 108 U. Pa. L. Rev., 1 (1959), argues that if Wechsler means only to eliminate ad hoc decisions through his “neutral principles,” then the School Decision meets Wechsler’s standard. Pollak concedes, however, that Wechsler may be after “bigger game,” as indeed he appears to be, i.e. to eliminate result-oriented decisions altogether.
See criticism of Wechsler’s position on this point by Bickel, The Least Dangerous Branch, 58, 63f and 69 (1962); Mueller and Schwarz, “The Principle of Neutral Principles,” 7 U.C.L.A. Intra. L. Rev., 571, 585f (1960); and Rostow, the Sovereign Prerogative, 38f (1962).
Esser, Grundsatz and Norm, 207f (1956), has pointed out that in both the common and code law traditions principles have a “systematizing” function. In the latter, however, this role is much more strictly disciplined. Wechsler’s theory may be viewed as a step toward code law thinking by forcing the guiding principles to be formulated precisely in the “rule of the case.”
See e.g. Bickel, op. cit. (n. 126), p. 63f; and Miller and Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Ch. L. Rev., 661, 687–89 (1959–60). But cf. Gunther, “The Subtle Vices of the ‘Passive Virtues’: A Comment on Principle and Expediency in Judicial Review,” 64 Colum. L. Rev., 1,13–25 (1964).
See discussion of Krauss, “Die Gewaltenteilung bei Montesquieu,” in Festschrift Carl Schmitt, 103, 104 and 112f (1959). Some, like Learned Hand, The Bill of Rights (1960), also take a command view of the law, but do not see the judiciary as thereby powerless.
Jahrreiss, “Die Wesensverschiedenheit der Akte des Herrschers und das Problem der Gewaltenteilung,” in his Mensch und Staat, 173, 182f (1959).
See, in particularly, Weber, “Die drei reinen Typen der legitimen Herrschaft,” 187 Preussische Jahrbücher, 1 (1922), reprinted in and discussed at length by Winckelmann, “Legitimitaet und Legalitaet” in Max Webers Herrschaftssoziologie, 25–43 and Appendix (1952). See also Weber, The Theory of Social and Economic Organization, 130–32 and 328ff (transi. by A. M. Henderson and Talcott Parsons, 1947), being Part I of Weber’s Wirtschaft und Gesellschaft (1922).
As Holmes, “Law in Science and Science in Law,” 12 Harv. L. Rev., 443, 460 (1899), has put it: “the claim of our especial code to respect is simply that it exists, that it is the one to which we have become accustomed, and not that it represents an eternal principle….” made the Supreme Court the greatest unifying symbol in American government. Here was the one body which could still the constant debate, and represent to the country the ideal of a government of fundamental principles.l‘2
See Esser, Grundsatz und Norm, 82 (1956); Morgenthau, Politics Among Nations, 409f and 416 (4th ed. 1967); Krüger, “Verfassungswandlung und Verfassungsgerichtsbarkeit,” in Festschrift Rudolf Smend, 151, 165f (1962); and Radbruch, Der Geist des Englischen Rechts, 11 (4th ed. 1956).
See Max Irrboden, “Die Staatsformen,” in his Politische Systeme: Staatsformen, 137, 163–178 (1964), whose theory of the separation of powers attempts to account for this aristocratic trait in the judiciary.
Smend, “Das Bundesverfassungsgericht,” a Festvortrag in Das Bundesverfassungsgericht, 23, 37 (1963).
Arnold, The Folklore of Capitalism, 63f (Yale Paperbound 1961). See also Carl Friedrich, “The Constitution as a Political Force,” in Eckstein and Apter (ed.), Comparative Politics, 133, 139 (1963): the constitution functions “as the most effective symbol of the unifying forces operative in a community.”
Schmitt, Legalität und Legitimität, 14 (1932), contrasts the formality of legality with the substantive justification of legitimacy. See critique of Winckelmann, op. cit. (n. 152), p. 56ff.
Hart, “Forward: The Time Chart of the Justices,” 73 Harv. L. Rev., 84, 99 (1959–60).
See Winckelmann, op. cit. (n. 152), pp. 39–43, who points to the limiting effect of the very premises underlying the modes of legitimacy.
See Cardozo, The Nature of the Judicial Process,57f, 64f, 67 and 112f (1921); and Eichenberger, Die richterliche Unabhängigkeit als staatsrechtliches Problem, 204ff (1960).
Eugene Rostow, The Sovereign Prerogative,177f (1962). See also Roche, “Judicial Self-Restraint,” 49 Amer. Pol. Sci. Rev., 762, 772 (1955): “In short, judicial self-restraint and judicial power seem to be opposite sides of the same coin: it has been by judicious application of the former that the latter has been maintained.”
A matter also may be “political,” it should be noted, because the legal principle at stake involves fundamental social values and principles of governmental organization, because the issues in dispute evoke volatile social consequences and/or because the judicial process is institutionally incapable of adequately treating the problem at hand. See also the discussion by Klein, Bundesverfassungsgericht and richterliche Beurteilung politischer Fragen (1966).
See, for instance, the position of the German courts when faced with the failure of the German parliament to meet its deadline, as set by Article 117 I of the German Basic Law, to implement the Equality Clause for men and women. In refusing to postpone the deadline, the German Federal Constitutional Court declared the Equality Clause to be henceforth applicable and, had parliament not acted soon thereafter, laid the courts open to an immense job of law reformulation. Discussed by Esser, Grundsatz and Norm, 72f and 76–78 (1956).
Though Chief Justice Marshall early stated, in Cohens v. Virginia, 19 U.S. 264, 404 (1821), that the Supreme Court “must take jurisdiction if it should,” i.e. cannot “avoid a measure because it approaches the confines of the constitution,” Bickel has concluded that Marshall’s position “does not describe the system as it is or has been.” Bickel, The Least Dangerous Branch, 261 (1962). See also Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev., 217, 227 (1955).
See the opinion drafted for the school segregation cases by Professor Pollak, “Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler,” 108 U. Pa. L. Rev.,1, 24–30 (1959)
By comparison, as Edmond Cahn points out, the Brown decision (cited supra, n. 188) and its companion case, Bolling v. Sharpe, 347 U.S., 497 (1954), were commendably bland. “Very wisely [Chief Justice Warren] declined the opportunity — one may say the temptation — to indulge in democratic rhetoric. There is not a word of reproach or provocation in either opinion. To his credit, the Chief Justice was less concerned with getting into the anthologies than with presenting the country with a model of rational calm.” Cahn, Confronting Injustice, 330 (1966).
Arnold, “Professor Hart’s Theology,” 73 Harv. L. Rev., 1298, 1311f (1959–60).
Cahn, The Moral Decision: Right and Wrong in the Light of American Law, 19 (1955).
Radbruch, Der Geist des Englischen Rechts, 53 (4th ed. 1956). “The professor, the man of letters,” says Holmes, “gives up one-half of life that his protected talent may grow and flower in peace. But to make up your mind at your peril upon a living question, for purposes of action, calls upon your whole nature.” “Law in Science and Science in Law,” 12 Han’. L. Rev., 443, 452 (1899).
Fitzmaurice, “Some Problems Regarding the Formal Sources of International Law,” in Symbolae Verzijl,153, 172 (1958).
Cahn, The Sense of Injustice 12 (1949). Friedrich, “Justice: The Just Political Act,” in Friedrich and Chapman (eds.), Nomos VI: Justice, 24, esp. 30 and 39f (1964); and his The Philosophy of Law in History Perspective, 199 (Paperback 1963).
See, e.g., the Handwerk Decisions in 13 BVerfG (1963), where the Constitutional Court delayed its judgments four to five years after presentation of argument and while the cases accumulated. See also the delay in the more recent church taxation decisions. The same result is achieved by the United States Supreme Court through use of its certiorari discretion.
In the delicate sphere of political controversies, the Federal Constitutional Court delayed its decision on the constitutionality of the E.D.C. Treaty some months in order to await the outcome of the political process within its own and the French legislature. Furthermore, in the Communist Party Case (5 BVerfG 85 (1956)), the Court delayed its decision five years before declaring the Party unconstitutional, all the while making inofficial inquiries with the government to see if it was really serious in prosecuting the case. The Communist Party had been losing ground rapidly and in all likelihood would have dropped below the five percent clause in the coming years and, therefore, be automatically excluded from the Bundestag. Since the government persisted in pressing its charges, however, the Court was forced finally to render a decision. See, as to both cases, McWhinney, Constitutionalism in Germany, 39f and 32–34 (1962).
See Pacific States Tel. & Tel. Co. v. Oregon,223 U.S. 118, 150 (1912), dismissing for want of jurisdiction a writ of error attacking a state license-tax statute enacted by an initiative procedure, on the claim that this mode of legislation was inconsistent with a Republican Form of Government and violated the Equal Protection Clause and other federal guarantees. The “essentially political nature” of the claim advanced, said the Court, lay in its assault “not on the tax as a tax, but on the State as a State.”
Baker v. Carr, 369 U.S. 186 (1962), reversing the lower court’s decision that it lacked jurisdiction of the subject matter and that the complaint, attacking the Tennessee Apportionment Act of 1901 as in violation of the 14th Amendment, failed to state a claim upon which relief could be granted. Moreover, the Court found that plaintiffs had standing to challenge the Act and that the dispute itself was justiciable, i.e. did not fall within the purview of the “political questions” doctrine.
Thus, in Wesberry v. Sanders, 376 U.S. 1 (1964), the standard “one man, one vote” for congressional elections, which the Court concluded was part of “our fundamental ideas of democratic government,” was derived from a tenuous reading of American constitutional history and from the uncertain constitutional requirement that Representatives of the House be chosen “by the People of the several States.” By virtue of the Equal Protection Clause of the 14th Amendment, this standard then was transplanted to both houses of the State legislatures, in Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann,377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964).
Justice Harlan dissenting, in Reynolds v. Simms, 377 U.S. 590. Just how frail this tautology is in historical perspective is well established in the dissenting opinions of Justice Harlan, ibid., and of Justice Frankfurter, in Baker v. Carr, 369 U.S. 299–324.
Martin Shapiro, Law and Politics in the Supreme Court, 250f (1964). See also Bickel, Politics and the Warren Court, 188 and 197 (1965).
See the concurring opinion of Justice Clark, in Baker v. Carr, 369 U.S. 259, which points out not only that corrective state action was impractical under the circumstances, but also that although remedial action by Congress was theoretically possible, “to date, Congress has never undertaken such a task in any State.”
Whether the issue could have been, and should be, forced within the context of the Reapportionment Cases is of course open to some question. The Court would have had considerable leverage, however, since it could require elections-at-large until satisfactory procedures had been introduced. A similar approach apparently would have been acceptable to Justice Clark, since he dissented from the majority opinion in Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 741, 742f, reasoning that Colorado’s apportionment had been “adopted by the majority vote of every political subdivision in the State.”
Holmes, in Holmes-Laski Letters, vol. 1, p. 249 (1953). Further, as he states in Holmes-Pollock Letters, vol. 1, p. 163 (1941): “[T]he crowd if it knew more wouldn’t want what it does — but that is immaterial.”
This distinction, which is frequently emphasized in the public law literature both in America and on the Continent, has been most recently articulated by Fuller, “Forms and Limits of Adjudication,” unpublished lecture delivered at The Center for the Study of Democratic Institutions (Santa Barbara, Cal., Dec. 29, 1958); and his “Freedom — A Suggested Analysis,” 68 Harv. L. Rev., 1305, 1316ff (1955).
See Truman, The Governmental Process, esp. pp. 488, 495ff (1951); Eichen-berger, Die richterliche Unabhängigkeit als staatsrechtliches Problem, 133f (1960).
For a discussion of this judicial procedure, see discussion in text supra, p. 70f. As an example, see the litigation surrounding the adoption of the European Defense Community Treaty, discussed in McWhinney, Constitutionalism in Germany, 34–40 (1962); Loewenstein, “The Bonn Constitution and the European Defense Community Treaties,” 64 Yale L. J., 805, 809ff (1955); and Weber, “Die Vereinbarkeit des Verteidigungsbeitrags mit dem Grundgesetz,” 78 Arch. öf. f. R., 129 (1952).
The relation of interest groups to their access to the judicial process as well as to the functioning of the political process is discussed, e.g., by Murphy and Pritchett, Courts, Judges and Politics, Ch. 8 (1961); Vase, Caucasians Only (1959); and Schubert, Constitutional Politics, 69–88 (1960).
See Murphy, Congress and the Court, 257f (1962); Eichenberger, op. cit. (n. 234), p. 148.
See Murphy, id., generally, for an analysis of the tension between Congress and the Supreme Court over the years. He concludes that in the exercise of judicial review over Congressional legislation, the Court has followed a pattern in periods of extreme tension: first, an advance in judicial policy, followed by a period of severe criticism by Congress coupled with threats of remedial and/or retaliatory legislative action, and finally a tactical (but only tactical!) retreat of the Court for a time. The latest example of this occurred in the 1950’s, when Congress, stirred by a series of decisions on racial integration and national security (among others), barely failed to pass legislation curbing the Court’s basic authority. Ibid., pp. 245–47. With one exception (in 1802), however, “it is typical of previous Court conflicts that the President and Congress never joined together to press a serious assault on judicial power.” Ibid., p. 261f.
President Jackson flouted the decision of the Supreme Court, written by Chief Justice Marshall, in Worcester v. Georgia (1832), refusing to take action against the State of Georgia for disregarding the Treaty rights of Indians. Jackson was reported to have said: “John Marshall has made his decision, now let him enforce it.” He was unwilling to allow the Court order to precipitate a national crisis. See Warren, The Supreme Court in United States History, vol. II, p. 218f. (1922).
See Note, “Evasions of Supreme Court Mandates in Cases Remanded to State Courts since 1941,” 67 Harv. L. Rev., 1251–59 (1954).
The controversy surrounding the European Defense Community litigation, mentioned supra note 235, was accompanied by an attempt of the Adenauer Government to reduce the majority necessary for the election of Justices to the Federal Constitutional Court from a two-thirds to a simple majority. Although the Court’s jurisdiction, unlike that of the United States Supreme Court, is firmly grounded in the Constitution, the Justices are elected only for a term of 8 years and not for life. The influence of political views in the selection of these Justices is readily admitted. See, e.g., Friesenhahn, “Aufgabe und Funktion des Bundesverfassungsgerichts,” 6 Aus Politik und Zeitgeschichte, 3, 13 (Feb. 10, 1965).
The position of the Supreme Court in Marbury v. Madison (establishing judicial review) is an example of judicial triumph in a moment of weakness. See Kelly and Harbison, The American Constitution, 226–232 (1955). In the Weimar Republic, judicial review was first established by the decision of the Reichtgericht in Zivilsachen, vol. III, p. 320 (Nov. 4, 1925), in which the Court reviewed and affirmed the reevaluation law (Aufwertungsgesetzgebung) under the property rights guarantee of the Constitution. Sec Friesenhahn, “Die Verfassungsgerichtsbarkeit in der Bundesrepublik Deutschland,” in Mosler (ed.), Constitutional Review in the World Today, 89, 96–98 (1962).
In Strader v. Graham, 10 How. 82 (1851), the question arose whether a slave taken into a State which the Missouri Compromise had declared to be free could claim his freedom. The Court refused to consider the status of slaves, ruling that this was a matter purely of state law.
An opinion, similar to that in Strader, ibid., was apparently being prepared when the majority of the Justices learned that the dissenting opinions would cover broader aspects of Congressional control over slavery in the territories. Further, President Buchanan wrote Justice Grier, urging the Court to decide the case fully on the merits. See Swisher, Roger B. Taney, 496–500 (1936).
Saar Treaty Decision, 4 BVerfG 157, 169 (1955), citing Art. 20(3). These rights include not only those presented in the first 19 Articles of the Basic Law, but also by general consensus those contained in Articles 33, 38, 101(1) sentence 2, 103 and 104.
Although the Basic Law does not state explicitly what the proper territorial boundaries of a reunited Germany shall be, the Federal Constitutional Court has interpreted this to be the boundaries of the German Reich as of December 31, 1937. Saar Treaty Decision, 4 BVerfG 164. The new agreement with Poland, if ratified by the German Parliament, would restrict somewhat the western boundaries of Germany.
Although other violations of the Basic Law were alleged, the Court admitted only that the rights guaranteed in Article 20(2) concerning self-determination had not been fully realized by the Saar Treaty. These rights are especially protected, for Article 79(3) forbids their amendment.
BVerfG 169. Indeed, the Court stated that even the authorized discretion of the government ended, “where undeniable fundamental principles of the Basic Law were clearly violated,” namely, if the essence of a civil or individual right (Art. 19(2)) or one of the principles of federal organization, the division of powers and democratic government (Art. 79(3)) were infringed. 4 BVerfG 169f.
Cf. Korematsu v. United States, 323 U.S. 214 (1944), where the Supreme Court, faced with the question of whether to pronounce on the constitutionality of a wartime exclusion order against Japanese-Americans, chose to condone the act essentially as a matter of military necessity. In his sharp dissent, Justice Jackson wrote: ‘But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.“ Ibid., p. 244f.
Mason, Harlan Fiske Stone, 308 (1956). Cf. Murphy, “Courts as Small Groups,” 79 Harv. L. Rev., 1565, 1569 (1966), who concludes: “What may seem inscrutable wisdom to the traditional case analyst may only be deliberate ambiguity designed to accommodate by its very vagueness conflicting doctrines.” Cf. further Murphy, “Marshaling the Court: Leadership, Bargaining and the Judicial Process,” 29 U. Chi. L. Rev., 640 (1962); and Arnold, “Professor Hart’s Theology,” 73 Harv. L. Rev., 1298, 1311–13 (1960).
See Deutsch, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science,” 20 Stan. L. Rev., 169, 219–221 and 228f (1968), who points out that Bickel’s emphasis on principled decisions blinds him to the utility of the per curiam opinion as a mediating device. Curiously enough, Bickel affirms the sparse reasoning of the School Segregation Decisions, for “the less said the less chance of internal disagreement,” and the smaller the target on the outside. “In sum,… here was a decision which, like a poem, ‘should not mean/But be,’ and… the Court saw this and acted on it.” Bickel, Politics and the Warren Court, 212 (1965).
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© 1972 Martinus Nijhoff, The Hague, Netherlands
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Mann, C.J. (1972). The Institutional Foundations of Judicial Decision. In: The Function of Judicial Decision in European Economic Integration. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9483-9_4
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