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

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

Taft and the Supreme Court

This selection appeared as an unsigned editorial in the New Republicfor October 27, 1920.

Mr. Wilson is in favor of a latitudinarian construction of the Constitution of the United States, to weaken the protection it should afford against Socialist raids upon property rights. . . .

He has made three appointments to the Supreme Court. He is understood to be greatly disappointed in the attitude of the first of these [Mr. Justice McReynolds] upon such questions. The other two [Mr. Justice Brandeis and Mr. Justice Clarke] represent a new school of constitutional construction, which, if allowed to prevail, will greatly impair our fundamental law. Four of the incumbent Justices are beyond the retiring age of seventy, and the next President will probably be called upon to appoint their successors. There is no greater domestic issue in this election than the maintenance of the Supreme Court as the bulwark to enforce the guarantee that no man shall be deprived of his property without due process of law. . . .

THESE are the views of ex-President Taft, reputedly one of our greatest authorities in constitutional law. The lay reader of his article in the October Yale Review might naturally assume that Justices Brandeis and Clarke are a pair of firebrands who, as members of the Supreme Court, have enunciated novel and revolutionary doctrines. If Mr. Taft's words mean anything they mean that a study of the opinions of the Supreme Court will show that Brandeis and Clarke form a group apart from the other members of the Court, and, particularly, that in cases involving the due process clause these two Justices have gone off on frolics of their own--frolics strange and disruptive.

Suppose, however, some lay reader, with a curiosity exceeding his respect for Mr. Taft's weighty ipse dixit, retained some re

-37-

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