Law and Politics: Occasional Papers of Felix Frankfurter, 1913-1938

By Archibald MacLeish; E. F. Prichard Jr. et al. | Go to book overview

The Zeitgeist and the Judiciary

This selection is an address delivered by Mr. Frankfurter, then Law Officer of the Bureau of Insular Affairs, at the twenty-fifth anniversary dinner of the Harvard Law Review, in 1912 and published, in substantially the same form, in the Survey for January, 1913. In his 1912 campaign, Theodore Roosevelt had proposed the recall by popular vote of judicial decisions invalidating state social and economic legislation under the "due process" clause of the Constitution; and other political leaders had proposed the recall of judges themselves.

I AM sure that none of us will ever again enjoy the divine feeling of being one of the potentates of the profession that the editorship of the Review afforded; no, not even were we to sit on the Supreme Bench, for it was our frequent and joyous duty to reverse even that tribunal in an infallible judgment of one hundred and sixty-five words. Representing those to whom that luxury is still a green memory, I suppose I am to give expression to the ardor of youth, still untempered by responsibility, and not yet disillusioned by experience.

Last August, the American Bar Association with solemnity adopted vigorous resolutions condemning the recall of judges. I was one of those who favored the resolution, and I should vote for it again. But as I left the meeting, I had a conviction that the action was inadequate, that the American Bar Association fell short of its responsibility in not going beyond negative criticism and inquiring into the cause of the ferment that partly expresses itself in the ill-conceived proposal of the judicial recall. The fallacy of a specific remedy may be crushingly exposed, but we cannot whistle down the wind a widespread, insistent, and well- vouched feeling of dissatisfaction.

-3-

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